The Central Law College: Criminology and Penology (Fa10B) - Lecture Notes - Prepared by Sudharshini S

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The Central Law College

CRIMINOLOGY AND PENOLOGY (FA10B) – LECTURE NOTES -
PREPARED BY SUDHARSHINI S
UNIT - I
Introduction:
In any study on any subject, it is necessary at the beginning to have a conception

of the subject with some sort of a definition so as to be able to do proper justice
to the study. Further, an analysis of the subject in an objective manner is also a
necessity and hence, it has been tried, in this chapter to look at crime to form a
conception of it along with analysis of various definitions put forth by various
jurists, criminologists and sociologists to adopt a definition found suitable for
the study. The very first question that would arise in proceeding with the study is
- What is crime? This question has to be answered at the very outset It is indeed
a Herculean task to define crime. It has been always regarded as a matter of
great difficulty. R.C. Nigam says that to answer the question, as to what is crime,
it is to be known at first, what is Law, because these two questions are closely
interrelated. Traditionally, it is known that law is a command enjoining a course
of conduct A crime may, therefore, be an act of disobedience to such a law
forbidding or commanding it. But then, sometimes, disobedience of all laws may
not be a crime, for instance, disobedience of civil laws. Therefore, crime would
mean something more than mere disobedience of a law.
Definition of crime:
The concept of crime involves the idea of a public as opposed to a private wrong
with the consequent intervention between the criminal and injured party by an
agency representing the community as whole. Crime is thus the international
commission of an act deemed socially harmful; or dangerous and the reason for
making any given act a crime is the public injury that would result from its
frequent participation. The society therefore takes steps for its prevention by
prescribing specific punishments for each crime.
1. The word ‘crime’ is of origin viz; ‘Crimean’ which means ‘charge’ or

‘offence’ Crime is a social fact.
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2. The Waverly Encyclopaedia defines it as, “An act forbidden by law and for
performing which the perpetrator is liable to punishment”.
3. James Anthony Froude (1818-94) wrote, “Crime is not punished as offence

against God, but as prejudicial to society”.
4. Sir John Hare (1844 - 1921) Explains, “Crimes sometimes shock us too much:
Vices always too little”.
5. Dr. Gillian J.L. points out, “More important is the feeling of danger to
ourselves and our property than the criminal–induces”.
Criminology perspectives:
As we have indicated, there are competing definitions of crime. This produces

kinds of responses to crime. Criminologists vary in how they approach the study
of crime. For the sake presentation, it is useful to present ideal types of the
various theoretical strands within criminology. Of course an ideal type does not
exist in the real world, rather the intention behind the construction of an ideal
type is to obstruct exaggerate these elements in order to highlight the general
tendency or themes of a particular perspective. So, an ideal type is an analytical
tool, not a moral statement about what it ought to be. It refers to a process of
identifying different aspect of social phenomena and combining them into a
typical model.
There are tree broad levels of criminology explanation;
a) Individuals
b) Situational
c) Social-structural
Different theories within criminology tend to locate their main explanation for
criminal behavior at one of these levels. Occasionally, a theory attempt to
combine all three levels in order to provide a more sophisticated and
comprehensive picture of crime and criminality.
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a) Individual; The main focus is on the personal or individual characteristics of

the offender or victim. The study may consider e.g. the influence of
appearance, dress, public image or things such as tattoos. This level of
analysis tends to look at the psychological or biological factorswhich are said
to have an important role in determining why certain individuals engage in a
criminal activity. The key concern is to explain crime or deviant behavior in
terms of the choices or characteristics of the individual person.
b) Situational; The main site of analysis is the immediate circumstances or
situations within which criminal activity or deviant behavior occurs.
Attention is directed to the specific factors that may contribute to an event
occurring such as how the participants define the situations, how different
people are labeled by the others in the criminal justice system and the
opportunities avail for the commission of certain types of offences.
c) Social-structural; this approach tends to look at crime in terms of the broad
social relationships and the major social institutions of society as a whole.
The analysis makes references to the relationship between classes, sexes,
different ethnic and racial groups, the employed and unemployed; and
various other social divisions in society. It can also involve the investigation
of the operation specific institutions such as indication, family, work and the
legal system in the construction of social responses to crime and deviant
behavior.
Clinard and Quincy in their Criminal Behaviour Systems: A Topology, 1967

have mentioned the following six types of crime:
1. Violent Personal Crimes

2. Occasional Property Crimes
3. Occupational Crime
4. Political Crimes
5. Public Order Crimes
6. Conventional Crimes
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Definition of Criminology:
"Criminology" is derived from the Latin crimen, which means accusation, and
the transliterated Greek logia, which has come to denote "the study of."
Therefore, the term literally means "the study of crime."
Criminology is a branch of sociology and has, in effect, been studied in one way
or another for thousands of years. Despite its long history, though, it has only
been in recent years that criminology has been recognized as a scientific
discipline in its own right.
Criminology is the scientific study of crime, including its causes, responses by

law enforcement, and methods of prevention. It is a sub-group of sociology,
which is the scientific study of social behaviour. There are many fields of study
that are used in the field of criminology, including biology, statistics,
psychology, psychiatry, economics, and anthropology.
Just as criminology is a sub-group of sociology, criminology itself has several

sub-groups, including:
• Penology: the study of prisons and prison systems
• Biocriminology: the study of the biological basis of criminal behaviour
• Feminist criminology: the study of women and crime
• Criminalistics: the study of crime detection.
Need for Criminal Study:
 Increase in the horrendous growth of crime

 Larger damage on the physiological and psychological conditions of the
human society
 Criminal can be redeemed, reculturisation of criminal behaviour
 Scientific analysis of the causes of crime
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 Control of crime
 Identify the causes of crime, identification and analysis of basic
components of human behaviour.
 Criminology as a source of philosophy of life.
Importance of Criminology
a) It is important for the understanding of the individual and the best way to
treat and reform him/her.
b) For lawyers; to allow them to better understand their client and their
particular circumstances for purposes of giving proper legal advice and pursuing
a logical line of defense.
c) For judicial officers to be able to understand the offender for the purpose
of awarding appropriate sentencing and also understand the society’s
perspectives and emotions on a two-given offence.
d) For law enforcement for purposes of investigation, prosecution,

surveillance and crime prevention.
e) For prison officers, social workers, psychologists, etc to understand the

criminal better or more.
f) To enhance official understanding of criminology, the types of offences,

the prevalence of offences committed generally or specifically by a class of
people or in certain localities. This kind of understanding is supported by the
date which is important for crime detection and control.
The government is based to plan better in terms of allocation of resources

towards fighting different types of crime.
g) For the vocational criminologist, he will also be concerned with research

that will lead to alternative theories that can lead to improving the immediate
practices of the criminal justice system, to bring about reform of some kind e.g.
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a program, an institution or strategy. Often, the goal is to solve an administrative

difficulty within the existing system.
h) For the critical or analytical strand of criminology, the research or study

will be aimed at making major changes within the existing institutional
frameworks of the criminal justice system. The approach looks into the deeper
philosophical questions of the day and also the bigger questions as to why do we
continue to have and use institutions such as prisons when we do not work to
prevent offending or re-offending? The approach here is not to suggest
improvement, to the existing penal system; but to question whether it is valid or
viable to begin with. Indeed, on informed opinion might simply advocate. Both
approaches are however, relevant.
Schools of Criminology:
It has been generally accepted that a systematic study of criminology was first
taken up by the Italian scholar, Ceasare Bonesana Marchese de Becaria (1938-
94) who is known as the founder 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. Thus the ‘theories of criminology’ or ‘the schools of
criminology’ are of a later origin.
Meaning of the ‘School of Criminology’:
Edwin Sutherland pointed out that a school of criminology connotes
“the system of thought which consists of an integrated theory of causation of

crime and of policies of control implied in the theory of causation”.
Therefore, a school of criminology implies the following three important points:

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1. The adherents of each school try to explain the causation of crime and
criminal behavior in their own way relying on the theory propounded by the
exponent of that particular school.
2. Each school of criminology suggests punishment and preventive measures to

suit its ideology.
3. And, each of the school represents the social attitude of people towards crime
and criminal in a given time.
In an attempt to find a rational explanation of crime, a large number of theories

have been propounded. Various factors such as evil spirit, sin, disease, heredity,
economic maladjustment etc. have been put forward either singly or together to
explain criminality. With the advance of behavioral sciences, monogenetic
explanation of human conduct is no longer valid and the modern trend is to
adopt an eclectic view about the genesis of crime. However, some criminologists
still tend to lay greater emphasis on physical traits in order to justify exclusive
resort to correctional methods for the treatment of offender.
Pre-Classical School of Criminology:
The period of seventeenth and eighteenth century in Europe was dominated by

the scholasticism of Saint Thomas Aquinas. The dominance of religion in State
activities was the chief characteristic of that time. In political sphere, thinkers
such as Hobbes and Locke were concentrating on social contract as the basis of
social evolution. The concept of Divine right of king advocating supremacy of
monarch was held in great esteem. As scientific knowledge was yet unknown the
concept of crime was rather vague and obscure. There was a general belief that
man by nature is simple and his actions are controlled by some super power. It
was generally believed that a man commits crime due to the influence of some
external spirit called ‘demon’ or ‘devil’. Thus an offender commits a wrongful
act not because of his own free will but due to the influence of some external
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super power. No attempt was, however, made to probe into the real causes of
crime. This demonological theory of criminality propounded by the exponents of
pre-classical school acknowledged the omnipotence of spirit, which they
regarded as a great power.
The pre-classicals considered crime and criminals as an evidence of the fact that
the individual was possessed of devil or demon 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 influence. An ordeal is an ancient manner of trial in criminal cases.
When an offender pleaded “not guilty”, he might choose whether he would put
himself for trial upon God and the country, by 12 men or upon God only, and
then it was called ‘the judgment of God’, presuming that God would deliver the
innocent. Examples of such ordeals are, throwing into fire, throwing into water
after tying a stone to his neck, administration of oath by calling up God’s wrath,
trial by battle, etc.
Trial by battle was common mode of deciding the fate of criminal. The oaths and
ordeals played a very important role in the ancient judicial system in
determining the guilt of the offender. The justification advanced for these rituals
was the familiar belief that “when the human agency fails, recourse to divine
means of proof becomes most inevitable”. Though these practices appear to be
most irrational and barbarous to the modern mind, they were universally
accepted and were in existence in most Christian countries till thirteenth century.
The Roman law completely ignored the system of ordeals and it was forbidden
in Quran.
The right of society to punish the offender was, however, well recognized. The
offender was regarded as an innately depraved person who could be cured only
by torture and pain. The evolution of criminal law was yet at a rudimentary
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stage. Hobbes suggested that fear of punishment at the hands of monarch was a
sufficient deterrent for the members of early society to keep them away from
sinful acts which were synonymous to crimes. Thus the theosophists, notably St.
Thomas Aquinas and the social contract writers such as Donte Alighieri,
Machiavelli, Martin Luther and Jean Bodin provided immediate background for
Beccaria’s classical school at a later stage. The pre-classical thinking, however,
withered away with the lapse of time and advancement of knowledge.
The Classical School:
The Classical School in criminology is usually a reference to the eighteenth-

century work during the Enlightenment by the utilitarian and social contract
philosophers Jeremy Bentham and Cesare Beccaria. Their interests lay in the
system of criminal justice and penology and, indirectly through the proposition
that "man is a calculating animal", in the causes of criminal behaviour. The
Classical school of thought was premised on the idea that people have free will
in making decisions, and that punishment can be a deterrent for crime, so long as
the punishment is proportional, fits the crime, and is carried out promptly.
Beccaria, the pioneer of modern criminology 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 was much influenced by the utilitarian
philosophy of his time which placed reliance on hedonism, namely, the “pain
and pleasure theory”. As Donald Taft rightly put it, this doctrine implied the
notion of causation in terms of free choice to commit crime by rational man
seeking pleasure and avoiding pain.
Main Reforms Advocated by the Classical School:
The system of law, its mechanisms of enforcement and the forms of punishment
used in the eighteenth century were primitive and inconsistent. Judges were not
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professionally trained so many of their decisions were unsatisfactory being the

product of incompetence, capriciousness, corruption or political manipulation.
The use of torture to extract confessions and a wide range of cruel punishments
such as whipping, mutilation and public executions were commonplace. A need
for legal rationality and fairness was identified and found an audience among the
emerging middle classes whose economic interests lay in providing better
systems for supporting national and international trade.
John Locke
John Locke considered the mechanism that had allowed monarchies to become
the primary form of government. He concluded that monarchs had asserted the
right to rule and enforced it either through an exercise in raw power, or through
a form of contract, e.g. the feudal system had depended on the grants of estates
in land as a return for services provided to the sovereign. Locke proposed that all
citizens are equal, and that there is an unwritten but voluntary contract between
the state and its citizens, giving power to those in government and defining a
framework of mutual rights and duties. In Leviathan, Thomas Hobbes wrote,
"the right of all sovereigns is derived from the consent of every one of those who
are to be governed." This is a shift from authoritarianism to an early model of
European and North American democracy where police powers and the system
of punishment are means to a more just end.
Cesare Beccaria (1738-1794)
In 1764, Beccaria published Dei Deliti e Delle Pene ("On Crimes and
Punishments") arguing for the need to reform the criminal justice system by
referring not to the harm caused to the victim, but to the harm caused to society.
In this, he posited that the greatest deterrent was the certainty of detection: the
more swift and certain the punishment, the more effective it would be. It would
also allow a less serious punishment to be effective if shame and an
acknowledgement of wrongdoing was a guaranteed response to society's
judgment. Thus, the prevention of crime was achieved through a proportional
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system that was clear and simple to understand, and if the entire nation united in
their own defence. His approach influenced the codification movement which set
sentencing tariffs to ensure equality of treatment among offenders. Later, it was
acknowledged that not all offenders are alike and greater sentencing discretion
was allowed to judges. Thus, punishment works at two levels. Because it
punishes individuals, it operates as a specific deterrence to those convicted not to
reoffend. But the publicity surrounding the trial and the judgment of society
represented by the decision of a jury of peers, offers a general example to the
public of the consequences of committing a crime. If they are afraid of similarly
swift justice, they will not offend.
In his book "On Crimes and Punishments" Beccaria presented a coherent,

comprehensive design for an enlightened criminal justice system that was to
serve the people rather than the monarchy. According to Beccaria, the crime
problem could be traced not to bad people but to bad laws. A modern criminal
justice system should guarantee all people equal treatment before the law.
Beccaria’s book supplied the blue print. That blue print was based on the
assumption that people freely choose what they do and are responsible for the
consequences of their behavior. Beccaria proposed the following principles:
Laws Should Be Used To Maintain Social Contract: “Laws are the conditions
under which men, naturally independent, united themselves in society. Weary of
living in a continual state of war, and of enjoying a liberty, which became a little
value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy
the rest in peace and security.”
Only Legislators Should Create Laws: “The authority of making penal laws can
only reside with the legislator, who represents the whole society united by the
social compact.”
Judges Should Impose Punishment only in Accordance with the Law: “[N]o
magistrate then, (as he is one of the society), can, with justice inflict on any
other member of the same society punishment that is not ordained by the laws.”
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Judges Should not Interpret the Laws: “Judges, in criminal cases, have no right
to interpret the penal laws, because they are not legislators….Everyman has his
own particular point of view and, at different times, sees the same objects in
very different lights. The spirit of the laws will then be the result of the good or
bad logic of the judge; and this will depend on his good or bad digestion.”
Punishment Should be Based on the Pleasure/Pain Principle: “Pleasure and pain

are the only springs of actions in beings endowed with sensibility….If an equal
punishment be ordained for two crimes that injure society in different degrees,
there is nothing to deter men from committing the greater as often as it is
attended with greater advantage.”
Punishment Should be Based on the Act, not on the Actor: “Crimes are only to
be measured by the injuries done to the society they err, therefore, who imagine
that a crime is greater or less according to the intention of the person by whom it
is committed.”
The Punishment Should be Determined by the Crime: “If mathematical

calculation could be applied to the obscure and infinite combinations of human
actions, there might be a corresponding scale of punishment descending from the
greatest to the least.”
Punishment Should be Prompt and Effective: “The more immediate after the
commission of a crime a punishment is inflicted the more just and useful it will
be….An immediate punishment is more useful; because the smaller the interval
of time between the punishment and the crime, the stronger and more lasting
will be the association of the two ideas of crime and punishment.”
All People Should be Treated Equally: “I assert that the punishment of a noble
man should in no wise differ from that of the lowest member of the society.”
Capital Punishment Should be Abolished: “The punishment of death is not

authorized by any right; for….no such right exists….The terrors of death make
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so slight an impression, that it has not force enough to withstand forgetfulness

natural to mankind.”
The Use of Torture to Gain Confessions Should be Abolished: “It is

confounding all relations to expect…that pain should be the test of truth, as if
truth resided in the muscles and fibers a wretch in torture. By this method the
robust will escape, and the feeble be condemned.”
It is Better to Prevent Crime than to Punish Them: “Would you prevent crimes?
Let the laws be clear and simple, let the entire force of the nation be united in
their defence, let them be intended rather to favour every individual than any
particular classes…. Finally, the most certain method of preventing crimes to
perfect the system of education.”
Perhaps no other book in the history in the history of criminology has had so
great an impact. After the French Revolution, Beccaria’s basic tenets served as a
guide for the drafting of the French Penal Code, which was adopted in 1791.
Jeremy Bentham(1748-1832)
Legal scholars and reformers throughout Europe proclaimed their indebtedness

to Beccaria, but none owed more to him than the English legal philosopher
Jeremy Bentham. Bentham had long and productive career. He inspired many of
his contemporaries, as well as criminologists of future generations, with his
approach to rational crime control.
Bentham devoted his life to developing a scientific approach to the making and
breaking of laws. Like Beccaria he was concerned with achieving “the greatest
happiness of the greatest number.” His work was governed by utilitarian
principles. Utilitarianism assumes that all human actions are calculated in
accordance with their likelihood of bringing happiness (pleasure) or unhappiness
(pain). People weigh the probabilities of present future pleasures against those of
present and future pain.
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Bentham proposed a precise pseudo-mathematical formula for this process,

which he called “felicific calculus.” According to his reasoning individuals are
“human calculators” who out all the factors into an equation in order to decide
whether or not a particular crime is worth committing. This notion may seem
rather whimsical today, but at a time when there were over 200 capital offences,
it provided a rationale for reform of the legal system. Bentham reasoned that if
prevention was the purpose of punishment, and if punishment became too costly
by creating more harm than good, then penalties need to be set just a bit an
excess of the pleasure one might derive from committing a crime, and no higher.
The law exists in order to create happiness for the community. Since punishment
creates unhappiness, it can be justified only if it prevents a greater evil than it
produces. Thus, Bentham suggested if a hanging a man’s effigy produced the
same preventive effect as hanging the man himself there would be no reason to
hang the man.
In this context, the most relevant idea was known as the "felicitation principle",
i.e. that whatever is done should aim to give the greatest happiness to the largest
possible number of people in society. Bentham argued that there had been
"punishment creep", i.e. that the severity of punishments had slowly increased so
that the death penalty was then imposed for more than two hundred offences in
England (Landau, Norma, 2002). For example, if rape and homicide were both
punished by death, then a rapist would be more likely to kill the victim (as a
witness) to reduce the risk of arrest.
Bentham posited that man is a calculating animal who will weigh potential gains
against the pain likely to be imposed. If the pain outweighs the gains, he will be
deterred and this produces maximal social utility. Therefore, in a rational
system, the punishment system must be graduated so that the punishment more
closely matches the crime. Punishment is not retribution or revenge because that
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is morally deficient: the hangman is paying the murder the compliment of

imitation.
But the concept is problematic because it depends on two critical assumptions:
if deterrence is going to work, the potential offender must always act rationally
whereas much crime is a spontaneous reaction to a situation or opportunity; and
if the system graduates a scale of punishment according to the seriousness of the

offence, it is assuming that the more serious the harm likely to be caused, the
more the criminal has to gain.
In this context, note Bentham's proposal for a prison design called the
"panopticon" which, apart from its surveillance system included the right of the
prison manager to use the prisoners as contract labour.
Spiritualistic understandings of crime stem from an understanding of life in

general, that finds most things in life are destiny and cannot be controlled, we
are born male or female, good or bad and all our actions are decided by a higher
being. People have held such beliefs for all of recorded history, “primitive
people regarded natural disasters such as famines, floods and plagues as
punishments for wrongs they had done to the spiritual powers” (Vold, G.
Bernard, T. and Snipes, J. 1998). These spiritual powers gained strength during
the middle ages as they bonded with the feudal powers to create the criminal
justice systems. Under a spiritualistic criminal justice system, crime was a
private affair that was conducted between the offender and the victim’s family.
However this method proved to be too revengeful, as the state took control of
punishment. Spiritual explanations provided an understanding of crime when
there was no other way of explaining crime. However, the problem with this
understanding is it cannot be proven true, and so it was never accepted.
The main tenets of classical school of criminology why noted below

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1. Man’s emergence from the State’s religious fanaticism involved the

application of his reason as a responsible individual.
2. It is the ‘act’ of an individual and ‘not his intent’ which forms the basis for
determining criminality within him. In other words, criminologists are concerned
with the ‘act’ of the criminal rather than his ‘intent’. Still, they could never think
that there could be something like crime causation.
3. The classical writers accepted punishment as a principal method of infliction

of pain, humiliation and disgrace to create ‘fear’ in man to control his behaviour.
3. The propounders of this school, however, considered prevention of crime

more important than the punishment for it. They therefore, stressed on the need
for a Criminal Code in France, Germany and Italy to systematize punishment for
forbidden acts. Thus the real contribution of classical school of criminology lies
in the fact that it underlined the need for a well-defined criminal justice system.
4. The advocates of classical school supported the right of the State to punish the
offenders in the interest of public security. Relying on the hedonistic principle of
pain and pleasure, they pointed out that individualization was to be awarded
keeping in view the pleasure derived by the criminal from the crime and the pain
caused to the victim from it. They, however, pleaded for equalization of justice
which meant equal punishment for the same offence.
5. The exponents of classical school further believed that the criminal law
primarily rests on positive sanctions. They were against the use of arbitrary
powers of Judges. In their opinion the Judges should limit their verdicts strictly
within the confines of law. They also abhorred torturous punishments.
Thus, classical school propounded by Beccaria came into existence as a result of

the influence of writings of Montesquieu, Hume, Bacon and Rousseau. His
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famous work ‘Essays on Crime and Punishment’ received wide acclamation all
over Europe and gave a fillip to a new criminological thinking in the
contemporary west. He sought to humanize the criminal law by insisting on
natural rights of human beings. He raised his voice against severe punishment,
torture and death penalty. Beccaria’s views on crime and punishment were also
supported by Voltaire as a result of which a number of European countries
redrafted their penal codes mitigating the rigorous barbaric punishments and
some of them even went to the extent of abolishing capital punishment from
their Penal Codes.
Major Shortcomings of the Classical School:
The contribution of classical school to the development of rationalized

criminological thinking was by no means less important, but it had its own
pitfalls.
The classical school proceeded on an abstract presumption of free will and relied
solely on the act (i.e., the crime) 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 and varying degrees of
gravity of the offence.
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. It goes to the credit of
Beccaria who denounced the earlier concepts of crime and criminals which were
based on religious fallacies and myths and shifted emphasis on the need for
concentrating on the personality of an offender in order to determine his guilt
and punishment. Beccaria’s views provided a background for the subsequent
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criminologists to come out with a rationalized theory of crime causation which

eventually led the foundation of the modern criminology and penology.
Neo-Classical School:
In criminology, the Neo-Classical School continues the traditions of the

Classical School within the framework of Right Realism. Hence, the
utilitarianism of Jeremy Bentham and Cesare Beccaria remains a relevant social
philosophy in policy term for using punishment as a deterrent through law
enforcement, the courts, and imprisonment
The ‘free will’ theory of classical school did not survive for long. It was soon
realized that the exponents of classical school faultered in their approach in
ignoring the individual differences under certain situations and treating first
offenders and the habitual alike on the basis of similarity of act or crime. The
neo-classists asserted that certain categories of offenders such as minors, idiots,
insane or incompetent had to be treated leniently in matters of punishment
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-classists to distinguish criminals according to their mental depravity was
indeed a progressive step inasmuch as it emphasized the need for modifying the
classical view. Thus the contribution of neo-classical thought to the science of
criminology has its own merits.
When crime and recidivism are perceived to be a problem, the first political
reaction is to call for increased policing, stiffer penalties, and increased
monitoring and surveillance for those released on parole. Intuitively, politicians
see a correlation between the certainty and severity of punishment, and the
choice whether to commit crime. The practical intention has always been to
deter and, if that failed, to keep society safer for the longest possible period of
time by locking the habitual offenders away in prisons (see Wilson). From the
earliest theorists, the arguments were based on morality and social utility, and it
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was not until comparatively recently that there has been empirical research to
determine whether punishment is an effective deterrent.
The main tenets of neo-classical school of criminology can be summarized as

follows
1.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. Thus they justified
mitigation of equal punishment in cases of certain psychopathic offenders.
Commenting on this point, Prof. Gillin observed that neo-classists represent a
reaction against the severity of classical view of equal punishment for the same
offence.
2. Neo-classists were the first in point of time to bring out a distinction between
the first offenders and the recidivists. They supported individualization of
offender a treatment methods which required the punishment to suit the
psychopathic circumstances of the accused. Thus although the ‘act’ or the
‘crime’ still remained the sole determining factor for adjudging criminality
without any regard to the intent, yet the neo-classical school focused at least
some attention on mental causation indirectly.
3. The advocates of this school started with the basic assumption that man acting
on reason and intelligence is a self-determining person and therefore, is
responsible for his conduct. But those lacking normal intelligence or having
some mental depravity are irresponsible to their conduct as they do not possess
the capacity of distinguishing between good or bad and therefore should be
treated differently from the responsible offenders.
4. Though the neo-classists recommended lenient treatment for “irresponsible”

or mentally depraved criminals on account of their incapacity to resist criminal
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tendency but they certainly believed that all criminals, whether responsible or
irresponsible, must be kept segregated from the society.
5. It is significant to note that distinction between responsibility and

irresponsibility, that is the sanity and insanity of the criminals as suggested by
neo-classical school of criminology paved way to subsequent formulation of
different correctional institutions such as parole, probation, reformatories, open-
air camps etc. in the administration of criminal justice. This is through this
school that attention of criminologists was drawn for the first time towards the
fact that all crimes do have a cause. It must, however be noted that though this
causation was initially confined to psychopathy or psychology but was later
expanded further and finally the positivists succeeded in establishing reasonable
relationship between crime and environment of the criminal.
6. Neo-classists adopted subjective approach to criminology and concentrated

their attention on the conditions under which an individual commits crime.
Thus it would be seen that the main contribution of 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. Therefore, besides
the criminal act as such, the personality of the criminal as a whole, namely, his
antecedents, motives, previous life-history, general character, etc., should not be
lost sight of in assessing his guilt. It may be noted that the origin of jury system
in criminal jurisprudence is essentially an outcome of the reaction of neo-
classical approach towards the treatment of offenders.
As to the shortcomings of neo-classical school of criminology, it must be stated

that the exponents of this theory believed that the criminal, whether responsible
or irresponsible, is a menace to society and therefore, needs to be eliminated
from it.
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Positivist School of criminology or Italian School of Criminology (Itabau

Positive School):
The prominent philosophers of this school are:
 Cesare Lombroso
 Raffaele Garofalo
 Enrico Ferri
The positivist school opposed the classical school’s understanding of crime. All
people are different, and thus vary in their understanding of right and wrong; this
needed to be a barometer for punishment. The person and not the crime should
be punished.
Positivism saw its role as the systematic elimination of the free will metaphysics
of the classical school—and its replacement by a science of society, taking on
for itself the task of the eradication of crime, Ian Taylor, Paul Walton and Jock
Young wrote in The New Criminology: For a Social Theory of Deviance. This
new, deterministic movement was consolidated by Enrico Ferri, who
championed the approach then being employed by an Italian military physician,
Cesare Lombroso.
The positive method consisted of carefully observing the characteristics of

criminals to gain insight into the causes of antisocial conduct or behavior. Ferri
did not endorse all of Lombroso’s conclusions, such as that some people are
born criminals and that some physical features, like the shape of a person’s head
or the placement of one’s cheekbones, can predict criminal behavior. However,
Ferri adopted the inductive method and set out to create a science that would
explain the causes of crime within society and the individual offender.
The school started by considering crime a product of heredity and environment.

Instead of criminal conduct, criminal behavior became the focus. Environmental
factors such as societal conditions and pressures interact with hereditary factors
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in a person to cause that individual to be predisposed to criminal acts. The

deterministic school was more concerned with the actual or would-be criminal
rather than criminal conduct.
Positivism’s focus on the individual may have been the greatest contribution to
criminology and the criminal justice system. It led to classifications of offenders,
such as habitual criminals, as well as categories between insanity and sanity. It
also led to the use of psychology in studying offenders, opening the way for
different kinds of sentences and treatments that fit the criminal and not the
crime.
Cesare Lombroso was an Italian physician who changed the approach to crime
from a legalistic to a scientific one.
He disagreed with the classical studies that crime was a characteristic trait of
human nature, and argued that criminality is inherited and that criminals can be
identified by their physiognomy.
He made a clear distinction between criminals and noncriminals on the base of

multiple physical anomalies. It all started when he autopsied the body of
Giuseppe Villela – infamous Italian criminal.
While studying Villela’s skull, he noticed that it had some characteristics that
reminded Lombroso of the skulls of “inferior races” and “the lower types of
apes, rodents, and birds.”
Relying on the theories about physiognomy, degeneration theory, psychiatry and

Social Darwinism, Lombroso based his theory on atavism, explaining that
criminal appears in organisms in a way that it resembles ancestral (prehuman)
forms of life.
Hence, he called criminals modern “savages.” He argued that the physical

characteristics of criminals were reminiscent of apes, lower primates, and early
humans.
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According to Lombroso, criminals cannot easily adapt to the morals, rules, and
laws of the modern civilized society because their “nature” ,which is a result of
an evolutionary throwback (atavism), is more naturally demonstrated through
“primitive or savage acts”, contradictory to those of the modern men.
Sociological theory of crime:
A trend in bourgeois criminal law that originated in the late 19th and early 20th
centuries. The views of the adherents of the sociological school are often eclectic
and seem to be a compromise between the classical and anthropological schools
of criminal law. The sociological school deals with problems of crime and
punishment (classical trend) and the personality of the criminal (anthropological
trend). With regard to the criminal personality and the causes of crime, the
sociological school, recognizing not only biological but also societal
explanations for human behavior, subscribes to the theory advanced by E. Ferri,
a follower of C. Lombroso, that a variety of factors contribute to criminal
behavior. Many sociological criminologists have maintained that criminality
depends on biological factors (including heredity), physical factors (season,
climate, time of day), and societal factors.
Sociological criminologists believed that the science of criminal law

encompasses criminal law in the narrow sense (formulation of law),
criminology, and the measures adopted by a society to prevent crime. Some felt
that the science should also include penology—the study of the treatment of
offenders. The most prominent representatives of the sociological school of
criminal law during its formative period included F. von List and G.
Aschaffenburg (Germany), C. Stooss (Austria), G. Tarde and J. Lacassagne
(France), A. Prins (Belgium), G. van Hamel (Netherlands), and I. Ia. Foinitskii,
Chubinskii, and S. V. Poz-nyshev (Russia).
Today, the influence of the sociological school is appreciable, especially in the

United States. The school has given rise to a number of theories about the causes
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of crime and the methods of crime prevention. According to one theory,

technological progress is to be regarded as an all-embracing cause of criminality.
(This view provided the basis for the Fourth UN Congress on the Prevention of
Crime and the Treatment of Offenders, held in Japan in 1970.) Adherents of this
view analyze only the superficial causes of crime, ignoring the real causes,
which are rooted in the socioeconomic basis of an exploitative regime.
There are several variants of the sociological school of criminal law. The theory
of differential association of E. Sutherland, for example, regards crime as an
age-old phenomenon resulting from contact within small groups. The
representatives of the theory of social disorganization (R. Quinney, J. Pinatel, E.
Schur, R. Clark, T. Sellin, D. Taft) proceed from the assumption that crime
results from anomie, that is, a breakdown in the power of social norms to
regulate men’s actions, both with regard to the immediate environment and the
society as a whole; they see “culture conflict” as the cause of crime
(sociocultural theory). The theory that crime is to be accounted for by a
multiplicity of factors (Guerry, Stanius) distinguishes two groups of
criminogenic factors. The first relates to personality and takes into consideration
heredity, race, sex, age, psychological makeup, ability to deal with others, and
mental faculties. The second group pertains to a person’s surroundings and takes
into consideration social disorganization, urbanization, family, education,
immediate environment, and use of free time
Sociological theories focus on the social situation or environment as a cause of

crime.
Chicago-school researchers concluded that social disorganization causes crime.
Edwin Sutherland developed differential association theory, which claims that

crime is learned.
Ronald Akers contends that crime is learned according to the principles of

operant conditioning.
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Robert Merton’s strain theory of delinquency was influenced by French

sociologist Emile Durkheim’s theory of anomie or “normlessness.”
Travis Hirschi’s social control theory explores why most people do not commit
crimes.
Gresham Sykes and David Matza developed neutralization theory to describe

how offenders deflect feelings of blame and shame.
Edwin Lemert helped develop labeling theory, which contends that people
commit deviant behavior because they consider themselves “outsiders” and
attempt to live up to that label.
Elements of Crime:
The main criminal laws in India include the Indian Penal Code, Indian Evidence
Act and Criminal Procedure Code. People often refer to these three as general
laws. Apart from these three laws, we also have other laws that relate to specific
kinds of offences.
For example, the Prevention of Money Laundering Act deals with particular
financial crimes. Even other laws that do not specifically regulate crimes, like
the Companies Act, contain some offences and penalties.
The most important thing common in all these laws is that they contain certain
basic elements. The following are four basic elements of crime:
 Accused person
 Mens rea
 Actus reus
 Injury
1. Accused person
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No crime can ever occur out of thin air because that would simply be an
accident. In order to constitute a crime, it is important for somebody to commit
it. The law should always be able to pinpoint the person who is responsible for
committing an offence.
The term accused “person” does not suggest that only a human being can
commit offences. According to Section 11 of IPC, the term “person” also
includes a company and an association or body of persons. Therefore, even a
trust, an NGO and a public company can commit offences.
Furthermore, certain offences can implicate more than one person for the same
crime. In such cases, all persons will face trial and may have to face punishment
together.
2. Mens rea
A mere person will never commit a crime unless he possesses some intention to
commit it. The law generally refers to this intention as mens rea, which means
“guilty mind” in Latin.
The term mens rea has been derived from a famous Latin maxim: Actus non
factit reum nesi mens sit rea. This basically means that an act cannot be guilty if
it does not accompany a guilty mind.
The element of mens rea itself comprises of certain inherent elements. These
include intention, motive or knowledge. Which of these elements must exist in
order to constitute an offence generally depends on the relevant provision?
For example, Section 300 of IPC contains various kinds of acts which amount to
the offence of murder. These acts may include an act done with the “intention”
of causing bodily injury sufficient to cause death.
Furthermore, it also includes an act of which the offender has “knowledge” of it

being imminently dangerous. Therefore. we need to look at the relevant
provisions to understand what kind of intention is necessary.
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Crimes in the absence of mens rea:
Although mens rea is an essential element of crime, some offences can occur
without it. For example, Section 304-A of IPC makes death by negligence a
criminal offence. In such cases, a “negligent act” would not include the intention
to cause death. However, negligence or mistake itself is sufficient to constitute a
crime.
3. Actus reus
Merely possessing a guilty mind and thinking of committing a crime is not

enough. The accused person must also act on that intention and do something in
its furtherance. Actus reus basically refers to an act or omission which leads to
the completion of an offence. Both mens rea, as well as actus reus, together are
important to create an offence.
Actus reus can be a positive act, such as stabbing a person to cause his death. It
can also be an omission (failure) to perform an action. For example, driving a
vehicle without a driving license is an omission.
4. Injury
The last of the basic elements of crime is an injury. There can be no crime if no
person faces some kind of an injury. According to Section 44 of IPC, “injury”
means any harm caused to a person illegally either in mind, body, reputation or
property.
Distinguish Crime from Non-Crime:
A Criminal behaviour must satisfy the following conditions:
1. A definite harm must have been caused.

2. The harm must have been outlawed.
3. The harm should have been caused by intentional or reckless conduct.
4. Criminal intent
5. There must be concurrence of mens rea and conduct.
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6. There must be a legally prescribed punishment.
An act to become a crime should have the following two cardinal principles of
criminal liability:
1. Nullum crimen sine poena (No crime without punishment)

2. Nulla poena sine lege (No punishment without law)
Classification of Crime:
1. Crime against person

a. Heinous Crime (murder)
b. Non-Heinous Crime (grievous injury, hurt)
2. Crime against property (theft)
3. Crime against state (waging war)
4. Crime against public decency, public order, public justice (unlawful
assembly)
5. Economic Crimes – White-Collar Crimes (Black Marketing, Tax-
Evasion)
6. Marginal Crimes, Victimless Crimes (begging, homo-sexuality)
7. Super Crimes (terrorism, communal violence)
8. Modern Crimes (computer crimes, nuclear theft)
Crime Statistics:
Crime Statistics is an important and essential input for assessing quality of

lifeand the human rights situation in the society. Crime Statistics broadly reflects
thestatus of operations of Criminal Justice System in a Country. Crime
Statisticsincludes data on Offences - Breaches of the law Offenders - Those who
commitoffences Victims - Those who are offended against In India Crime
statistics aregenerated on the basis of crime records maintained by different law
enforcingagencies like the Police, the Judiciary at different level of
administrative/legaljurisdiction under the federative system of India. These
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statistics are normally readilyavailable and are generally used for assessing how
crime is being dealt with by lawenforcement organisations, However, these
statistics being based on those caseswhich are generally reported to the law
enforcement agencies and recordedthrough all stages of action on the cases
reported. 'Crime Statistics' in India gives anincomplete picture of crime
situations in the country. The deficiency is not particularto India, as some studies
have shown that even data collected by British CrimeStatistics provides a picture
of 30% of the actual crime in the country.
Source of Crime Statistics:
National Crime Records Bureau(NCRB) is the nodal agency at the centre to

collect, compile and disseminate theinformation related with crime. “Crime in
India”, an annual compilation of NCRB, isbeing published since 1953. For this
publication, the information in standardizedformats is being collected from all
the 35 States/UTs as well as from 35 mega cities.
Procedure for Collection of Crime Statistics:
The flow of information starts from the Police stations wherein the cognizable
offence is reported in the form of First Information Report (FIR).FIR sets the
process of Criminal Justice in motion. The information thereafter flows from
District Crime Record Bureaus to State Crime Record Bureau and the same is
finally consolidated by National Crime Records Bureau
Genesis of National Crime Records Bureau:
Setting up of National Crime Records Bureau was recommended by the National

Police Commission set up in 1977. Accepting the recommendations, the
Ministry of Home Affairs constituted a Task Force in 1985 to work out the
modalities for setting up of the National Crime Records Bureau (NCRB). The
Government accepted the recommendations of the Task Force and constituted
the NCRB with headquarters at New Delhi in January, 1986. The objectives of
the Bureau are :
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i. To function as a clearing house of information on crime and

criminals including those operating at National and International
levels so as to assists the investigators, and others in linking crimes to
their perpetrators.
ii. ii. To store, coordinate and disseminate information on inter-state and
international criminals from and to respective States, national
investigating agencies, courts and prosecutors in India without having
to refer to the Police Station records.
iii. iii. To collect and process crime statistics at the National level.
The various crimes that are being recorded, can be grouped under the following
categories for statistical information purposes:
i)Crimes against body: Murder, Attempt to commit murder, Culpable homicide

not amounting to murder,Kidnapping& Abduction, Hurt,Causing death by
negligence;
ii) Crimes against property: Dacoity, Preparation and assembly to commit

Dacoity, Robbery, Burglary and Theft;
iii) Crimes against public order: Riots and Arson;
iv) Economic crimes: Criminal breach of trust, Cheating & Counterfeiting;
v) Crimes against women: Rape, Dowry death, Cruelty by husband or his

relatives, Assault on women with intent to outrage her modesty, Insult to the
modesty of women and Importation of girl from foreign country;
vi) Crimes against children: Child rape, Kidnapping & abduction of children,
Procuration of minor girls, Selling and buying of girls for prostitution, Abetment
of suicide, Exposure and Abandonment, Infanticide and foeticide;
vii) Other IPC crimes.
Crimes under the Special and Local Laws (SLL)

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i) Arms Act, 1959; ii) Narcotic Drugs & Psychotropic Substances Act, 1985; iii)
Gambling Act, 1867; iv) Excise Act, 1944; v) Prohibition Act; vi) Explosives &
Explosive Substances Act, 1884 & 1908; vii) Immoral Traffic (Prevention) Act,
1956; viii) Indian Railways Act, 1989; ix) The Foreigners Act, 1946; x)
Protection of Civil Rights Act, 1955; xi) Passport Act, 1967; xii) Essential
Commodities Act, 1955; xiii) Antiquities & Art Treasures Act, 1972; xiv)
Dowry Prohibition Act, 1961; xv) Prohibition of Child Marriage Act 2006; xvi)
Indecent Representation of Women (Prohibition) Act, 1986; xvii) Copyright Act,
1957; xiii) Commission of Sati Prevention Act, 1987; xix) SC/ST (Prevention of
Atrocities) Act, 1989; xx) Forest Act, 1927; xxi) Other crimes (not specified
above) under Special and Local Laws including Cyber Laws under Information
Technology Act (IT), 2000.
Internationally, data on crime& drugs is maintained by United NationsOffice of

Drugs and Crime (UNODC) . UNODC collects data on crime and theoperation
of criminal justice systems in order to make policy-relevant information
andanalysis available in a timely manner to the international community.
UNODC workson the development of standards for national crime and criminal
justice informationsystems and for the conduct of victimization surveys. The
office also aims toenhance the cross-national comparability of data through the
development of keyindicators and data reporting tools. Periodic reports of
UNODC on selected crimeissues provide in-depth analysis on key topics of
concern at the global and regionallevel.
Recognizing the importance of Crime Statistics, UNODC in cooperation with

United Nations Statistical Division launched the Eleventh United Nations survey
of Crime Trends and the Operations of Criminal Justice Systems (11th UN-CTS)
for the period 2007-08. The major goal of the survey was to collect the data on
incidence of reported crimes and operations of criminal justice system. India has
also participated in the survey. The survey results provide an overview of trends
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and interrelationships between various parts of the criminal justice system to

promote informed decision-making in administration, nationally and
internationally. Data collection through the CTS is conducted on an annual basis.
The First & Second UNCTS was conducted during 1970-80.
The information maintained by UNODC includes:
• Statistics on Crime: Homicide, assaults sexual violence, robbery, kidnapping,

theft burglary, drug related crime.
• Statistics on Drug Use.
• Statistics on Criminal Justice: Persons prosecuted, convicted, detained,

Criminal Justice system resources etc.
UNIT 2
CRIME CAUSATION
There is no one ‘cause’ of crime. Crime is a highlycomplex phenomenon that

changes across culturesand across time. Activities that are legal in onecountry
(e.g. alcohol consumption in the UK) aresometimes illegal in others (e.g. strict
Muslimcountries). As cultures change over time, behavioursthat once were not
criminalised may becomecriminalised (and then decriminalised again –
e.g.alcohol prohibition in the USA). As a result, there is nosimple answer to the
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question ‘what is crime?’ and therefore no single answer to‘what causes crime?’
Different types of crime often have their own distinct causes. The criminogenic
factors can be mainly divided into two forms:
 Individual Centric Causes

 Society Centric Causes
Individual Centric Causes
 Physical type, Criminoid, Criminal Atavism, Phrenology

 Intelligence and mental deficiency, Feeble-mindedness
 Heredity
 XYZ Chromosomal abnormality
 Endocrine disorder, Endocrinology
 Sex
 Opportunity, Poverty
 Alcohol, Drug etc
 Psychology
 Age
 Physical Environment
 Race
 Epilepsy
 Bonger’s theory
Society Centric Causes
 Social Disorganization
 Mobility
 Theory of Differential Association
 Anomie
 Labelling
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 Gang Delinquency
 Family
 Neighbourhood
 Religion
 Education
 Mass Media
 Economic condition
 War and immigration
 Politics
 Police-Population
THE JUVENILE JUSTICE CARE AND PROTECTION ACT, 2000
Reasons for enacting this act -
WHEREAS the Constitution has, in several provisions, including clause (3) of

article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State
a primary responsibility of ensuring that all the needs of children are met and
that their basic human rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the
Convention on the Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a
set of standards to be adhered to by all State parties in securing the best interests
of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasizes social
reintegration of child victims, to the extent possible, without resorting to judicial
proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the
11th December, 1992.
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AND WHEREAS, it is expedient to re-enact the existing law relating to

juveniles bearing in mind the standards prescribed in the Convention on the
Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing rules), the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all
other relevant international instruments.
Constitution Provisions:
Art 15(3) - State can make any special provision for women and children.
Art 39 (e) - It shall be the duty of the state to ensure that the health and strength
of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;
Art 39 (f) - It shall be the duty of the state to ensure that children are given
opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against
exploitation andagainst moral and material abandonment.
Art 45/Now Art 21A - The State shall endeavour to provide, within a period of
ten years from the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years.
Art 47 - The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among
its primary duties and, in particular, the State shall endeavor to bring about
prohibition of the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health.
Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian
to provide opportunities for education to his child or, as the case may be, ward
between the age of six and fourteen years.
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Child in need of care and protection
As per Section 2(d), "child in need of care and protection" means a child -
1. who is found without any home or settled place or abode and without any
ostensible means of subsistence,
2. who resides with a person (whether a guardian of the child or not) and
such person has threatened to kill or injure the child and there is a reasonable
likelihood of the threat being carried out, or has killed, abused or neglected some
other child or children and there is a reasonable likelihood of the child in
question being killed, abused or neglected by that person,
3. who is mentally or physically challenged or ill children or children

suffering from terminal diseases or incurable diseases having no one to support
or look after,
4. who has a parent or guardian and such parent or guardian is unfit or

incapacitated to exercise control over the child,
5. who does not have parent and no one is willing to take care of or whose
parents have abandoned him or who is missing and run away child and whose
parents cannot be found after reasonable inquiry,
6. who is being or is likely to be grossly abused, tortured or exploited for

the purpose of sexual abuse or illegal acts,
7. who is found vulnerable and is likely to be inducted into drug abuse or

trafficking,
8. who is being or is likely to be abused for unconscionable gains,
9. who is victim of any armed conflict, civil commotion or natural calamity;

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Neglected Child:
The term neglected child has been removed from the current JJA and has been
replaced with "Child in need of care and protection" defined above. The old act
defines "neglected juvenile" as a juvenile who-
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any
ostensible means of subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control

over the juvenile; or
(iv) lives in a brothel or with a prostitute or frequently goes to any place used for
the purpose of prostitution, or is found to associate with any prostitute or any
other person who leads an immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal

purposes or unconscionable gain;
Section 2(k) - "juvenile" or "child" means a person who has not completed
eighteenth year of age;
Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to
have committed an offence;
Section 2(b) - "Begging" means -
i. soliciting or receiving alms in a public place or entering into any private

premises for the purpose of soliciting or receiving alms, whether under any
pretence;
ii. exposing or exhibiting with the object of obtaining or extorting alms, any
sore, wound, injury, deformity or disease, whether of himself orof any other
person or of an animal;
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Composition and Procedure followed by Juvenile Justice Court:
Composition
As per Section 4
(1) The State Government may constitute for a district or a group of districts
specified in the notification, one or more Juvenile Justice Boards for exercising
the powers and discharging the duties conferred or imposed on such Boards in
relation to juveniles in conflict with law under this act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate

of the first class, as the case may be, and two social workers of whom at least
one shall be a woman, forming a Bench and every such Bench shall have the
powers conferred by the Code of Criminal Procedure, on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of the first class and the
Magistrate on the Board shall be designated as the principal Magistrate.
(3) No Magistrate shall be appointed as a member of the Board unless he has

special knowledge or training in child psychology or child welfare and no social
worker shall be appointed as a member of the Board unless he has been actively
involved in health, education, or welfare activities pertaining to children for at
least seven years.
(4) The term of office of the members of the Board and the manner in which
such member may resign shall be such as may be prescribed.
(5) The appointment of any member of the Board may be terminated after
holding inquiry, by the State Government, if -
i. he has been found guilty of misuse of power vested under this act,
ii. he has been convicted of an offence involving moral turpitude, and such
conviction has not been reversed or he has not been granted full pardon in
respect of such offence,
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iii. he fails to attend the proceedings of the Board for consecutive three months
without any valid reason or he fails to attend less than three fourth of the sittings
in a year.
 iii.) he fails to attend the proceedings of the Board for consecutive three
months without any valid reason or he fails to attend less than three
fourth of the sittings in a year.
(4) In the event of any difference of opinion among the members of the Board
in the interim or final disposition, the opinion of the majority shall prevail, but
where there is no such majority, the opinion of the principal Magistrate, shall
prevail.
Section 6 - Powers of the Board:
(1) Where a Board has been constituted for any district or a group of districts,
such Board shall, have power to deal exclusively with all proceedings under this
Act, relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be
exercised by the High Court and the Court of Session, when the proceedings
comes before them in appeal, revision or otherwise.
Orders that can be passed for delinquent children
Section 15 - Orders that may be passed regarding a Juvenile
1. Where a Board is satisfied on inquiry that a juvenile has committed an

offence, then notwithstanding anything to the contrary contained in any other
law for the time being in force, the Board may, if it thinks so fit,-
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(a) allow the juvenile to go home after advice or admonition following

appropriate inquiry against and counseling to the parent or the guardian and the
juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is
over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed
under the care of any parent, guardian or other fit person, on such parent,
guardian or other fit person executing a bond, with or without surety, as the
Board may require, for the good behavior and well-being of the juvenile for any
period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed
under the care of any fit institution for the good behavior and well-being of the
juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age
for a period of not less than two years;
ii. in case of any other juvenile for the period until he ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having regard to the nature of
the offence and the circumstances of the case it is expedient so to do, for reasons
to be recorded, reduce the period of stay to such period as it thinks fit.
2. The Board shall obtain the social investigation report on juvenile either
through a probation officer or a recognized voluntary organization or otherwise,
and shall take into consideration the findings of such report before passing an
order.
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3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is
made, the Board may, if it is of opinion that in the interests of the juvenile and of
the public, it is expedient so to do, in addition make an order that the juvenile in
conflict with law shall remain under the supervision of a probation officer
named in the order during such period, not exceeding three years as may be
specified therein, and may in such supervision order impose such conditions as it
deems necessary for the due supervision of the juvenile in conflict with law .
Provided that if at any time afterwards it appears to the Board on receiving a

report from the probation officer or otherwise, that the juvenile in conflict with
law has not been of good behavior during the period of supervision or that the fit
institution under whose care the juvenile was placed is no longer able or willing
to ensure the good behaviour and well-being of the juvenile it may, after making
such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a
special home.
The Board shall while making a supervision order under sub-section (3), explain
to the juvenile and the parent, guardian or other fit person or fit institution, as the
case may be, under whose care the juvenile has been placed, the terms and
conditions of the order shall forthwith furnish one copy of the supervision order
to the juvenile, the parent, guardian or other fit person or fit institution, as the
case may be, the sureties, if any, and the probation officer.
In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that

while allowing the release of a juvenile, the court should consider the following
- circumstances of the case, circumstances of the accused, age, and family
background.
Section 16 :Orders that may not be passed against a Juvenile
(1) Notwithstanding anything to the contrary contained in any other law for the
time being in force, no juvenile in conflict with law shall be sentenced to death
or life imprisonment, or committed to prison in default of payment of fine or in
default of furnishingsecurity :
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(2) On receipt of a report from a Board under sub-section (1), the State
Government may make such arrangement in respect of the juvenile as it deems
proper and may order such juvenile to be kept under protective custody at such
place and on such conditions as it thinks fit:
Provided that Provided that where a juvenile who has attained the age of sixteen
years has committed an offence and the Board is satisfied that the offence
committed is of so serious in nature or that his conduct and behavior have been
such that it would not be in his interest or in the interest of other juvenile in a
special home to send him to such special home and that none of the other
measures provided under this Act is suitable or sufficient, the Board may order
the juvenile in conflict with lawto be kept in such place of safety and in such
manner as it thinks fit and shall report the case for the order of the State
Governmentthe period of detention so ordered shall not exceed the maximum
period of imprisonment to which the juvenile could have been sentenced for the
offence committed.
In RejeshKheton vs State of W B, 1983, it was observed that the main object of

the provision contained in Section 16 of the act is to prevent the juvenile from
the contact of hardened criminals so that they are saved from contamination.
In Sheela Barse vs UOI , AIR 1986, it was held that juveniles should not be
held in jail but in Shelter Homes.
Constitution of a child welfare committee in a district
Inquiry – Section 33
Children’s Home – Sec34(1)
Observation Home - Section 8
Special Home - Section 9
Bail to Juvenile - Section 12

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Protections given by the legislature and the judiciary to juvenile delinquents
Protection by Legislature - The legislature has enacted several laws for the
protection of Juveniles. Most important among them is Juvenile Justice (Care
and Protection) Act, 2000.
Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000, several measures
have been adopted to ensure that a juvenile is not punished or treated like
hardened criminals. Some of the measures are -
1. Hearing of cases involving juvenile by Juvenile Justice Board
2. Bail Provisions for juvenile
3. No prison term to juvenile.
4. No joint proceeding of Juvenile and Non Juvenile
5. Removal of disqualification attached to conviction
Social Protection
Juvenile Justice Act also contains measures to ensure that a juvenile in conflict
of law is given opportunities to reform.
1. Establishment of Observation and Special Home
2. Education and Training facilities
Preventive Measures
1. Several acts such as employment of juveniles in dangerous activities,

forcing juveniles to beg, or steal, or giving intoxicating substances to a juvenile,
publication of names or other details of a juvenile in conflict of law in media,
have been made cognizable offences by JJA.
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2. Supervision by Probation Officer to ensure that a juvenile is not

influenced by bad elements.
Several other acts such as Factories Act, 1948 include provisions for protection
of Juveniles.
Constitutional Provisions
Article 21A - Right to education
Article 24 Prohibition of employment of children in factories, etc. No child

below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.
Article 39 provides that that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and
material abandonment.
Article 45 Provision for free and compulsory education for children
Protections given by Judiciary
Judiciary has always been very sympathetic to the cause of Juveniles. Even
before appropriate laws were enacted, Judiciary promoted directives for the
protection of juveniles through its judgement. For example, it was the judiciary,
which emphasized on Education for children by making it a fundamental right
under Article 21.
Preventive and Curative programmes for Juvenile Delinquency:

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 Correctional and Rehabilitation Centres

 Identification of Political delinquency
 Moral Education
 Counteracting delinquent propensities
 Community programmes
Case laws:
Raghubir vs State of Haryana

Satto Vs Satte of U.P
Munna and others Vs State of U.P
Sunil Kumar Vs State
Jeyachandra and another Vs State of U.P
UNIT 3
TYPES OF CRIME
White collar crimes:
White-collar crime is relatively a new idea. It has been present in courtyards for
quite a long time but the idea may still be ambiguous for some. Lawyers and law
practitioners continue their dispute regarding the grounds and scope for white-
collar crimes. It has many aspects that are viable for scrutiny and further
interpretation to clear some of its grey areas.
White-collar crime was defined by Edwin Sutherland as a “crime committed by
a person of respectability and high social status in the course of his occupation.”
Since this term was coined by Sutherland in 1939 during his speech for
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American Sociological Society, debates have risen as to what particular crimes

will be considered as white-collar crimes. In general, and ambiguous terms, non-
violent crimes for financial gain were considered to be under this category.
Some of the most common activities under white collar crimes include antitrust
violations, different types of fraud (computer and Internet, credit card,
bankruptcy, mail, financial and healthcare frauds), insider trading and
environmental law violations. Powers of the members of the government,
through another means of checks and balances, are also limited by including
public corruption and money laundering under white-collar crimes as well.
In the modern judicial systems, common sanctions given to white-collar crimes

offenders include house arrest, fines and financial penalties, sentences of up to
30 years, and offenders of economic crimes can be sentenced as much as that of
offenders for violent street crime. The sentencing guidelines are particularly
applied by computing the effects or loss caused by the fraudulent acts.
Despite the continuous development of the concept of white-collar crimes, no

consensus has been made about a criminology theory that explains white-collar
crimes. Experts of the sociology, legal, and criminology areas have clashing
theories.
Blue-Collar Crime
Blue-collar crimes are crimes committed by people who are from a lower social
class. Learn more about blue-collar crimes from examples and test your
knowledge with a quiz.
Blue-collar crime is a term used to describe crimes that are committed primarily
by people who are from a lower social class. This is in contrast to white-collar
crime, which refers to crime that is usually committed by people from a higher
social class.So, where does the term 'blue collar' come from? The phrase 'blue
collar' was coined in the 1920s to refer to American workers who perform
manual labor jobs. These jobs are very messy, so the workers would wear dark
clothing in order to minimize the appearance of stains. Many also wore uniforms
or shirts that were usually blue, hence the term 'blue collar.' Blue-collar workers
include janitors, construction workers, millwrights, and production laborers.
Most blue-collar workers are paid a low hourly wage, though the pay varies
greatly depending upon the specific occupation and the worker's level of skill. In
contrast, white-collar workers generally have higher paying jobs that do not
involve manual labor. White-collar workers tend to work in an office setting;
therefore, they are able to wear 'white collars' without fear of getting them dirty.
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White-collar workers include accountants, business managers, lawyers, and

doctors.
Legal Classification
Blue-collar crime is not a formal legal classification of crime. It's an informal

term that is used to describe certain types of crimes. Blue-collar crimes are those
that are most commonly committed by people who are from a lower social class,
such as blue-collar workers. Blue-collar workers may not have access to the
same resources as white-collar workers, so they tend to commit crimes that are
immediate and personal in nature, such as robbery, rather than crimes that
involve elaborate planning.
This is not to say that white-collar workers don't commit blue-collar crimes.
Rather, it's just that the people that commit the majority of these crimes are from
a lower social class.
Examples of blue-collar crimes include:
 Armed robbery
 Murder and other violent crimes
 Sexual assault
 Burglary and theft
 Breaking and entering
 Drug abuse
Causes of White-Collar Crime:
The general perception is that the white-collar crimes are committed because of
greed or economic instability. But these crimes are also committed because of
situational pressure or the inherent characteristic of getting more than others.
However, there are various reasons for white collar crimes.
 Not really a crime: Some offenders convince themselves that the actions
performed by them are not crimes as the acts involved does not resemble
street crimes.
 Not realizable: Some people justify themselves in committing crimes as
they feel that the government regulations do not understand the practical
problems of competing in the free enterprise system.
 Lack of awareness: One of the main reasons of white-collar crime is the
lack of awareness of people. The nature of the crime is different from the
traditional crimes and people rarely understand it though they are the
worst victims of crime.
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 Greed: Greed is another motivation of the commission of crime. Some

people think that others are also violating the laws and so it is not bad if
they will do the same.
 Necessity: Necessity is another factor of committing crimes. People
commit white collar crimes in order to satisfy their ego or support their
family.
Elements of white collar crimes:
The main elements of white collar crimes are:
 It involves violation of legal codes.

 It takes place directly or indirectly in connection with a legitimate
occupation.
 It aims as gaining money.
 The crime is not against a specific individual or a firm but is against
society at large. There istherefore, no specific victim who would
complain.
 Earlier on a “person of high status” committing this crime was
considered (white collar)criminal but now a „person of any class
violating law (different from one who commits an immoral or unethical
act) in the course of occupational activity‟ is described as anoccupational
offender.
 The person involved in white collar crimes which involves high stakes
but carries the mostnegligible danger of detection and identification.
Further, it is most negligible crime againstwhich the victims are least
likely to fight.
 The offender does not regard himself as a criminal but considers himself
a law breaker whoseact has no victim.
 The persons involved in illegal occupational activities adopt a policy of
fixing cases. It is notonly the law enforcement officers are fixed up but
the services of politicians, bureaucrats andinfluential People are also
used for „protection‟.
 The effect of this crime is much more serious for society than an ordinary
crime.
Cases
State of Gujrat V/s Mohanlal JitamaljiPorwal&Anr. -Supreme Court has

differentiated betweenthe general crimes and white-collar crimes. Justice
Thakkar had stated that murder can becommitted in the heat of moment but these
economic offences are committed with a coolcalculation and planned strategy to
gain personal profits.
Types Of White-Collar Crimes

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TYPE OF WHITE COLLAR CRIMES
1. Bank Fraud: Bank fraud means to engage in such activities in order to defraud
to bank or
using illegal means to obtain assets held by financial institutions.
2. Blackmail: Blackmail means demand for money by threating some person to

cause physical
injury or exposing his secrets.
3. Embezzlement: When someone entrusted with money or property uses it for

his own, it is
embezzlement.
4. Bribery: Bribery means offering money, goods or any gift to someone in order
to have control
over his actions. It is a crime whether someone offers or accepts a bribe.
5. Tax fraud: Tax fraud means evading tax by providing wrong information in
tax forms or
illegally transferring property in order to avoid tax.
6. Money Laundering: It means the concealment of origin of illegally obtained

money.
7. Insider Trading: When someone uses the confidential information to trade in

shares of publicly held corporation.
Professional White-Collar Criminality:
Medical Profession: white collar crimes which are commonly committed by

persons belonging tomedical profession include issuance of false medical
certificates, helping illegal abortion, secretservice to doctors by giving experts
opinion leading to their acquittal and selling sample drug andmedicines to
patients or chemists in India.
Engineering: In the engineering profession underhand dealing with contractors

and suppliers,passing of sub-standard works and material and maintenance of
bogus records of work changedlabour are some of the common examples of
white-collar crimes.
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Legal profession: The instances of fabricating false evidence, engaging

professional witness, engaging professional witness, violating ethical standards
of legal profession and dilatory tacticsin collusion with the ministerial staff of
the courts are some of the common practices which are,
truly speaking, the white-collar crimes quite often practiced by some legal
practitioners.
Educational Institutions: White collar criminals operate with impunity are the
privately-runeducational institutions in this country. The governing bodies of
those institutions manage tosecure large sums by way of government grants of
financial aid by submitting fictitious and fakedetails about their institutions. Also
collecting substantial sums in the name of uniform, books,donation etc. apart
from the usual heavy fees they collect.
Computer related white collar crimes: The developments in information

technology andelectronic media have given rise to a new variety of computer
related white collar crimes which iscommonly called cybercrimes. The wide
spread growth of these crimes has become a matter ofglobal concern and a
challenge for the law enforcement agencies in the new millennium, becauseof
the peculiar nature of these crimes, they can be committed anonymously and far
away from thevictim, without being physically present there.
Further, cybercriminals have a major advantage, they can use computer

technology to inflictdamage without the risk of being caught the cybercrimes
over a wide range of illegal computerrelated activities which include offences
such as theft of communication services, industrialespionage, dissemination of
pornographic and sexually offensive material in cyberspace,electronic money
laundering and tax evasion, electronic vandalism, terrorism and
extortiontelemarketing frauds, illegal interception of telemarketing frauds, illegal
interception oftelecommunication etc. presently, viruses are the most common
problems which are causingserious damage to computer systems. There are now
more than 5000 different strains virusesacross the globe. There are some
common cyber offences which are directed against computersystems, networks
or data.
Implications of White-Collar Crimes:
 Financial Loss to the public

 Social Damage to morale and institutions
 Privileged class deviance
 Trade Union deviance
The changing dynamic of white-collar crime in India:

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The Santhanam committee report for thefirst time attached great importance to
the emergency of offences and mal practices known as“white collar crimes”,
which was also acknowledged by the 29th Law Commission report in 1972.
The Santhanam Committee report recognized the emergency of mass Society

with smallcontrolling elite, encouraging growth of monopolies and the deviance
from ethical behaviourwhich led to growth of white collar and economic crimes.
The report expressed its concerntowards such crimes by opinion that this crime
was more dangerous, not only because thefinancial stakes were higher but also
they caused irreparable damage to public morals. Theawareness of the common
man towards these crimes is dismal or there is a relatively
unorganizedresentment of the public towards such crimes as the violations in
such cases can be appreciatedonly by experts, secondly due to the complexity of
these crimes they cannot be easily presented asnews and probably because these
agencies of communication are owned by businessmaninvolved in the violations
of many of these laws, white collar crimes, it is stated goes undetectedbecause it
transcends. The visibility of ordinary cheating practices of small merchants. It
canhowever, be gathered from reports of investigating committees or from
conversation withintimate friends.
Another fact that merits serious attention is that white collar crimes being a
characteristic of acquisitive and affluent society, they do not exists in India on
the scale on which it exists inEngland and America, but is not totally absent. The
Indian society is by no means affluent, but itis gradually becoming acquisitive
particularly in the urban areas. Corruption of administrativeofficers,
embezzlement by top officials of MNC‟S and corporations, evasion of tax
(particularly ofincome tax) by person who fall in the higher income group,
smuggling of goods which are scarcein the our country (such as gold watches
and gold biscuites, gun, rifals, pistol etc.) and deliberatebreach of foreign
exchange regulations, may be cited as instances of white collar crimes in
ourcountry.
As the human race progress, every aspect of the society gets upgraded and
developed, even theunfathomable greed of an individual from times immorial
man also is an animal, has aspired formore power and wealth zealously though
all scrupulous and unscrupulous means. It is an era ofaffluent crimes where a
CEO sitting in his AC chambers breaches the fiduciary relationshipbetween his
company and clients by misappropriating certain information or embezzling
thepublic money. This person is vividly different from our traditional blue collar
criminal, as he isintellectual and is bestowed upon by God with all the material
comforts, despite which he daresto commit an act which can have starting
consequences which may vary from the downfall of theeconomy to the
commission of suicides by his shareholder.
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According to a new report by EY, between 2004 and 2016, the serious fraud
investigation officewas asked to probe 469 cases, of which 184 companies were
alone probed in 2015-16. The reporttitled “The changing dynamics of white
collar crimes in India shows that over the past 10 years,the central bureau of
investigation (CBI) has prepared 6,533 corruption cases, of which 517 havecome
up in the past two years.
Further, an estimated Rs.4,000/- crore of trading is carried out on the BSE using
fake or duplicatePAN Cards and online fraud is on the rise with Maharashtra
reporting 999 cases. India‟s share inblack money concealed across global tax
havens is estimated to be $181 billion and the situation isgrim.
On its part, the government has launched several initiatives to tackle fraud,
bribery, corruptionand other white collar crimes. Recent data suggest that some
forms of crime night havemoderated of late.
In 2015, India ranked 76th on Transparency International‟s Corruption

Perception Index (CPI), upfrom 85th in 2014. This improvement in ranking
mirrors the fall in corruption complaint‟s received accordingly to the report, the
number of corruption complaint received by the chief vigilancecommissioner
declined from 64,000/- in 2014 to 29,838 in 2015. But, despite this
improvement,India ranks lower on CPI.Perceptions over the extent of corruption
in India also seem to have improved in 2016, 58% ofsurvey respondents felt that
bribery and corruption are ongoing challenges in India-down from70 in 2012.
The global average for 2016 is 39%.
Laws relating to White Collar Crimes
The government of India has introduced various regulatory legislations, the

breach of which will amount to white-collar criminality. Some of these
legislations are Essential Commodities Act 1955, the Industrial (Development
and Regulation) Act, 1951., The Import and Exports (Control) Act, 1947, the
Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956, Prevention of
Money Laundering Act, 2002.
The Indian Penal Code contains provisions to check crimes such as Bank Fraud,
Insurance fraud, credit card fraud etc. In case of money laundering several steps
have been taken by the government of India to tackle this problem. The Reserve
Bank of India has issued directions to be strictly followed by the banks under
KYC (Know Your Customer) guidelines. The banks and financial institutions
are required to maintain the records of transactions for a period of ten years.
In order to tackle with computer-related crimes, Information Technology Act,

2000 has been enacted to provide legal recognition to the authentication of
information exchanged in respect of commercial transactions.
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Section 43 and 44 of Information Technology Act prescribes the penalty for the
following offences:
 Unauthorised copying of an extract from any data.

 Unauthorised access and downloading files.
 Introduction of viruses or malicious programmes.
 Damage to computer system or computer network.
 Denial of access to an authorised person to a computer system.
Providing assistance to any person to facilitate unauthorised access to a

computer.
Though the focus of Information Technology Act is not on cybercrime as such,

this Act has certain provisions that deal with white collar crimes. Chapter XI
deals with the offence of cybercrime and chapter IX deals with penalties and
adjudication of crime. Apart from this, many issues are unresolved due to lack of
focus. Some of them are:
 Inapplicability
 Qualification for appointment as adjudicating officer not prescribed
 Definition of hacking
 No steps to curb internet piracy
 Lack of international cooperation
 Power of police to enter and search limited to public places
 Absence of guidelines for investigation of cyber crime.
Thegovernment of India has introduced various regulatory legislation, the breach

of which willamount to white collar criminality. Some of these legislations are
Essential Commodities Act 1955,the Industrial (development and regulation)
Act, 1951.
 Central Excise and Salt Act, 1944
 Companies Act, 1956.
 Drugs and Customs Act, 1940
 Emblems and Names (Prevention of improper use) Act, 1950
 Essential Commodities Act, 1955
 Foreign Corrupt practice Act, Foreign exchange regulation, forward contracts

(regulation act,
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1952)
 Immoral Traffic (prevention) Act, 1956
 Income Tax Act 1961
 Narcotic Drugs & Psychotropic Substance Act, 1985
 Prevention of Corruption Act, 1988
 Prevention of Food Adulteration Act, 1954
 The Anti-corruption Laws (Amendment) Act, 1961
 The Anti-corruption Laws (Amendment) Act, 1967
 The Central Vigilance Commission Act, 2003
 The Custom Act, 1962
 The Import and Exports Control Act 1947
 The Foreign Exchange Management Act, 1991
 Companies Act, 1956
 Prevention of Money Laundering Act, 2002
There are some measures to deal with white-collar crimes. Some of them are,
creating public awareness of crimes through media or press and other audio-
visual aids and legal literacy programmes. Special tribunals should be
constituted with power to sentence the offenders for at least 5 years and
conviction should result in heavy fines rather than arrest and detention of
criminals. Unless the people will strongly detest such crimes, it is not possible to
control this growing menace.
It is clear that due to advancement of science and technology newer form of

criminality known as white-collar crime has arisen. The term “white-collar
crime” has not been defined in the code. But the dimensions of white-collar
crime are so wide that after analysing the provisions of Indian Penal Code 1860,
we may conclude that certain offence under Indian Penal Code is closely linked
with white collar crimes such as bribery, corruption and adulteration of food,
forgery etc. The provisions of Indian Penal Code dealing with white-collar
crimes should be amended to enhance punishment particularly fine in tune with
changed socio-economic conditions. The special Acts dealing with white collar
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crimes and the provisions of Indian Penal Code should be harmoniously

interpreted to control the problem of white-collar crimes.
Case law:
 MurlidharMeghrajLoya and another vs State of Maharasthra

 State of Haranya Vs Yad Ram
 Som Prakash Vs State of Delhi
 State of U.P Vs G.K. Gosh
Crime and Women:
Dowry Prohibition Act:
Dowry Prohibition Act, Indian law, enacted on July 1, 1961, intended to prevent
the giving or receiving of a dowry. Under the Dowry Prohibition Act, dowry
includes property, goods, or money given by either party to the marriage, by the
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parents of either party, or by anyone else in connection with the marriage. The
Dowry Prohibition Act applies to persons of all religions in India.
The original text of the Dowry Prohibition Act was widely judged to be
ineffective in curbing the practice of dowry. Moreover, specific forms of
violence against women continued to be linked to a failure to meet dowry
demands. As a result, the legislation underwent subsequent amendment. In 1984,
for example, it was changed to specify that presents given to a bride or a groom
at the time of a wedding are allowed. The law required, however, that a list be
maintained describing each gift, its value, the identity of the person giving it,
and the person’s relation to either party to the marriage. The act and relevant
sections of the Indian Penal Code were further amended to protect female
victims of dowry-related violence. Another layer of legal protection was
provided in 2005 under the Protection of Women from Domestic Violence Act.
Definition of ‘dowry’. -
In this Act, “dowry” means any property or valuable security given or agreed to
be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, , to
either party to the marriage or to any other person, at or before or any
time after the marriagein connection with the marriage of the said parties,
but does not include dower or mahr in the case of persons to whom the
Muslim Personal Law (Shariat) applies.
(c) The word ‘dowry’ should be any property or valuable given or agreed to
be given in connection with the marriage. The customary payments in
connection with birth of child or other ceremonies are not involved within
ambit of dowry; Satbir Singh v. State of Punjab, AIR 2001 SC 2828.
(d) “Dowry” in the sense of the expression contemplated by Dowry
Prohibition Act is a demand for property of valuable security having an
inextricable nexus with the marriage, i.e., it is a consideration from the
side of the bride’s parents or relatives to the groom or his parents and/or
guardian for the agreement to wed the bride-to-be. But where the demand
for property or valuable security has no connection with the consideration
for the marriage, it will not amount to a demand for dowry; Arjun
DhondibaKamble v. State of Maharashtra, 1995 AIHC 273.
(e) Any property given by parents of the bride need not be in consideration of
the marriage, it can even be in connection with the marriage and would
constitute dowry; Rajeev v. Ram Kishan Jaiswal, 1994 Cri LJ NOC
255.
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(f) The definition of dowry is wide enough to include all sorts of properties,
valuable securities, etc., given or agreed to be given directly or indirectly;
VemuriVenkateswara Rao v. State of Andhra Pradesh, 1992 Cri LJ
563 AP HC.
(g) There had been no agreement between either parties to give any property
or valuable security to the other party at or before or after the marriage.
The demand of T.V., refrigerator, gas connection, cash of Rs. 50,000 and
15 tolas of gold are not demand of dowry but demand of valuable security
in view of section 2; Shankar Prasad Shaw v. State, I (1992) DMC 30
Cal.
(h) While dowry signifies presents given in connection with marriage to the
bridal couple as well as others, Stridhan is confined to property given to
or meant for the bride; Hakam Singh v. State of Punjab, (1990) 1 DMC
343.
(i) Dowry, means, any property given or agreed to be given by the parents of
a party to the marriage at the time of the marriage or before marriage or at
any time after the marriage in connection with the marriage. So, where the
husband had demanded a sum of Rs. 50,000 some days after the marriage
from his father-in-law and on not being given became angry, tortured the
wife and threatened to go for another marriage, it was held that the
amount was being demanded in connection with the marriage and it was a
demand for dowry though it was demanded after the marriage; Y.K.
Bansal v. Anju, All LJ 914.
(j) The furnishing of a list of ornaments and other household articles such as
refrigerator, furniture, electrical appliances, etc., at the time of the
settlement of the marriage amounts to demand of dowry within the
meaning of section 2 of the Dowry Prohibition Act, 1961; Madhu Sudan
Malhotra v. K.C. Bhandari, 1988 BLJR 360 (SC).
(k) A sum of money paid by a Mohemmadan in connection with his
daughter’s marriage to prospective bridegroom for the purchase of a piece
of land in the joint name of his daughter and would-be son-in-law is not
‘dowry’ within the meaning of the Act; Kunju Moideen v. Syed
Mohamed, AIR 1986 Ker 48.
(l) Where the demand was made after the marriage for the purchase of a car,
it was held that it did not fall within the definition; Nirdosh Kumar v.
Padma Rani, 1984 (2) Rec Cr R 239.
(m)Where the demand was made at the time when marriage ceremony was in
progress and was repeated after the marriage, it was held that it fell within
the definition of dowry; L.V. Jadhav v. Shankar Rao, (1983) 2 Crimes
470.
(n) Definition of ’dowry’ is not restricted to agreement or demand for
payment of dowry before and at the marriage but also includes demands
made subsequent to marriage; State of Andhra Pradesh v. Raj Gopal
Asawa, AIR 2004 SCW 1566.
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(o) Demand of dowry in respect of invalid marriage would not be legally

recognisable; Reena Aggarwal v. Anupam, AIR 2004 SC 1418.
Penalty for giving or taking dowry.- (Section 3)
Sec 3(1) - If any person, after the commencement of this Act, gives or takes or
abets the giving or taking of dowry, he shall be punishable with imprisonment
for a term which shall not be less than 3 five years, and with fine which shall not
be less than fifteen thousand rupees or the amount of the value of such dowry,
whichever is more
Provided that the Court may, for a adequate and special reasons to be recorded in
the judgment, impose a sentence of imprisonment of a term of less than 4 five
years.
(2) Nothing is sub section (1) shall apply to, or in relation to, –
(a) Presents which are given at the time of a marriage to the bride (without any
demand having been made in that behalf).
(b) Presents which are given at the time of a marriage to the bridegroom
(without any demand having been made in that behalf).
Provided that such presents are entered in a list maintained in accordance with
the rules made under this Act.
Provided further that where such presents are made by or on behalf of the bride
or any person related to the bride, such presents are of a customary nature and
the value thereof is not excessive having regard to the financial status of the
person by whom, or on whose behalf, such presents are given .
(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution
and therefore this section is not ultra vires of the said articles; Indrawati v.
Union of India, I (1991) DMC 117 (All).
(ii) The offence is founded in the relationship of the property demanded as

abettor with the nature of demand. It should not bear a mere connection with
marriage; Madan Lal v. Amar Nath, (1984) 2 Rec Cr. 581.
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(iii) Abetment is a preparatory act and connotes active complicity on the part of
the abettor at a point of time prior to the actual commission of the offence;
Muthummalv.Maruthal, 1981 Cr. LJ 833 (Mad).
Penalty for demanding dowry.-(Section 4)
Penalty for demanding dowry.- If any person demands, directly or indirectly,

from the parents or other relatives or guardian of a bride or bridegroom, as the
case may be, any dowry, he shall be punishable with imprisonment for a term
which shall not be less than six months, but which may extend to two years and
with fine which may extend to ten thousand rupees.
Provided that the Court may, for a adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than six
months.
(i) The mere demand of dowry before marriage is an offence; Pandurang

ShivramKawathkar v. State of Maharashtra, 2001 Cr LJ 2792 (SC).
(ii) The offence of demanding dowry stood committed even before the marriage
was performed and also when the demand was repeated again and again after the
performance of marriage in respect of the same items of dowry; Harbans Singh
v. Smt. Gurcharan Kaur alias Sharan Kaur, 1993 Rec Cr R 404 (Del).
(iii) The deceased had before being set on fire by her in-laws written a letter to
her father that she was being ill-treated, harassed and threatened of dire
consequences for non-satisfaction of demand of dowry. Thereby proving that an
offence of demanding dowry under section 4 had been committed; Bhoora
Singh v. State of Uttar Pradesh, 1993 Cri LJ 2636 All.
(iv) There had been no agreement between either parties to the marriage nor
their relations to give any property or valuable security to the other party at or
before or after the marriage. Held that the demand of TV, refrigerator, gas
connection, cash of Rs. 50,000 and 15 tolas of gold will not amount to demand
of dowry but demand of valuable security and the said offence does not attract
section 4 of the Dowry Prohibition Act; Shankar Prasad Shaw v. State, I
(1992) DMC 30 Cal.
(v) Furnishing of a list of ornaments and other household articles at the time of
settlement of marriage amounts to demand of dowry and accused are liable to be
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convicted under section 4; Raksha Devi v. Aruna Devi, I (1991) DMC 46

(P&H).
(vi) Section 4 of Dowry Prohibition Act is not ultra vires nor does it contravene
articles 14, 19, 21, 22 of the Constitution; Indrawati v. Union of India, 1
(1991) DMC 117 All.
Section 4A. Ban on advertisement .-
If any person –
(a) Offers through any advertisement in any newspaper, periodical, journal or

through any other media, any share in his property or of any money or both as a
share in any business or other interest as consideration fore the marriage of his
son or daughter or any other relatives.
(b) Prints or published or circulates any advertisement referred to in clause (a),he

shall be punishable with imprisonment for a term which shall not be less than six
months, but which may extend to five years, or with fine which may extend to
fifteen thousand rupees.
Provided that the Court may, for adequate and special reasons to be recorded in
the judgment, impose a sentence of imprisonment for a term of less than six
months.
Section 5 Agreement for giving or taking dowry to be void –
Any agreement for the giving or taking of dowry shall be void.
Section 6: Dowry to be for the benefit of the wife or heirs.
(1) Where any dowry is received by any person other than the woman in
connection with whose marriage it is given, that person shall transfer it to the
woman –
if the dowry was received before marriage, within three months after the date of
marriage; or
if the dowry was received at the time of or after the marriage within three
months after the date of its receipt; or
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if the dowry was received when the woman was a minor, within three months
after she has attained the age of eighteen years, and pending such transfer, shall
hold it in trust for the benefit of the woman.
(2) If any person fails to transfer any property as required by sub-section (1)
within the time limit specified therefor or as required by sub-section(3), he shall
be punishable with imprisonment for a term which shall not be less than six
months, but which may extend two years or with fine which shall not be less
than five thousand rupees, but which may extend to ten thousand rupees or with
both.
(3)Where the woman entitled to any property under sub-section (1) dies before
receiving it, the heirs of the woman shall be entitled to claim it from the person
holding it for the time being:
if she has no children, be transferred to her parents, or
if she has children, be transferred to such children and pending such transfer, be
held in trust for such children.
(3-A) Where a person convicted under sub-section (2) for failure to transfer any
property as required by sub-section (1)or sub-section (3) has not, before his
conviction under that sub-section, transferred such property to the women
entitled thereto or, as the case may be, her heirs, parents or children, the Court
shall, in addition to awarding punishment under that sub-section, direct, by order
in writing, that such person shall transfer the property to such woman, or as the
case may be, her heirs, parents or children within such period as may be
specified in the order, and if such person fails to comply with the direction
within the period so specified, an amount equal to the value of the property may
be recovered from him as if it were a fine imposed by such Court and paid to
such woman, as the case may be, her heirs, parents or children.
(4)Nothing contained in this section shall affect provisions of Sec. 3 or Sec. 4.
Section 7 :Cognisance of offences.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure,

1973 (2of 1974),- no Court inferior to that of a Metropolitan magistrate or a
Judicial Magistrate of the first class shall try any offence under this Act; no
Court shall take cognizance of an offence under this Act except upon –
its own knowledge or a police report of the facts which constitute such offence,
or
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a complaint by the person aggrieved by offence or a parent or other relative of

such person, or by any recognized welfare institution or organization:
Explanation.- For the purposes of this sub-section, "recognised welfare

institution or organization" means a social welfare institution or organization
recognized in this behalf by the Central or State Government.
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2of
1974), shall apply to any offence punishable under this Act.)
Notwithstanding anything contained in any law for the time being in force, a
statement made by the person aggrieved by the offence shall not subject such
person to a prosecution under this Act.
The point of time at which the legality of cognizance is to be judged is the time
when cognizance is actually taken; M.L. Sethi v. R.P. Kapur, AIR 1967 SC
528.
The expression ‘to take cognizance’ has not been defined in this Act nor in the
Criminal Procedure Code The word ‘Cognizance’ is however, used in the Code
to indicate the point when the Magistrate takes judicial notice of an offence. It is
a word of indefinite import and is perhaps not always used in exactly the same
sense; Darshan Singh v. State of Maharashtra, AIR 1971 SC 2372.
Taking cognizance is a judicial action taken with a view eventually to

prosecution and preliminary to the commencement of the inquiry or trail; Food
Inspector v. Laxmi Narayan, 1969 Cut LT 863.
If a Magistrate has no jurisdiction to try an offence, he is not barred from taking

cognizance of the offence; Jaddu v. State, AIR 1952 All 873.
Section 8- Offences to be congnizable for certain purposes and to be

bailable and non-compoundable.
(1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences
under this Act as of they were cognizable offences-
for the purpose of investigation of such offences; andfor the purpose of matters
other than-matters referred to in Sec. 42 of that Code, andthe arrest of person
without a warrant or without an order of a Magistrate.
(2) Every offence under this Act shall be non-bailable and non-compoundable.
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Section 8-A. Burden of proof in certain cases: Where any person is prosecuted
for taking or abetting the taking of any dowry under Sec. 3, or the demanding of
dowry under Sec.4, the burden of proving that he had not committed an offence
under those sections shall be on him.
(i) Where no specific suggestions given to any of the prosecutions witnesses

regarding plea of alibi, the plea is not maintainable; Pandurang
ShivramKawathkar v. State of Maharashtra, 2001 Cr LJ 2792.
(ii) If death of wife is within 4 years of marriage in abnormal circumstances and

demand of dowry and cruelty is established, the onus to rebut the presumption of
dowry death shifts to defence vide Cr. Appeal No. 431 of 1997, decided on 4-2-
2004.
Section 8-B. Dowry Prohibition Officers:
(1) The State Government may appoint as many Dowry Prohibition Officers as it
thinks fit and specify the areas in respect of which they shall exercise their
jurisdiction and powers under this Act.
(2) Every Dowry Prohibition Officer shall exercise and perform the following
powers and functions, namely, -
to see that the provisions of this Act are complied with;
to prevent, as far as possible, the taking or abetting the taking of, of the
demanding of, dowry;
to collect such evidence as may be necessary for the prosecution of persons

committing offences under the Act; and
to perform such additional functions as may be assigned to him by the State

Government, or as may be specified in the rules made under this Act.
(3) The State Government may, by notification in the official Gazette, confer
such powers of a police officer as may be specified in the notification, the
Dowry Prohibition Officer who shall exercise such powers subject to such
limitations and conditions as may be specified by rules made under this Act.
(4) The State Government may, for the purpose of advising and assisting the
Dowry Prohibition Officers in the efficient performance of their functions under
this Act, appoint an advisory board consisting of not more than five social
welfare workers (out of whom at least two shall be women) from the area in
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respect of which such Dowry Prohibition Officer exercises jurisdiction under

sub-section (1).
Section 9 :Power to make rules:
(1) The Central Government may, by notification in the official Gazettee, make
rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for-
the form and manner in which, and the persons by whom, any list of presents
referred to in sub-section (2) of Sec. 3 shall be maintained and all other matters
connected therewith; and
the better co-ordination of policy and action with respect to the administration of
this Act.
(3)Every rules made under this section shall be laid as soon as may be after it is
made before each House of Parliament while it is in session for a total period of
thirty days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form or be; of no
effect, as the case may be, so, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously done under that
rule.
The Supreme Court directed to States and Union Territories for awareness
regarding provision of the Act and Rules in the public; In Re: E & I of Dowry
Prohibition Act, 1961 v. Union of India, AIR 1999 SC 1538.
Section 10:Power of the State Government to make rules.-
The State Government may, by notification in the official Gazette, make rules
for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:
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the additional functions to be performed by the Dowry Prohibition Officers

under sub-section(2) of Sec. 8-B;
limitations and conditions subject to which a Dowry Prohibition Officer may

exercise his functions under sub-section (3) of Sec. 8-B.
(3) Every rule made by the State Government under this section shall be laid as
soon as may be after it is made before the State Legislature.
Female Criminality in India
Criminality of women has for quite some time been dismissed in light of
customary conviction that women are honest and are less crime inclined. The
women in Indian culture are approached with deference and poise. They are
thought to be the preservers of social standards, conventions, traditions, ethical
quality, and cohesiveness in the family. Usually faith in the Indian culture that
the role women are confined to home, she commits her life in serving all
individuals from the family. Her happiness lies in the prosperity of different
individuals from the family; her prosperity lies in the accomplishment of
individuals from family. Women have the less opportunity to blend with other
individuals other than individuals from the family. The family framework in
India is man centric in nature. Oldest male part heads the family. Family is
distinguished by the family name or for the sake of leader of the family. Women
have a subordinate and supporting position to men in the family. As a young
lady she is secured by father, as a spouse by the husband and as an old individual
by the child. A lady in the family is secured by the male individuals. Their
involvement in criminal exercises is at a minimal level comparing men. Male
criminality is generally examined and has dependably created interest in
Criminology and parcel of research work is done on this territory (Simon, 2005).
The point of women crime has started to attract much consideration because of
reestablished interest in women and monetary improvement. The role of women
in Indian culture has under gone significant change since two decades leading to
a more prominent investment in criminal exercises by them.
Like women criminality women prisonization and privileges of the women

detainees has likewise been disregarded by the thinkers and furthermore by the
specialists. The custodial equity for the women specifically has turned out to be
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vital in view of the changing financial and social scenario improved women's
involvement in crimes and increased quickly. The custodial offenses against
women detainees have additionally increased making it important to embrace a
basic investigation of the existing lawful arrangements, their orderly
infringement and the ways and imply, legitimately and essentially, to connect the
escape clauses to the treatment of women detainees at different phases of
allegation conviction and confinement.As women's role in the general public
change and women are more presented to different open doors related with male
role, the level of increase in female criminal conduct will be keeping pace with
male criminality. Women's investment in crimes will increase as their work
openings extend according to their interest, want and definition of self-move
from conventional to a more liberal one. We find that the quantities of
aggressive behavior at home are increasing which is observed to be mainly
because of the settlement framework; by this the disobedience state of mind is
created that has constrained women to carry out crime. Crime is an ever-current
condition, for example, infection, sickness and demise. It is an enduring as
spring and as repetitive as winter. Criminal isn't conceived; however is a result
of social elements. The main sources of crime might be extensively isolated in
five main classes viz; Social, Economic, Physical, Geographical and Political.
Among the social causes i.e. Family, blemished education, Cinema, Newspaper,
Absence of social control, utilization of liquor, forbiddance of dowager
remarriage, imperfections of marriage and settlement framework and so on, and
the Economic causes i.e. destitution, joblessness, Industrialization, Urbanization,
and so on are observed to contribute a noteworthy part in the commission of the
criminal demonstration (Pattanaik& Mishra, 2011).
Keeping in see the examination considers relating to female criminality and

female prisonisation by different thinkers at the national and international level
the essentialness and pertinence of the present work on women detainees of
Karnataka is specified as under and it is likewise explained how the
investigation is significant in the advanced circumstances.
Causes of Female Criminality in India
Causes based on biological viewpoint postulated by early criminologists were

baselessand does not apply to women in India. The early researchers attributed
female criminalityto biological or sociological antecedents. Crime, as a
behavioural or social problem, iscomplicated and not easily understood. Women
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are considered as turning crime as aperversion of feminine role whether their

causes are biological, psychological, social or environmental.
Biological Viewpoint:
Under the Biological Viewpoint, Caesar Lombroso's contribution is considered

as thefoundation of scientific study on female crime. He viewed, "female
deviance as rooted inthe biological make up or as inherent feature of the female
species". He stated that femalecriminals are more terrible than the male
criminals because cruelty by a female was muchmore ‘refined' and diabolic than
men. Lombroso thought women shared many qualitieswith children and they
were morally deficient and their lack of intelligence was the reasonof their
relatively small participation in crime. Lombroso and Ferrero (1895) postulated
atheory that was based on a belief that all individuals displaying anti-social
behavior werebiological throwbacks. The born female criminal was considered
to have the criminalqualities of men and the worst qualities of women. However,
we feel that, Indian womenare inclined to crime more because of social or
economic deprivation than beingbiological throwbacks.
Psychological Viewpoint
Women who are not passive and content with their traditional roles as mothers
andwives are maladjusted. Maladjusted women refuse or fail to internalize the
valuesassociated with the role in the society. Women convict(s) display
emotional instability,insecurity, rejection or frustration. They would have
encountered harsh living conditions,disappointments in love and a large number
of unfortunate experiences which generallymade it difficult for them to face
realities of life. Stress is higher for women on averagethan for men, primarily
due to blocked opportunities, and the conflicting message ofmotherhood versus
work. Women with lower social status experience higher stress, onaverage, than
women with higher social status. Women are afraid to express anger becauseit
could alienate those around them. So they suppress anger and most women cope
bychanging anger to guilt, failure, and sadness. Women “bottle up "their feelings
until itfinally explodes in lethal violence. Women experiencing peaks of stress
are more likelythan men to explode with episodes of extreme uncontrolled
violence. Situations that causecontinuous stress and isolation combine with poor
coping skills and the over-controlledpersonality to result in violence.
Psychological viewpoint is applicable to Indian scenario asthere are several
crimes committed because of depression and frustration.
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Sociological Viewpoint
A plethora of writings on sociological viewpoint emerged during the last few

decades.This viewpoint stress upon how social factors lead to a woman turning a
criminal. Womenin India, in spite of so much development and awareness face
inequality in every phase oflife. Equality for women is not practiced as it is
stated in Constitution of India. Due toinequality, women miss most of the
opportunities in life which in turn affect her financialindependence and thus her
economic status is lowered. Women in Indian society arealways expected to
understand and adjust according to the world around her. This unequalposition
of women in society due to social oppression and economic dependency on
menand the state needs to be addressed. In most ways, crimes women commit
are consideredto be final outward manifestations of an inner medical imbalance
or social instability.
The Immoral Traffic (Prevention) Act, 1986:
The Immoral Traffic (Prevention) Act, 1986, originally theSuppression of

Immoral Traffic in Women and Girls (SITA),1956, is the Central legislation
dealing with trafficking inIndia. However, even though the name refers to
immoraltrafficking of persons, the ITPA’s scope is limited to commercialsexual
exploitation or prostitution and penalizes those whofacilitate and abet
commercial sexual exploitation, includingclients and those who live off the
earnings of prostitutes. Italso provides for welfare measures towards
rehabilitationof victims in the form of protective homes to be set up andmanaged
by state governments. Unfortunately, even as a lawdealing with sexual
exploitation it leaves a lot to be desired.
ITPA does not proscribe sex work per se but deal with severely specific
activities related to commercial sex. It also provides for liberation &
rehabilitation of persons in sex work. The Act is applied through Police & the
Magistracy. Acts is carrying a punishment under ITPA include:
§ Brothel keeping (Section 3)
§ Living on earnings of sex work (Section 4)

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§ Procuring, inducing or detaining for prostitution (Section 5 & Section 6)

Penalties are of more degree where offences involve children (under age of 18
years)
§ Prostitution in areas notified by Police & near public places (Section 7)
§ Soliciting (Section 8) all offences are cognizable i.e. police do not require a
warrant to arrest or search. (Section 14) Police personnel entrusted with the
application of the Act locally (Special Police Officers) as well as at the national
level (Trafficking Police Officers) are conferred special powers (Section 13) to
raid, rescue & search properties suspected of serving as brothels (Section 15).
Magistrates are authorized to order arrests & removal, direct custody of rescued
persons, close down brothels & remove sex workers (Sections 16, 17, 18 &
Section 20).The Act provides institutional rehabilitation for „rescued‟ sex
workers. (Sections 19, 21, 23 & ITPA State Rules)
Consequences:
§ Sex work per se is not illegal under the Act, but, its de facto criminalization
through prohibition of soliciting, brothel & street work, has effectively
weakened sex workers‟ ability to claim protection of law.
§ Absence of safeguards has intensified violence & exploitation by brokers,

agents & the mafia.
§ Punitive provisions are unreceptive to public health interventions to reduce

HIV.
§ Terror of arrest, infringement by Police makes negotiation of safer sex

difficult.
§ Peer educators carrying condoms are detained for “promoting sex work”.
§ Efforts to promote condom use in brothels have been aborted.
§ Disempowerment of sex workers increase harms of HIV & Trafficking

Specific Problems.
Prohibition of Brothels: Section 2(a) defines „brothel‟ as “„any house, room,

conveyance or place or any portion of any house, room, conveyance or place
which is used for purposes of sexual exploitation or abuse for the gain of another
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person or for the mutual gain of two or more prostitutes‟.” Section 3 provides
punishment for keeping, running & managing a brothel. The term “mutual gain
of two or more sex workers”, eases premises shared by sex workers illegal,
including their residence. There have been several occasions where sex workers
have lost their homes & earnings under the pretext of “closing down brothels”.
As long as brothels remain illegal, widespread condom use cannot be achieved.
Criminalization of Earnings of Sex Work: Section 4 punishes adult persons
being economically supported by sex workers including those living with sex
workers. Therefore, aged parents, siblings, partner(s), and offspring over 18
years, who are reliant on on sex workers are treated as criminals. In reality, a
significant majority of persons, particularly women, turn to sex work to upkeep
their families including children & parents. Ironically, these very persons are
punishable by law.
Penalties for Soliciting: Section 8 punishes a sex worker drawing attention of
potential customers from a visible, noticeable site, whether in a street or private
dwelling. The criminalization of soliciting is one of the most apparent legal
problems for sex workers, who are faced with arrests, court hearings &
convictions on a repetitive basis. Sex workers are arrested even when they are
not soliciting. Number of them pleads guilty finding themselves in a vicious
cycle of criminalization. Though this provision does nothing to prevent or halt
trafficking, it is “most-used”, with maximum arrests & convictions being
reported under Section 8, Immoral Traffic Prevention Act.
Statutory Powers & Procedures: Immoral Traffic Prevention Act confers
wide-ranging powers on Police to conduct & Magistrates to order:
Raid Police can enter and search any properties on suspicion. Raids are often
carried out in breach of legal procedure for public witness, female Police etc.
Violence, abuse & humiliation of sex workers are day to day phenomena. Raids
impair sex workers‟ ability & result in greater than before harm. Medical
examination Section 15 (5A) mandates medical examination of persons removed
from brothels for, inter alia detection of sexually transmitted diseases. Sex
workers are reportedly against their will are tested for HIV & their results are
revealed in open Court. This is opposing to national policy, which requires
consent, secrecy & counseling for HIV Testing. Rescue & Rehabilitation Police
can remove any person found in premises where sex work is carried out
irrespective of age & consent. Rehabilitation is synonymous with detention in
State run homes for unspecified periods. Viable economic substitutes are either
non-existent or inaccessible to sex workers on account of stigma.
Expulsion of sex workers: Section 18 & Section 20 authorizes Magistrates to
close down brothels & oust persons from premises where sex work is being
carried out, including their residence. Vulnerable with eviction, sex workers are
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forced to relocate with no access to health & HIV services. Over the last 50
years, Immoral Traffic Prevention Act has failed to prevent & stop trafficking.
On the contrary, it has become a source of cruelty on sex workers, who face
routine harassment & repeated arrests.
If a person if found with a child it is presumed that he has imprisoned that child
there for the purpose of sexual intercourse and hence shall be punishable to
seven year in prison up to life imprisonment, or a term which may extend to ten
year and also a maximum fine of one lakh rupees. If a child is found in a brothel
and after medical examination has been found to have been sexually abused, it is
presumed that the child has been detained for the purpose of prostitution.
Any person committing prostitution in public with a child shall be punishable to
seven year in prison up to life imprisonment, or a term which may extend to ten
year and also a maximum fine of one lakh rupees. If prostitution of a child is
being committed with knowledge of an establishment owner such as a hotel the
license of the hotel license is likely to be cancelled along with the given prison
sentence and or fines.
Any child found in a brothel or being abused for the purpose of prostitution can
be placed in an institution for their safety by a magistrate. Landlords, leasers,
owner, agent of the owner who unknowingly previously rented their property to
a person found guilty of prostituting a child, must get approval from a magistrate
before re-leasing their property for three years after the order is passed.
The Medical Termination of Pregnancy Act, 1971:
During the last thirty years many countries have liberalized their abortion laws.
The worldwide process of liberalization continued after 1980. Today only 8% of
the world's population lives in countries where the law prevents abortion.
Although the majority of countries have very restricted abortion laws, 41% of
women live in countries where abortion is available on request of women. In
India, Shantilal Shah Committee (1964) recommended liberalization of abortion
law in 1966 to reduce maternal morbidity and mortality associated with illegal
abortion. On these bases, in 1969 Medical termination of pregnancy bill was
introduced in Rajya Sabha and Lok Sabha and passed by Indian Parliament in
Aug. 1971. Medical Termination Of Pregnancy Act, 1971 (MTP Act) was
implemented from Apr.1972. Implemented rules and regulations were again
revised in 1975 to eliminate time consuming procedures for the approval of the
place and to make services more readily available. The MTP Act, 1971 preamble
states" an Act to provide for the termination of certain pregnancies by registered
medical practitioners and for matters connected therewith or incidental thereto".
The preamble is very clear in stating that termination of pregnancy would be

permitted in certain cases. The cases in which the termination is permitted are
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elaborated in the Act itself. Moreover, only a registered medical practitioner who
is defined in Sec.2(d) of the Act as "a medical practitioner who possess any
recognize medical qualification as defined in Cl.(h) of sec.2 of the Indian
Medical Register and who has such experience or training in gynecology and
Obstetrics as may be prescribed by rules made under this Act" is permitted to
conduct the termination of pregnancy. Also other matters connected there with
the incidental thereto are incorporated, for example, the question of consent of
termination of pregnancy, the place where the pregnancy could be terminated,
the power to make rules and regulations in this behalf.
Grounds for termination of pregnancy:
Sec.3: When pregnancies may be terminated by registered medical

practitioner.
(i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a
registered medical practitioner shall not be guilty of any offence under that Code
or under any other law for the time being in force, if any pregnancy is terminated
by him in accordance with the provisions of this Act".
This makes it clear that the provisions of the MTP Act, so far as abortion is
concerned suppresses the provisions of the Indian Penal Code. Sub-sec. (2) of
Sec.3: "Subject to the provisions of sub-sec (4), a pregnancy, may be terminated
by a registered medical practitioner.
(a) Where the length of the pregnancy does not exceed 12 weeks if such medical
practitioner is, or
(b) Where the length of the pregnancy exceeds 12 weeks but does not exceed 20
weeks, if not less than 2 registered medical practitioners are of opinion, formed
in good faith that:
1: The continuance of the pregnancy would involve a risk to the life of the
pregnant women ;or
2: A risk of grave injury to the her physical or mental health ;or
3: If the pregnancy is caused by rape; or
4: There exist a substantial risk that, if the child were born it would suffer from
some physical or mental abnormalities so as to be seriously handicapped; or
5: Failure of any device or method used by the married couple for the purpose of
limiting the number of children; or
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6; Risk to the health of the pregnant woman by the reason of her actual or
reasonably foreseeable environment.
The Act does not permit termination of pregnancy after 20 weeks. The medical
opinion must of course be given in "good faith". The term good faith has not
been defined in the Act but sec. 52 if the IPC defines good faith to mean as act
done with 'due care and caution'. It is important to note that certain loopholes
exist in the provisions. Firstly, nowhere has the Act defined what would involve
a risk or a grave injury to her mental health. The term grave injury or substantial
risk remains undefined. The gravity of the injury or the extent of the risk being
left to the interpretation of the clause by the medical practitioner. However the
MTP Act provides some guidance for the doctors in the form of two
explanations.
Sec 3(2) Explanation 1: where any pregnancy is alleged by the pregnant woman
to have been caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the pregnant
woman.
Therefore, rape per se is not an indication. It is the mental anguish following

pregnancy due to rape, which is the main indication. In other words, mental
anguish is to be taken into consideration; proving rape and affecting her
character is not necessary. Her allegation that she has been raped is sufficient.
Further proof of rape like medical examination, trial, judgment is not necessary.
Explanation 2: where any pregnancy occurs as a result of failure of any device or

method used by any married woman or her husband for purpose of limiting the
number of children they anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the pregnant
woman.
The Act says that mental anguish due to pregnancy due to contraceptive failure
in a married woman is an indication. Can an unmarried woman avail of this
clause? She cannot use this, but she can get abortion under the general clause of
mental indication.
Sub Section (3) clarifies that:
Sub-Sec.3 (3) In determining that whether the continuance of a pregnancy would

involve such risk of injury to the health as is mentioned in sub-sec (2), account
may be taken of the pregnant woman's actual or reasonable foreseeable
environment. Therefore in determining whether the continuation of pregnancy
would constitute a risk to the physical or mental health of the pregnant woman
the Indian Law permits the consideration of the woman actual or reasonably
foreseeable environment. The terms reasonably or foreseeable being left to the
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interpretation of the medical practitioner. Environmental clauses could include,

by interpretation, drunkard husband, low-income group, large family etc. By and
large, these explanations provide for two instances where continued pregnancy is
assumed to constitute a grave injury to the mental health of the pregnant woman,
namely where the pregnancy is alleged by a woman to have being caused by
rape and second where the pregnancy occurs as a result of failure f any device by
a married woman or her husband for purpose of limiting the number of children.
The provision provides the doctors with a yardstick for a broad interpretation of
the basic concept of the potential injury to the mental health of the pregnant
woman.
The rest of the matters come in the case of mental indication where abortion is
allowed and continuation of pregnancy would involve grave injury to her mental
health. This is a subjective indication and commonly restored one.
In one of the case, where a girl detained in a Women's Welfare institution

applied to the High Court during the pendency of her writ petition that the Court
be pleased to order termination of her pregnancy and the Court found that the
Pregnancy was against her will and that unless it was terminated the girl would
suffer traumatic and psychological shock, the High Court directed termination in
a govt. Maternity hospital if the doctors there on examination found that the
termination would not affect her life and safety.
Qualification of Doctors:
According to the Act, 'a medical practitioner who possess any recognized
medical qualification as defined in cl. (h) of Sec.2 of the Indian Medical Council
Act, 1956 whose name has been entered in a state medical register and who has
such experience or training in gynecology or obstetrics as may be prescribed by
rules made under this Act is permitted to conduct the termination of pregnancy'.
Allopathic doctors who are duly registered with the State Medical Council are
authorized to do abortion. Other like homeopathic, ayurvedic, unani doctors and
unqualified doctors like RMP, Quacks, et al are not entitled to perform abortion.
Even among allopathic doctors, only those who satisfy one or the other of the
following qualifications are eligible to do MTP. Once a doctor satisfies the
require qualifications, he automatically becomes eligible to do abortions. He
need not apply for eligibility to any authority. A doctor cannot refuse to do
abortions on religious grounds. If he does so, his name is liable to be erased from
the Medical Council. If he is a Govt. doctor, he is liable for departmental action.
Consent for Abortion:
Section 3(4) of MTPA clarifies as to whose consent would be necessary for

termination of pregnancy.
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(a) No pregnancy of a woman, who has not attained the age of 18 years, or who
having attained the age of 18 years, is a lunatic, shall be terminated except with
the consent in writing of her guardian.
(b) Save as otherwise provided in cl (a), no pregnancy shall be terminated except

with the consent of the pregnant woman.
It is important to note, in this section, that the consent of the woman is the
essential factor for termination of her pregnancy. The husband's consent is
irrelevant. Therefore, if the woman wants an abortion but her husband's objects
to it, the abortion can still be done. However, if the woman does not wants an
abortion but her husband wants, it cannot be done. However, the consent of the
guardians is needed in the case of minors or lunatics.
Where the pregnancy can be terminated:
Section 4 specifies the place where, under MTP, a pregnancy can be terminated.
It stipulates that an operation must take place in either "a hospital established or
maintained by the government" or in "a place which has been approved for the
purpose of this Act by the government." However exceptions are made for
emergencies. Under section 5(1), a doctor may terminate a pregnancy if it is
"immediately necessary to save the life of the pregnant woman". In such
situations, the requisites relating to the length of pregnancy, the need for two
medical opinions and the venue for operation do not apply. However, it needs to
be pointed out that one aspect of this emergency clause tends to restricts rather
than liberalize the old law. Section 312 of the IPC permitted abortions by anyone
with the object of saving the life of the mother, but under MTPA only a doctor
can terminate the pregnancy.
Approval of a Place:
No place shall be approved under Cl (b) of sec.4
(1) Unless the Government is satisfied that termination of pregnancy may be

done therein under safe and hygienic conditions.
(2) Unless the following facilities are provided therein namely:
i. An operation table and instruments for performing abdominal gynecological

surgery
ii. Anesthetic equipment, resuscitation equipment and sterilization equipment

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iii. Drugs and parental fluids for emergency use.
Thus, the oft-argued following justifications in favour of the permissive

abortions are found in the Indian law.
(1) Therapeutics: The old restrictive Indian abortion law has permitted abortion
to save the life of the mother. In addition, the reformed law, as seen above
allows abortions when the mother's life is not threatened, but when continued
pregnancy will cause damage to her mental and physical health.
(2) Eugenics: the basic of eugenic abortion is that there is a justification for
abortion when it is known before birth that the child will be born mentally or
physically deformed. The unborn child should be relieved of a life of misery.
(3) Pregnancy caused by rape: the problem of a pregnancy caused by rape may
effect the mental health of the mother. It is assumed that the victim mother does
not want the child and does not want to bear the continuing result of a crime for
which she was not culpable.
(4) Social and economic considerations: A popular argument in favour of

abortion is based on the absolute right of the woman to control the use of her
body. She has a right to an abortion on demand to terminate any pregnancy,
which she decides she does not want. Admittedly, the right to control the use of
one's body is founded on ideas of liberty, and restrictions thereon may amount to
an invasion of privacy.
In countries where abortion is legal, death rates are usually below 1 per 100,000
procedures. Abortion is a very safe operation if the operation is performed by
skilled medical practitioners, having proper facilities and equipments. In
developing countries like India with scarce medical resources treatment of
complications of abortion often posses a heavy burden on the health care system.
According to recent estimates made by the World Health Organization, about
one-quarter to one-third of maternal deaths are due to complications of
(illegally) induced abortion. This can be prevented through offering easily
accessible safe abortion services and through family planning services and
education. Reliable statistics show that in many countries where abortion is
legally available, the abortion rate is much lower than in countries where it is
completely illegal.
The key features of the Medical Termination of Pregnancy Act, 1971 were as
follows:
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# It indicated when pregnancy could be terminated i.e. upto twenty weeks of

pregnancy.
# It specified the indications when termination of pregnancy could be done.
# It indicated that only a qualified registered medical practitioner as defined

under the Act could conduct termination of pregnancy and relied upon the Indian
Penal Code for punishment if conducted by any other.
# It also indicated that termination of pregnancy could be done only in a place

established, maintained or approved by the Government.
Thus it did help to legalize and regulate the termination of pregnancy and really
did much for upliftment of women. Gradually, with an increasing number of
centers and with new problems cropping up, the Act was amended and passed on
December 18, 2002.Essential features of the amendment are as follows: -
# In the amended Act, the word "mentally ill person" covers a wider variety of
mental diseases and disorders than the word
# lunatic" of the Principal Act.
# In the amended Act, recognition of a place for the purpose of carrying out
MTP is now at district level rather than the state capital and hence procedural
delays should be less.
# In the Principal Act, there was dependence on IPC to enforce discipline. In the
amended Act, the punishment is incorporated in the Act itself.
Protection of Women from Domestic Violence, Act 2005
Introduction:
The origin of the Act lies in Article 15 (2) of the Constitution of India, which
clearly says that “State can make special provisions for women and children”
towards realizing the right to equality. This indicates the use of affirmative
action to remedy a wrong. It is often said that India has several laws but they are
not implemented. The problem, however, is not the lack of implementation, but
the lack of a mechanism by which it can be implemented. Women have
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insufficient understanding of the law and lack of access to the courts. Hence it is
necessary not only to enact a law but to provide the necessary infrastructural
tools with which to access the law. The way of doing this is to put a mechanism
in place in the law itself. In the Act, this has been done by creating the office of
the Protection Officer and recognizing the role of the Service Providers.
Affirmative duties have been imposed on the government to provide legal aid,
medical facilities and shelter homes in the hope that women in distress be given
all these facilities. The Act is a statement of commitment by the State that
domestic violence will not be tolerated.
Background:
Domestic Violence remains one of the most prevalent yet largely invisible forms
of violence. Contrary to the general belief, Domestic Violence is not restricted to
certain social sections. Domestic Violence occurs in many forms- physical,
emotional, sexual, economic, verbal, etc. Woman faces Domestic Violence as a
daughter, sister, wife, mother, or a partner in her lifetime. As per the NCRB
Report 2003, 36.1% of the total reported crimes against women relate to
domestic violence. As per NFHS (2) 1998-99, 1 in 5 married women in India
experience domestic violence from the age of 15.
Prior to Protection of Women from Domestic Violence Act (PWDV) Act 2005,
under the civil law, for acts of domestic violence a married woman can initiate
proceeding for divorce/ judicial separation. However, this fails to provide any
kind of immediate relief and protection to the woman. She remains at the mercy
of her parents/ relatives. Also it leads to problems of costs and delays in
litigation. Most commonly used provision of criminal law in dealing with cases
of Domestic Violence is Section 498A of the Indian Penal Code. It makes
cruelty to a wife by her husband or relatives an offence and attracts a maximum
punishment of three years on conviction. Limitation of this provision is that it is
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not aimed at providing reliefs, namely maintenance, shelter, etc. It is confined to

the prosecution and possible conviction of the offender.
Protection of Women from Domestic Violence Act (PWDV) Act 2005

recognizes the right of a woman to live in violence free home.
What Is “Domestic Violence:
A “Physical abuse”- any act that causes bodily injury or hurt. E.g. beating,
kicking, punching, etc.
B “Sexual abuse”- any humiliating or degrading sexual act. E.g. forced sexual
intercourse etc.
C. “Verbal and emotional abuse”- insults, threat causing harm or injury.
D. “Economic abuse”- deprivation of the basic necessities of life.
Who can claim Relief:
• Any woman facing violence in domestic relationship [S. 2(a)].
• Domestic relationships are relationships between a woman and a man living in

a shared household.
Domestic relationship:
Marriage -such as wives, daughter-in-laws, sister-in-laws, widows etc. with

other members of the family.
Blood relationships-such as mothers-sons, sisters brothers, daughters-

Fathers ,etc.
Other relations -through adoption, relationships in the nature of marriage

(including victims of legally invalid marriages).
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How can a woman get relief from the court:
• Woman or any person on her behalf can give information of domestic violence
to the PO, Police or the Magistrate (S. 4).
• Duty to inform of her right to make an application under DV Act, availability

of services of POs (S. 5).
• Complaint to be registered by PO in Domestic Incident Report (DIR) format.
• DIR is a record of the fact that an incident of violence has been reported
(similar to NCR).
• Copy of DIR to be forwarded by PO to the Magistrate and the police officer in

charge of the police station in the jurisdiction.
• DIR be kept in record for future reference.
• An application for reliefs (S.12) under DV Act to Magistrate can be made by:
a. the woman herself, directly to the court,
b. through Protection Officer,
c. if there is a pending case between a woman and her husband and she can ask
for Orders under DV Act in that proceeding itself (S.26).
Major reliefs are available under Act:
1. Protection Order (Section 18)
2. Residence Order(Section 19)

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3. Monetary Relief(Section 20)
4. Custody Order(Section 21)
5. Compensation Order(Section 22)
6. Interim / Ex parteorder(Section 23)
7. Breach of Protection Order (Section31) Violation of the Protection Order

cognizable and non-bailable offence (Section 31-32).
Role of Protection Officer:
Protection Officer as a facilitator helps woman:
• In registering complaints in DIR (Form I)
• Filing applications before the Magistrate for orders (Form II)
• Helping her in getting support like medical aid, shelter, legal aid, counseling
etc.,
• Conducting field inquiries on court orders.
• Making sure that the orders passed by the court are enforced.
Shelter and medical assistance to the aggrieved person:
■ The shelter homes and the medical facility are under a legal obligation to
provide shelter or medical facility to the aggrieved person.
■ Copy of medical examination report is to be provided free of cost to the

aggrieved person.
Form and manner of making complaint—

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(Domestic Incident Report) and applications for relief under the PWDV Act
■ Complaints and applications under the Act can be made by filling in the
prescribed forms.
■ The forms can be availed of from any source including Service Providers,
Protection Officers or Police Stations.
■ The aggrieved person has a right to seek assistance for filling in the forms or
filing the applications before the Court.
■ The aggrieved person can also file the complaint or applications directly
before the Court.
■ In case the aggrieved person files the complaint or applications through the
Protection Officer or a Service Provider, she has a right to receive a copy of the
complaint or the applications free of cost.
■ The service of the notice or summons shall be by handing over the same to the
respondent or any male member of his family.
■ The summons / notice can be delivered by registered post.
■ Court can direct service in accordance with the Code of Criminal Procedure or
the Civil Procedure Code or employ any other effective way of service in view
of the facts and circumstances of the case.
■ Appointment of counselors and counseling
■ The Court can direct counseling for an amicable of the matter by the parties.
■ Counseling can be directed on admission of alleged misconduct and

undertaking not to repeat the same by the respondent.
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■ Enforcement of orders passed under the Act and consequences of breach of

protection order.
■ The breach of orders of the court under the Act shall amount to cognizable,
non-bailable offence warranting immediate arrest and summary trial.
Terrorism:
What is terrorism?
Terrorism is the most heniousactivites in the world.. The term "Terrorism"

comes from the French word Terrorisme, which is based on the Latin verb
“terrere” (to cause to tremble). The Jacobins cited this precedent when imposing
a Reign of Terror during the French Revolution. After the Jacobins lost power,
the word "terrorist" became a term of abuse.In modern times "Terrorism" usually
refers to the killing of innocent people by a private group in such a way as to
create a media spectacle. In November 2004, a United Nations Security Council
report described terrorism as any act "Intended to cause death or serious bodily
harm to civilians or non-combatants with the purpose of intimidating a
population or compelling a government or an international organization to do or
abstain from doing any act". In many countries, acts of terrorism are legally
distinguished from criminal acts done for other purposes, and "terrorism" is
defined by statute.
History of terrorism in India:
Terrorism in India is started before india got independence on 1947 but that
times terrorist activites aim create a fear among the British Ruler and not killed
the general People. So we not called these freedom fighters as a terrorist but
after 1947 the terrorism actitivites to kill the innocent people. In early times the
Kashmir, Punjab and North East Frontier part was affected of terrorism. But in
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current cinario the terrorism scope has been increase. The regions with long term
terrorist activities today are Jammu and Kashmir, Mumbai, Central India
(Naxalism) and Seven Sister States (independence and autonomy movements).
In the past, the Punjab insurgency led to militant activities in the Indian state of
Punjab as well as the national capital Delhi.
In Indian concern for the terrorism, it is the main attribute of the terrorist
activities in form of religious terrorism. Religious terrorism is terrorism
performed by groups or individuals, the motivation of which is typically rooted
in the based tenets. Terrorist acts throughout the centuries have been performed
on religious grounds with the hope to either spread or enforce a system of belief,
viewpoint or opinion. The terrorist activities in India primarily attributable to
Islamic, Hindu, Sikh, Christian and Naxalite radical movements. In current
scenario the domestic and external terrorist activities is increasing in India.
Laws related to terrorism in India:
Terrorism has immensely affected India. The reasons for terrorism in India may
vary vastly from religious cause and other things like poverty, unemployment
and not developed etc.
The Indian Supreme Court took a note of it in Kartar Singh v. State of Punjab
[1994] 3 SCC 569, where it observed that the country has been in the firm grip
of spiralling terrorist violence and is caught between deadly pangs of disruptive
activities..
Anti-terrorism laws in India have always been a subject of much controversy.

One of the arguments is that these laws stand in the way of fundamental rights of
citizens guaranteed by Part III of the Constitution. The anti-terrorist laws have
been enacted before by the legislature and upheld by the judiciary though not
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without reluctance. The intention was to enact these statutes and bring them in
force till the situation improves. The intention was not to make these drastic
measures a permanent feature of law of the land. But because of continuing
terrorist activities, the statutes have been reintroduced with requisite
modifications.
Indian anti-terror law has evolved from the Unlawful Activities (Prevention)
Act, 1967 (UAPA) through the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) to the Prevention of Terrorism Act, 2002
(POTA).
Section 15 of the UAPA defines a ‘terrorist act’ as “whoever does any act with
intent to threaten or likely to threaten the unity, integrity, security [economic
security] or sovereignty of India or with intent to strike terror or likely to strike
terror in the people or any section of the people in India or in any foreign
country”. Courts read these specific laws with various sections of the Indian
Penal Code, 1860.
In PUCL versus Union of India, the Supreme Court upheld the constitutional
validity of POTA as not “offending Article 19(1)(a) and 19(1)(c) of the
Constitution of India”.
In Kasab versus State of Maharashtra, the Supreme Court approved the death
sentence of the terrorist given “the death penalty remains on the statute book as
punishment for certain offences, including waging war and murder.”
A Constitution bench in Kartar Singh versus State of Punjab, however,
reaffirmed that “no civilised democratic country has accepted confession made
by an accused before a police officer as voluntary and above suspicion,
therefore, admissible in evidence.” Indeed, police atrocities and coerced
confessions violate the civil liberties of the accused. The lack of evidence haunts
investigating agencies that often use force, an unlawful means, to strengthen
their cases.
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Since 2008, the National Investigation Agency Act has made the NIA the
central counter-terrorism law enforcement agency in India. Section 1(2)(a) of the
NIA Act applies “to citizens of India outside India”. While terror financing
keeps the NIA busy, currently it is investigating about 63 cases involving jihad
and ISIS in various states.
Meanwhile, the UAPA, with amendments in 2013, replaced TADA and POTA.
Sections 20 and 38 of the UAPA define punishment for “any person who is a
member of a terrorist gang or a terrorist organisation” with imprisonment for 10
years. The schedule of the UAPA lists banned organizations. Besides, the UAPA
gives an additional 90 days to file charge sheets. By 2018, the NIA has
investigated roughly 185 cases; 37 cases have been finally or partially decided in
trial with convictions in 35 cases.
However, in September 2018, in Watali versus NIA, the Delhi High Court
found “no reasonable grounds to form an opinion” that “the accusations against
the appellant under the UAPA are prima facie true.” A day later, the Gujarat
High Court, in Shaikh versus State of Gujarat, after “minutely and objectively”
reading “the evidence” found nothing to believe that a “secret witness” to
terrorist activity “committed any offence which renders him liable to be tried
along with other accused”. In November 2018, the Central Bureau of
Investigation expanded the ambit of terrorist activities by invoking the UAPA
against persons accused of killing Narendra Dabholkar.
Terrorism is often read with “secessionist activities” in Kashmir. For example, in

Farooq Ahmad Bhat versus State of Jammu & Kashmir, the high court noted
the accused “to have indulged in various terrorist and secessionist activities,
aimed at seceding the State of Jammu and Kashmir from the union of India.”
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Significantly, Indian laws await prosecution of Indians for committing terrorism

anywhere in the world.
Marginal and Victimless Crimes:
A victimless crime is an act that is illegal but has no direct victim. Typically, the
parties involved are voluntarily acting. Also, the parties may be consenting
adults. Therefore, there is no harm directly and specifically imposed upon
another person and as a result, there is no victim.
A characteristic feature of such laws is that since no third party is harmed, there
is no one who has an immediate interest in complaining to the police and
presenting evidence against the culprits.
Victimless crime is mainly related to awareness and unawareness of victim for

crime. When victim aware about crime and he or she knows he or she is a
harmed and in this case he or she is a victim of crime but when the victim is
unaware of crime and harm caused to him it is a case of victimless crime.
Consent leads awareness and if the subject of the crime is not harmed unless he
becomes aware of the crime, then such crime is victimless, i.e. the victim doesn’t
know about crime until he becomes aware of the crime. For e.g. a person
trespassing through a neighbor’s yard, without being observed or causing
damage is committing the victimless crime.
Types:
 Prostitution
 Drug use
 Trespassing
 Traffic citations
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 Gambling
 Bootlegging
 Public Drunkenness
 Gambling etc
Some activities that are considered victimless crimes in majority of jurisdictions

are drug abuse, bigamy, prostitution, ticket scalping etc. although it is debate as
to whether they are really “victimless” or not, while some are legally regarded as
victimless, such as prostitution, stand in the forefront of debate over whether
anyone harmed or not, physically, morally or otherwise.
Health protection and youth protection is in interest of the society. Deceased

people and youth involved illicit activities can be causing of the degradation of
nation thus it is responsibility of society to protect health and youth thus it made
laws in above matters.
There is a debate on whether prosecution to consensual crimes should be

maintained or should they be decriminalized. There are several arguments for
maintaining the prosecution of victimless crime, such as costs, but the main
thrust of maintaining prosecution tends to be rooted in arguing that society as a
whole is enhanced by locking up victimless criminal offenders.
The reason being:
1. By decriminalizing such activities like drug abuse, no seat belt etc. although
the cost of law enforcement would be controlled but the other costs would
become unacceptably high.
2. Decriminalizing such acts would cost the core values of the society and
overall diminish the quality of life and causing real harm to the society.
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Conclusion:
(1) Victimless crime doesn’t harm third party person thus there is problem of
complaining of it and evidence while prosecuting.
(2) When the victim is unaware of crime and harm caused to him it is a case of
victimless crime.
(3) There are kind of victimless crimes as suicide, truancy or drug use, Traffic
citations, prostitution, pornography and gambling etc.
(4) Victimless crimes normally don’t harm the individual but harms society at
large.
(5) Victimless crimes can capable of creating gang subculture because of

involvement of demand and money.
(6) In criminalizing victimless crime acts, society makes a judgment that there
can be no privacy interest in those acts.
(7) Victimless crime has importance of consent and because of it is an offence of

private nature not involving society at large like prostitution but it is against the
social norms thus though it is private and with consent society interferes with it
with instrument of law.
(8) Health protection and youth protection is in interest of the society thus legal
instruments penalize victimless crime which is against health and youth
protection.
(9) Victimless crime criminalized for the quality of life and causing no real harm
to the society.
NDPS Act:
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The Narcotic Drugs and Psychotropic Substances (NDPS) Act came into
force on November 14, 1985, and has become the statute under which all cases
relating to possession, consumption, and sale of ‘Narcotic drugs’ are prosecuted.
However, it is necessary to understand that this Act has evolved over the years,
and has been amended thrice (1988, 2001 and 2014) which has changed its
scope and direction. The Prevention of Illicit Trafficking in Narcotic Drugs and
Psychotropic Substances Act was passed in 1988 and was brought in to ensure
full implementation and enforcement of the NDPS act. This article traces the
roots of the NDPS, highlight the kinds of cases that are booked under the NDPS
and explain the various anomalies that exist in the NDPS with relation to State
legislations.
History of NDPS:
Before 1985, there was no law which criminalised the possession and use of
drugs, and so the social convention prevailed. Religious and mythological
history had references to the usage of drugs, and throughout India marijuana and
its various derivatives were sold freely, and were viewed in the same light as
alcohol, and consumed, albeit in different forms. It is believed that one of the
reasons behind the NDPS coming into force is the Single Convention on
Narcotic Drugs which was an international treaty drafted in 1961. The
Convention aimed at preventing the production and sale of specified narcotic
substances. It was far broader in its scope than previous treaties because it
covered newer drugs that did not exist when the previous treaties had been
drafted. However, the Convention is not in itself applicable to any nation, but
instead recommends nations to adopt similar measures. Such laws were amended
by the US in the form of the Controlled Substances Act and by the UK through
the Misuse of Drugs Act. India did not buckle under international pressure,
particularly from America, and kept the sale of marijuana for nearly 25 years.
However, as the War on Drugs gained momentum and India’s economic position
weakened, Rajiv Gandhi-led administration had to finally buckle under the
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pressure and the NDPS Bill was introduced on August 23, 1985, and assented by
the President on September 16, 1985.
The NDPS Act of 1985:
The NDPS Act contains 5 Chapters, with each chapter dealing with a certain
subject with respect to the statute. The first chapter serves as a Preliminary
chapter, introducing and defining the various narcotic drugs and psychotropic
substances, and finally highlighting that the Central government has the power
to omit or add other substances to the list under the NDPS Act.
The second chapter highlights the relevant Authorities and Officers that have
been created under the NDPS Act. It also sets the guidelines for the Central
government to appoint a Narcotics Commissioner, to set up a Narcotic Drugs
and Psychotropic Substances Consultative Committee and to fund a National
Fund for Control of Drug Abuse.
The third chapter lays out the Prohibition, Control and Regulation of the
previously mentioned substances. It prevents the cultivation or production of the
coca plant, opium poppy or any cannabis plant by anybody, while reserving
these rights with both the Central and State governments if they wish to do so,
by creating rules later. Furthermore, all Inter-State and International smuggling
of such substances have been prohibited. Finally, this chapter looks at the
regulation on other controlled substance that can be used to create narcotic drugs
and also has clauses which illustrate cases under which opium poppy, coca plant,
and cannabis plant can be legally cultivated.
Chapter four deals with the Offences and Penalties under the NDPS Act. It
describes with punishment duration the various possible crimes that can be tried
under this Act, such as possession of such substances, for commercial or
recreational use, cultivation or preparation of such substances and smuggling of
such substances.
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The fifth chapter looks at the Procedure of how the cases are to be dealt with,
and also set the guidelines for the officers empowered under this Act.
Establishment of specialized courts:
When the NDPS Act was in its infancy, cases pertaining to the offences
delineated in the Act were dealt with by conventional Sessions Courts. However,
this further exacerbated the problem of judicial overburden which has plagued
Indian courts for decades. In order to remedy this problem, the Government of
India vide an amendment to the NDPS Act in 1989 paved the way for the
establishment of specialized courts to deal with offences set out in the Act. Sec.
36 of the Act empowers the government to set up as many Special Courts as it
deems fit for the expeditious resolution of disputes. The Special Court consists
of a single judge who is appointed with the concurrence of the Chief Justice of
the concerned High Court and who must be a sitting Sessions Judge or
Additional Sessions Judge at the time of his appointment. A Special Court has
the same powers as the Magistrate when cases are forwarded to it. The Special
Court is empowered to take cognizance of any offence under the Act on the
basis of a report submitted to it by the relevant police authority or any complaint
made by officers in the central or state government who are authorized to make
such complaints. Even though Special Courts have played a pivotal role in the
effective implementation of the NDPS Act, they have not been able to develop
efficacious strategies for grappling with the systemic challenges that are faced
by courts across the country. For example, even though Mumbai has 8 Special
Courts, most cases come up for trial only after 2-3 years.
An overview of key offences and punishments:

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The quantum of punishment under the NDPS Act is based on the quantity of
drugs found which may be classified into 3 categories: small, less than
commercial and commercial. As a result, the punishment may be as low as
rigorous imprisonment for one year if the drugs found are in small quantity and
as high as 20 years imprisonment for a large quantity of drugs. The amount of
small and commercial quantity is specified by the Central Government. The
quantity for some common drugs is as follows:
A. Amphetamine: small quantity – 2 grams, commercial quantity – 50 grams.
B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.
C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.
D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.
E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.
F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.
G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg.
Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or
cannabis plants as well as the production, manufacture, distribution including
warehousing, transport, purchasing and selling of prohibited drugs and
psychotropic substances. It also prohibits their financing as well as consumption
and harboring offenders guilty under the Act. As per Sec. 19, any farmer who
cultivates opium in accordance with a license but embezzles it shall be punished
with rigorous imprisonment for a term ranging between 10 and 20 years and
shall also be liable to pay a fine ranging between Rs. 1 and 2 lakh rupees. The
production, manufacture, possession, sale, purchase, transport, import and export
among states or use of narcotic drugs and psychotropic substances such as poppy
straw, prepared opium, opium poppy, cannabis, etc shall result in:
 In case of small quantity, rigorous imprisonment up to one year with/

without fine up to Rs. 10,000;
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 In case the quantity is between small and commercial, rigorous

imprisonment up to 10 years and fine up to Rs. 1 lakh; and
 In cases involving commercial quantity, rigorous imprisonment between
10-20 years and fine ranging between Rs. 1 and 2 lakh rupees.
However, if the contravention pertains to ganja, the punishment would be

significantly less i.e. rigorous imprisonment for a term which may extend up to 5
years and fine up to Rs. 50,000. In all the aforementioned cases, the court can
increase the fine by recording the reasons for the same in the judgment.
As per Sec. 23, any person who engages in illegal import/ export/
transshipmentof narcotic drugs/psychotropic substances shall have to face
punishment ranging between rigorous imprisonment for 1 to 20 years and fine
ranging between Rs. 10,000 and Rs. 2 lakh based on the quantity of the
prohibited substance. Sec. 24 clearly states that any person who engages in
external dealings in contravention of the Act shall be punished with rigorous
imprisonment ranging between 10-20 years and fine ranging between 1-2 lakh
rupees. Any person who knowingly allows his premises to be used for the
commission of any offence under the Act shall be punished with rigorous
imprisonment ranging between 10-20 years and fine ranging between 1 and 2
lakh rupees. Any person financing illicit traffic or harboring an offender shall
also face the same punishment. In case a person consumes a narcotic drug or
psychotropic substance; the punishment would vary depending on the substance
consumed. If the substance consumed is cocaine, morphine or diacetyl-
morphine, then the punishment would be rigorous imprisonment up to 1 year
with or without fine up to Rs. 20,000. If the accused consumes any other
substance, he would have to face rigorous imprisonment up to six months with
or without fine up to Rs. 10,000. The court is empowered to send any person
who is imprisoned for consumption of drugs to an appropriate medical centre for
seeking necessary treatment. Agencies seizing the drugs are required to destroy
them suitably in the prescribed manner. In addition, if the accused is found to
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have any illegal property, it shall be forfeited to the central government. The
proceeds from the sale of such illegally acquired properties shall be pooled into
the National Fund for Control of Drug Abuse in order to facilitate the treatment
of drug addicts and to promote initiatives for drug control.
Punishment for repeat offences:
As drug abuse is often a habitual problem for those who engage in it, the Act
imposes a far stricter punishment on repeat offenders. Broadly speaking, the
punishment for repeat offences can be up to one and half times the quantum of
punishment for the first offence. As a result, the punishment would vary from
1.5 years of rigorous imprisonment to 30 years of rigorous imprisonment
depending on the gravity of the offence. Similarly, the quantum of fine for a
subsequent conviction would also be up to one and half times the fine for the
first offence. One provision pertaining to punishments for second convictions
which has been hotly debated pertained to the death penalty embodied in Sec.
31A of the Act. Before the 2014 amendment, the Act provided for a mandatory
death sentence if the quantity of drugs involved in an offence committed after
the first conviction exceeded a certain threshold. For example, the threshold is
10 kg in case of Opium and 1 kg in case of Morphine and Heroin. However, in a
move that was widely hailed by the human rights community, the 2014
amendment made it abundantly clear that the death penalty can be imposed as a
substitute for the other punishments that have been set out in the Act for a repeat
offender; its application isn’t mandatory. Many experts have repeatedly argued
for the complete removal of the death penalty from the NDPS Act. The penalty
seeks to take life, the argument goes, for an offence that doesn’t result in the
taking of life. Presently, reports indicate that drug control laws in 32 countries
provide for the death penalty in rare cases. However, a closer inspection of drug
markets in these countries shows that the death penalty has not acted as a
sufficient deterrent for preventing the surreptitious practices that these laws seek
to control.
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Procedural safeguards in the NDPS Act:
Since the NDPS Act gives extensive powers to law enforcement agencies to
clamp down on malpractices connected with drug abuse, it also seeks to put in
place adequate safeguards to prevent innocent civilians from being unnecessarily
harassed. Any person making an arrest or seizure under the Act is, therefore,
required to make an extensive report containing all relevant details which must
be sent to his immediate superior. Similarly, Sec. 100 of the CRPC states that
any police officer who wishes to search any person who is believed to be
concealing something suspicious must do so only in the presence of at least 2
respectable inhabitants of that locality known as panchas. Thereafter, a
statement containing the details of the search and seizure, with the signature of
the panchas, must be given to the accused of his perusal. Sec. 55 of the NDPS
Act imposes an obligation on the police officer seizing the prohibited substances
to keep them in safe custody. They must contain the seal of the officer seizing
them as well as the officer-in-charge of the police station. Sec. 50 of the Act
gives the accused the right to be searched in the presence of the magistrate or a
gazetted officer. This right has been upheld by the Supreme Court in the case
of State of Punjab V. Balbir Singh 1994 AIR 1872 where it was held that the
police officer must, of necessity, inform the accused about this right. Finally,
Sec. 58 imposes strict punishments on people making vexatious or frivolous
complaints.
Access to medicinal drugs:
Even though the Act carves out exceptions in all relevant places for allowing the
use of drugs for scientific or medical purposes, it is dismaying to note that the
Act has significantly undermined the ability of healthcare institutions to gain
access to essential narcotic drugs for the benefit of their patients. This problem is
primarily attributed to the fact that the Act requires these institutions to obtain
licenses from a plethora of regulatory agencies that deal with issues related to
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excise, drug control, health administration, etc. The red-tapes involved in the
grant of licenses coupled with their short tenure makes it very difficult for
medical institutions to maintain large amounts of drugs that are often the only
solution for lessening the pain of terminally ill patients. In order to circumvent
this problem, the 2014 amendment seeks to put in place a single window
clearance system in accordance with which every hospital which is in need of
these drugs would be granted the status of a Recognized Medical Institution
(RMI). It seeks to create a special category of drugs called Essential Narcotic
Drugs whose use would be largely regulated by the central government. These
provisions, it is hoped, will help in streamlining conflicting provisions that
grapple with the acquisition of licenses and will go a long way in striking the
right balance between ‘availability’ and ‘control’.
Rehabilitation of drug addicts
Another area in which the law has been heavily criticized pertains to the limited
importance that it attaches to the health of drug users who require special care
and treatment. The law only focuses on reducing the supply of drugs; the
argument goes, and not on putting in place a robust framework for reducing their
demand which would be a more sustainable solution in the long run. In order to
address this concern, the 2014 amendment seeks to strengthen existing
provisions pertaining to the establishment and working of centres for the
identification and treatment of addicts. The amendment focuses on the
management of drug dependents and paves the way for the accreditation of
treatment centres by relevant government authorities. Treatment centres need to
adopt global best practices and harm reduction techniques in order to deal with
this problem in a systematic and holistic manner.
Agencies responsible for effective administration of the law

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The Department of Social Welfare has been declared as the nodal agency that
monitors the initiatives undertaken by various organizations, public and private,
for spreading greater awareness about the deleterious effects of drug abuse. A
central agency, known as the Narcotics Control Bureau, is tasked with the
responsibility of overseeing the activities undertaken by various law
enforcement agencies and to ensure constant compliance with various
international instruments that India has signed. The Ministry of Welfare is
responsible for taking appropriate steps to prevent the occurrence of
circumstances that result in this menace. More specifically, it is responsible for
disseminating information about drug abuse, undertaking drives at the local,
state and national level to spread greater awareness and to form a broad coalition
of various stakeholders to attack the problem at its root. It is also responsible for
providing medical assistance to drug addicts and to put in place systems for
identifying drug users at an early stage in order to take corrective measures.
Finally, the Ministry of Finance looks into cases grappling with drug trafficking,
money laundering and other offences which are closely linked with drug abuse.
Case Laws:
1. Iqbal Moosa Patel Versus State of Gujarat 2011(1) RCR (Criminal)

473 (SC)- Sections 21, 29, 8(c) NDPS Act, 1985, Sections 103, 102
Indian Evidence Act, 1872-
It was held by Hon'ble apex Court that “proof beyond reasonable doubt does not
mean proof beyond a shadow of a doubt. The law would fail to protect the
community if it permitted fanciful possibilities to deflect the course of justice.”
2. Jagdish Rai Vs. State of Punjab AIR 2011 SC 1568-Sections 35,54-

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“Appellant driving motorcycle. On intercepted by the police, appellant tried to

turn away and flee. It can be presumed that appellant was conscious of the fact
that pillion rider is carrying opium.”
(3) Roop Singh Vs. State of Punjab 1996(1) R.C.R. (Cr.) 146 (P&H) (Division
Bench)-
“Giving up of independent witness by the prosecution in the present day

situation prevailing in the society is fully justified and no adverse inference can
be drawn against the prosecution.”
(4) Davinder Kumar Vs. State of Punjab 2012(2) R.C.R. (Cr.) 600 (DB)-
Sections 42,43- “when recovery of contraband is effected from the vehicle in
transit, Section 43 of the Act shall apply and not Section 42”.
(5) Dharampal Singh Vs. State of Punjab (2010) 9 SCC 608- Sections
18,35,54- Under Section 18- “Once possession is established, accused who
claims that it was not a conscious possession, has to establish that it was not,
because it is with in his special knowledge”.
(6) Akmal Ahmed Versus State of Delhi 1999 Criminal Law Journal, 2041
(SC)-“The evidence of search or seizure, made by the police, will not become
vitiated solely for the reasons that the same was not supported by an independent
witness”.
(7) State of Punjab Versus Baldev Singh 1999(6) SCC 172-“drug abuse is a
social malady. While drug addiction eats into the vitals of the society, drug
trafficking not only eats into the vitals of the economy of a country, but illicit
money generated by drug trafficking is often used for illegal activities including
encouragement of terrorism. It has acquired the dimensions of an epidemic,
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affecting the economic policies of the State, corrupts the system and is
detrimental to the future of a country”.
(8) State of Himachal Pradesh Versus Pawan Kumar 2005(2) RCR

(Criminal) 621- “those who indulge in this kind of nefarious activities should not
go Scot free on technical pleas which come handy to their advantage in a
fraction of second”.
(9) It is held in Arif Khan @ Agha Khan Vs. State of Uttarakhand 2018(2)
R.C.R. (Criminal) 931by Hon'ble apex Court that “it is mandatory on the part of
authorized officer to make suspect aware of existence of his right to be searched
before Gazetted Officer or Magistrate, if so required by him and this requires
struck compliance. Evidence adduced by prosecution neither suggested nor
proved that search and recovery made in presence of magistrate or gazetted
officer. Accused entitled for benefit of doubt.”
10. In State of Haryana Versus Jarnail Singh, 2004(2) RCR Criminal

960,Hon'ble Apex Court held that Section 50 is applicable only when personal
search of accused is made. When search is made from vehicle Section 50 has no
applicability.
Computer Crimes:
Cyber terrorists usually use the computer as a tool, target, or both for their
unlawful act either to gain information which can result in heavy loss/damage to
the owner of that intangible sensitive information. Internet is one of the means
by which the offenders can gain such price sensitive information of companies,
firms, individuals, banks, intellectual property crimes (such as stealing new
product plans, its description, market programme plans, list of customers etc.),
selling illegal articles, pornography etc. this is done through many methods such
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as phishing, spoofing, pharming, internet phising, wire transfer etc. and use it to
their own advantage without the consent of the individual.
Many banks, financial institutions, investment houses, brokering firms etc. are
being victimised and threatened by the cyber terrorists to pay extortion money to
keep their sensitive information intact to avoid huge damages. And its been
reported that many institutions in US, Britain and Europe have secretly paid
them to prevent huge meltdown or collapse of confidence among their
consumers.
Types of Cyber Crimes
When any crime is committed over the Internet it is referred to as a cyber crime.
There are many types of cyber crimes and the most common ones are explained
below:
Hacking: This is a type of crime wherein a person’s computer is broken into so

that his personal or sensitive information can be accessed. In the United States,
hacking is classified as a felony and punishable as such. This is different from
ethical hacking, which many organizations use to check their Internet security
protection. In hacking, the criminal uses a variety of software to enter a person’s
computer and the person may not be aware that his computer is being accessed
from a remote location.
Theft: This crime occurs when a person violates copyrights and downloads
music, movies, games and software. There are even peer sharing websites which
encourage software piracy and many of these websites are now being targeted by
the FBI. Today, the justice system is addressing this cyber crime and there are
laws that prevent people from illegal downloading.
Cyber Stalking: This is a kind of online harassment wherein the victim is
subjected to a barrage of online messages and emails. Typically, these stalkers
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know their victims and instead of resorting to offline stalking, they use the
Internet to stalk. However, if they notice that cyber stalking is not having the
desired effect, they begin offline stalking along with cyber stalking to make the
victims’ lives more miserable.
Identity Theft: This has become a major problem with people using the Internet
for cash transactions and banking services. In this cyber crime, a criminal
accesses data about a person’s bank account, credit cards, Social Security, debit
card and other sensitive information to siphon money or to buy things online in
the victim’s name. It can result in major financial losses for the victim and even
spoil the victim’s credit history.
Malicious Software: These are Internet-based software or programs that are
used to disrupt a network. The software is used to gain access to a system to
steal sensitive information or data or causing damage to software present in the
system.
Child soliciting and Abuse: This is also a type of cyber crime wherein
criminals solicit minors via chat rooms for the purpose of child pornography.
The FBI has been spending a lot of time monitoring chat rooms frequented by
children with the hopes of reducing and preventing child abuse and soliciting.
Causes of Cyber Crime
Wherever the rate of return on investment is high and the risk is low, you are
bound to find people willing to take advantage of the situation. This is exactly
what happens in cyber crime. Accessing sensitive information and data and
using it means a rich harvest of returns and catching such criminals is difficult.
Hence, this has led to a rise in cyber crime across the world.
The Information Technology Act, 2000:
The ITAct-2000 defines 'computer' as any electronic magnetic, optical or other

highspeed data processing device or system which performs logical, arithmetic,
and memory functions by manipulations of electronic, magnetic or optical
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impulses, and includes all input, output, processing, storage, computer software,
or communication facilities which are connected or related to the computer in a
computer system or computer network. The word 'computer' and 'computer
system' have been so widely defined and therefore, any high-end programmable
gadgets like even a washing machine or switches and routers used in a network
can all be brought under the definition. The Information Technology Act, 2000
(ITAct- 2000) was enacted by Parliament of India to protect the field of e-
commerce, e-governance, e-banking as well as to provide for penalties and
punishments in the field of cyber crimes. The above Act was further amended by
the Information Technology (Amendment) Act, 2008 (ITAAct2008). The word
'communication devices' was inserted in the definition, to include into its
coverage cell phones, personal digital assistance or such other devices used to
transmit any text, video etc. like those which were later being marketed as iPad
or other similar devices on Wi-fi and cellular models. ITAct- 2000 defined
'digital signature', but the said definition was incapable to cater to needs of the
hour and therefore, the term 'Electronic signature' was introduced and defined in
the ITAct - 2008 as a legally valid mode of executing signatures. This includes
digital signatures as one of the modes of signatures and is far broader in ambit
covering biometrics and other new forms of creating electronic signatures. The
new amendment has replaced Section 43 by Section 66. The word "hacking"
used in Section 66 of earlier Act of 2000 was removed and named as "data theft"
and consequently widened in the form of Sections 66A to 66F. The section
covers the offences such as the sending of offensive messages through
communication service, misleading the recipient of the origin of such messages,
dishonestly receiving stolen computers or other communication device, stealing
electronic signature or identity such as using another person’s password or
electronic signature, cheating by personation through computer resource or a
communication device, publiclypublishing the information about any person's
location without prior permission or consent, cyber terrorism, the acts of access
to a computer resource without authorization, such acts which can lead to any
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injury to any person or result in damage or destruction of any property, while

trying to contaminate the computer through any virus like Trojan etc. The
offences covered under Section 66 are cognizable and nonbailable. It may be
pointed here that the consequence of Section 43 of earlier Act was civil in nature
having its remedy in the form of damages and compensation only Under Section
66 of the Amendment Act, 2008 if an act is done with mens rea i.e. criminal
intention, it will attract criminal liability resulting in imprisonment or fine or
both. The law of defamation under Section 499 got extended to "Speech" and
"Documents" in electronic form with the enactment of the Information
Technology Act, 2000. Section 66A of the Information Technology Act, 2000.
Any person who sends, by means of a computer resource or a communication
device:- (i) any information that is grossly offensive or has menacing character;
or (ii) any content information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred, or ill will, persistently makes by making use of
such computer resource or a communication device, or (iii) any electronic mail
or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the
origin of such messages, shall be punishable with imprisonment for a term which
may extend to three years and with fine. Section 66A of the Information Act,
2000 does not specifically deal with the offence of cyber defamation but it
makes punishable the act of sending grossly offensive material for causing
insult, injury or criminal intimidation.
Punishment for damage to computer system and hacking: According to

Section: 43 of ‘Information Technology Act, 2000’ whoever does any act or
destroys, deletes, alters and disrupts or causes disruption of any computer with
the intention of damaging of the whole data of the computer system without the
permission of the owner of the computer, shall be liable to pay fine upto 1crore
to the person so affected by way of remedy. Section 43A which is inserted by
‘Information Technology(Amendment) Act, 2008’ provides that where a body
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corporate is maintaining and protecting the data of the persons as provided by

the Central Government, if there is any negligent act or failure in protecting the
data/ information, a body corporate shall be liable to pay compensation to the
person so affected. Section 66 deals with ‘hacking with computer system’ and
provides for imprisonment up to 3 years or with fine, which may extend up to 2
lakh rupees or with both.
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Unit 4
The Police and Criminal Justice System
Introduction:
In ancient India governance was based on Dharma and Danda. Dandaneeti i.e.,
the law of punishing the evil-doer,was an important character of statecraft. The
general control over people was exercised through the armed forces functioning
under the sovereign. During Mauryan and Gupta periods, policing was
undertaken systematically. Kautilya’s ‘Arthasastra’ describes the nature of
police organisation and their functions. Moghul period saw the growth of
Fauzdari System, where Kotwals and Thanedars were controlling law and order.
The period of British rule witnessed the emergence of a centralised police force,
which enforced a large number of penal laws and also maintained the might and
authority of government.
The present Indian Police System is based on the Police Act of 1861; under this
Act, the police was made subordinate to the executive government, and the same
position continues. In 1903 and 1907, several changes were brought about in the
structure as well as functioning of the police system. After Independence the
police force in our country was charged with the responsibility of maintaining
public order and preventing and detecting crime Under Art 246 of the
Constitution of India, police and public order are made state subjects, hence the
police in India is maintained and controlled by the states.
Organisation and Structure:

Police administration is a state responsibility. However, the union government’s
role in police administration- relates to making laws and making amendments to
basic police laws like Indian Penal Code, Management of Indian Police Service
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etc. The Central Government also assists the state governments in maintaining
law and order through its reserve units, like the Central Reserve Police Force,
Border Security Force, Railway Protection Force, Central Industrial Security
Force etc. Central Bureau of Investigation (CBI) and Central Intelligence Bureau
(CIB) also provide assistance to the state police organisations in the fields of law
and order, security and administration of justice.
Police structure in state

At the state level, police administration is more or less uniform throughout the
country. The Home Department coordinates and supervises the police
administration. The real work of police administration is undertaken by the
Director General of Police/Inspector General of Police. The police set-up in big
cities like Delhi, Kolkata, Mumbai, Chennai, Hyderabad etc. is directly under
the Commissioner of Police.
The state is divided into territorial divisions called ranges. A number of districts
constitute a range. Each district police is further subdivided into police divisions,
circles and police-stations.
Range Level:
Each range is headed by Deputy Inspector General of Police. Each Police range
comprises a few districts, which may vary from 2 to 8 depending upon the size,
population and importance of the district. A major function of the DIG is to
coordinate the activities of district police and to take measures for inter-district
cooperation. He also ensures harmonious relation between the police and
executive magistrates.
District and Sub-District level

In police administration district plays a pivotal role. All the laws and rules
passed by the police are transformed into action at this level. Superintendent of
Police (SP) is responsible for the maintenance of law and order and other law
enforcement activities of the district. Technically, SP functions under the overall
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control of the Collector, but he and his subordinate officers in practice enjoy
operational autonomy in the discharge of their functions. To provide assistance
to the police, a number of units like the home-guards, the women police, crime
branch, dog-squad etc. function at the district level.
For operational convenience the district police organisation is divided into a

number of subdivisions. Sub-divisions are further divided into police-circles.
Each circle may have 3 to 10 police stations. While the Deputy Superintended of
Police or Additional Superintendent of Police is in charge of sub-division, the
Inspector of Police is the head of the Police Circle. The police station is the
lowest tier in the police organisation. It is the basic and primary unit, responsible
for maintenance of law and order, prevention and control of crime and protection
of life and property of the community.
All senior police posts in states are taken from Indian Police Service (IPs) cadre,
to which recruitment “is made on all India basis. Recruitment and promotion of
lower posts from Police Constables upto Deputy Superintendent of police are the
responsibility of the state governments.
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At the state level, the role of the police officers even in the line hierarchy
gets transformed in staff functions, which they have to perform at three
distinct levels as follows:
(1) Staff functions in the Union government and its auxiliary agencies;
(2) Staff functions in relation to home department of the state government; and
(3) Staff-cum-line functions in relation to the line officials in the districts.
The police administration at the state level consists of two organisational

wings:
(i) The civil and
(ii) The professional.

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Custodial Death:
The concept of custodial death is not new for the Indian society. Since the
British rule, people have been dying in the police custody during investigation.
India has time and again witnessed the basic fundamental rights of the prisoners
being shattered and the use of coercion and torture to take the favourable
statement. The police administration is always criticized for custodial deaths,
torture, and the use of unlawful means during the investigations. Wikipedia
describes the term ‘custodial death’ as ‘death of a person in the custody of the
police, prison service or other authorities. It’s legal validity is till date a
controversial issue and is always debated as the popular retributive-deterrent
philosophy has validated this incarcerational barbarity. Though the authorities
are legally bound to provide adequate necessary amenities and ensure the safety
of the inmates by providing them a healthy environment which includes timely
medical assistance, but the real scenario is different from what the legal
implications suggest. It is also seen that mostly the persons belonging to poor
sections of the society or the ones that from the depressed castes face this cruelty
in prison.
Domestic and International Scenario:
The issue of premature death in prison exists not only in the domestic spaces but
is also found in the international scenario. Countries such as Bangladesh,
Algeria, Argentina, Burma are aware of the presence of this evil practice on their
territories. Even the United States of America is not untouched by the issue of
custodial violence. 38 deaths in Police custody have been reported in England
and Wales between April 2003 to March 2004, as shown by a Joint Committee
on Human Rights under the authority of House of Lords and House of Commons
in 2004.Amnesty International, in one of their articles in 2013 urged the
Malaysian authorities to take immediately steps against the rising number of
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deaths in police custody, some of which were caused by torture and others by ill-
treatment.
The situation in India is not very different from the international one. The Times
of India, in November 2013, stated that in the preceding five years, around
12000 people suffered tragic end due to torture that is done on them either in jail
or police stations.As per the official data, there were 32 deaths in police custody
or disappearance of persons from detention who were remanded to such custody
by the Court during the year 2014. Among these, the highest were reported in
Andhra Pradesh (16). These were the ones who had been sent by the Court under
the order of remand. National Crime Records Bureau reports on its official
website that there were in total 61 deaths or disappearances of persons from
police custody in 2014. These were the people who were not sent by the Court to
remand. These figures depicted a decline of 37.1% over the preceding year
(2013) when this number rose to 97.In their research study, the Police
Complaints Authority (PCA) has mentioned about extreme vulnerability of those
who die in the police custody and have found that in the period 1998-2003, there
was an over-representation of ethnic minorities in deaths in police custody.
Illegal Arrest and Detention:
The powers given to the Police administration for the purpose of dealing with
the crimes in the society are many times used by them to implicate innocent and
poor people in false and fabricated cases under local and special laws such as,
Excise Act, Arms Act, Gambling Act, Suppression of Immoral Traffic Act,
Motor Vehicle Act etc. And it is an accepted fact that such arrests mostly lead to
immense physical and mental torture on the person arrested, due to which,
he/she ultimately commits suicide in the prison or dies because of the torture.
The National Police Commission in 1981 admitted that around 60% of total
arrests made by the police are unnecessary and unjustified.
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One of the most reported cases regarding illegal detention was of the two
Adivasi boys by Kerala Police in the year 2004-05, where the Christian Cultural
Forum, Kollam, Kerala, submitted a complaint alleging that police officials of
Agali in Attappaddi in Palakkad district of Kerala arrested three ‘Adivasis,’
Manikandan, Parameswaran and Kuppama on 25.5.1997 and as per the facts,
they were kept in illegal custody for 23 days. Kuppama, one of these people was
female and was beaten black and blue by the police. Chilli powder was stuffed
into her vagina and as per the complainant, the Circle Inspector had falsely
implicated around 100 Adivasis in fabricated cases. There was a feeling of terror
in the Adivasis due to which they were forced to leave their houses.
Another incident took place in the year 1997-98 in the state of Rajasthan, where
Shri. Baba Khan of Kota had alleged in his complaint that there were illegal
detention and torture by the police and reported that he nad his two brother-in-
laws were forcibly taken away by the police authorities, detained and tortured
severely. The cognizance was taken for this complaint and the Chief Secretary
along with the Director General of Police, Rajasthan were asked to submit a
report. The report submitted by the State Police stated that the allegations were
baseless and false but disregarding this; the Commission ordered an
investigation into the matter. The investigation division established that the
accusations were prima facie true.
Other cases mentioned by the National Human Rights Commission include the
case of Shri. Raghubir Yadav of Uttar Pradesh, abduction of Rama Rao by
Andhra Police, illegal detention of Anil Kumar and D.M. Regeof
Maharashtra. Joginder Kumar vs. State of Uttar Pradesh and D.K. Basu vs.
State of West Bengal.
What Causes of Custodial Violence?
Police system is the main arm of the democracy that deals with the common man
directly. Hence, there arises an urgent need to prevent abuse of the power and
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direct it in the right direction. To achieve this, it is primarily very essential to

study the reasons behind the problem of custodial violence. Under what
circumstances, does an educated officer of law resorts to such inhuman tactics?
Work Pressure
Also, insurgent groups, which are nowadays cause chaos and massacre in many
areas, consist of well-trained criminals who are highly motivated to their cause
and do not reveal any information quickly.
In such a situation, the mental pressure becomes a reason for adopting brutality
as a means to retrieve information from criminals. Further, we have been gifted
with a concept embodied in the basic structure of our legal system which
suggests that until and unless the guilt is proved beyond reasonable doubt. There
are really few instances where this doctrine affects the law in a negative way.
Because these restrictions are there, police at times fail to derive information
from such hardened criminals and thus have no hard evidence in the court of
law. Ultimately, the real culprit walks unharmed.
To Show Results
Once a case is recorded in the Police Diary, its status has to be filed in the court.
To show better results, they sometimes resort to illegal arrests, unlawful
confinement or detention of people and prove case against them. This has a dual
effect on the legal system. First, the wrong person is detained and hence his
liberties are violated, secondly, the real statistics about crimes are prevented
from being come out, which effects the formulation of effective policies for that
area. The legal system can never achieve its basic aim of justice, if such a
situation persists for long.
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Reformation
Sometimes, the police have to resort to the tactics of violence, to prevent the
criminal from committing the crime again. They believe that showing the worse
consequences of the act will create fear in the mind of the culprit and thus
prevents the possibility of committing it again. The fear of the third-degree
methods also changes the perceptions of his subordinates of getting away easily.
In some cases, brutal tactics produce the above-desired result but in most
situations, the aim is not achieved.
Punitive Violence:
There are a few misguided, although honest, police officers who believe in not
letting the criminal go away unpunished. Such people believe that there is no
better way of ensuring this but by the use of third-degree torture methods.
Usually, an officer who is morally affected by witnessing the crime wants to
punish the culprit. Although, they do it for the betterment of the society, they
have to face accusations of illegal detention and torture and have to prove it in
their favour.
Laws for Prevention of Custodial Deaths in India:
The Indian legislature has taken some steps in the form of Acts, Bills, and
Suggestions, which aim at preventing the custodial deaths:
 The Prevention of Torture Bill, 2010 has been introduced in the

Parliament, and Rajya Sabha has recently presented a report on it.
 The National Human Rights Commission has issued guidelines to be
followed in case of custodial deaths and rape.
 NHRC has also issued guidelines for magisterial inquiry in the cases
of custodial death.
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Certainly, the present custodial laws have not been able to direct the practice of
use of third-degree methods in the right direction. The current situation in our
country is that whenever a prisoner dies in the police custody, the first blame
comes from the police authorities. Before blaming them or any other person or
body, the circumstances of which the death was caused must be ascertained. It is
not suggested that not getting required information from the criminal should be
made a ground for giving legal validity to this method. Also, it is the duty of the
prison administration to provide proper facilities of medical, infrastructure,
sanitation, food, security to the prisoners and a monitory body to only review it
but also keep an eye on the other activities inside the prison.
Criminal Justice System:
The criminal justice system is the set of agencies and processes established by
governments to control crime and impose penalties on those who violate laws.
There is no single criminal justice system in the United States but rather many
similar, individual systems. How the criminal justice system works in each area
depends on the jurisdiction that is in charge: city, county, state, federal or tribal
government or military installation. Different jurisdictions have different laws,
agencies, and ways of managing criminal justice processes.1 The main systems
are:
State: State criminal justice systems handle crimes committed within their state
boundaries.
Federal: The federal criminal justice system handles crimes committed on

federal property or in more than one state.
System Components of Criminal Justice System:

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Most criminal justice systems have five components-law enforcement,

prosecution, defense attorneys, courts, and corrections, each playing a key role
in the criminal justice process.
Law Enforcement: Law enforcement officers take reports for crimes that
happen in their areas. Officers investigate crimes and gather and protect
evidence. Law enforcement officers may arrest offenders, give testimony during
the court process, and conduct follow-up investigations if needed.
Prosecution: Prosecutors are lawyers who represent the state or federal

government (not the victim) throughout the court process-from the first
appearance of the accused in court until the accused is acquitted or sentenced.
Prosecutors review the evidence brought to them by law enforcement to decide
whether to file charges or drop the case. Prosecutors present evidence in court,
question witnesses, and decide (at any point after charges have been filed)
whether to negotiate plea bargains with defendants. They have great discretion,
or freedom, to make choices about how to prosecute the case. Victims may
contact the prosecutor's office to find out which prosecutor is in charge of their
case, to inform the prosecutor if the defense attorney has contacted the victim,
and to seek other information about the case.
Defense Attorneys: Defense attorneys defend the accused against the

government's case. They are ether hired by the defendant or (for defendants who
cannot afford an attorney) they are assigned by the court. While the prosecutor
represents the state, the defense attorney represents the defendant.
Courts: Courts are run by judges, whose role is to make sure the law is followed
and oversee what happens in court. They decide whether to release offenders
before the trial. Judges accept or reject plea agreements, oversee trials, and
sentence convicted offenders.
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Corrections: Correction officers supervise convicted offenders when they are in

jail, in prison, or in the community on probation or parole. In some communities,
corrections officers prepare pre-sentencing reports with extensive background
information about the offender to help judges decide sentences. The job of
corrections officers is to make sure the facilities that hold offenders are secure
and safe. They oversee the day-to-day custody of inmates. They also oversee the
release processes for inmates and sometimes notify victims of changes in the
offender's status.
How the Criminal Justice Process Works:
Below is a basic outline of the sequence of events in the criminal justice process,
beginning when the crime is reported or observed. The process may vary
according to the jurisdiction, the seriousness of the crime (felony or
misdemeanor), whether the accused is a juvenile or an adult, and other factors.
Not every case will include all these steps, and not all cases directly follow this
sequence. Many crimes are never prosecuted because they are not reported,
because no suspects can be identified, or because the available evidence is not
adequate for the prosecutor to build a case.
Entry into the System
Report: Law enforcement officers receive the crime report from victims,
witnesses, or other parties (or witness the crime themselves and make a report).
Investigation: Law enforcement investigates the crime. Officers try to identify a

suspect and find enough evidence to arrest the suspect they think may be
responsible.
Arrest or Citation: If they find a suspect and enough evidence, officers may
arrest the suspect or issue a citation for the suspect to appear in court at a
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specific time. This decision depends on the nature of the crime and other factors.
If officers do not find a suspect and enough evidence, the case remains open.
Prosecution and Pretrial:
Charges: The prosecutor considers the evidence assembled by the police and
decides whether to file written charges (or a complaint) or release the accused
without prosecution.
First Court Appearance: If the prosecutor decides to file formal charges, the
accused will appear in court to be informed of the charges and of his or her
rights. The judge decides whether there is enough evidence to hold the accused
or release him or her. If the defendant does not have an attorney, the court may
appoint one or begin the process of assigning a public defender to represent the
defendant.
Bail or Bond: At the first court appearance (or at any other point in the process-
depending on the jurisdiction) the judge may decide to hold the accused in jail or
release him or her on bail, bond, or on his or her"own Recognizance" (OR),"
(OR means the defendant promises to return to court for any required
proceedings and the judge does not impose bail because the defendant appears
not to be a flight risk). To be released on bail, defendants have to hand over cash
or other valuables (such as property deeds) to the court as security to guarantee
that the defendant will appear at the trial. Defendants may pay bail with cash or
bond (an amount put up by a bail bondsman who collects a non-refundable fee
from the defendant to pay the bail). The judge will also consider such factors as
drug use, residence, employment, and family ties in deciding whether to hold or
release the defendant.
Grand Jury or Preliminary Hearing: In about one-half of the states,

defendants have the right to have their cases heard by a grand jury, which means
that a jury of citizens must hear the evidence presented by the prosecutor and
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decide whether there is enough evidence to indict the accused of the crime. If the
grand jury decides there is enough evidence, the grand jury submits to the court
an indictment, or written statement of the facts of the offense charged against the
accused. In other cases, the accused may have to appear at a preliminary hearing
in court, where the judge may hear evidence and the defendant is formally
indicted or released.
Arraignment: The defendant is brought before the judge to be informed of the

charges and his or her rights. The defendant pleads guilty, not guilty, or no
contest (accepts the penalty without admitting guilt). If the defendant pleads
guilty or no contest, no trial is held, and offender is sentenced then or later. If the
defendant pleads not guilty, a date is set for the trial. If a plea agreement is
negotiated, no trial is held.
Adjudication (Trial Process):
Plea Agreements: The majority of cases are resolved by plea agreements rather
than trials. A plea agreement means that the defendant has agreed to plead guilty
to one or more of the charges in exchange for one of the following: dismissal of
one or more changes, a lesser degree of the charged offense, a recommendation
for a lenient sentence, not recommending the maximum sentence, or making no
recommendation. The law does not require prosecutors to inform victims about
plea agreements or seek their approval.
Trial: Trials are held before a judge (bench trial) or judge and jury (jury trial),
depending on the seriousness of the crime and other factors. The prosecutor and
defense attorney present evidence and question witnesses. The judge or jury
finds the defendant guilty or not guilty on the original charges or lesser charges.
Defendants found not guilty are usually released. If the verdict is guilty, the
judge will set a date for sentencing.
Post-Trial:
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Sentencing: Victims are allowed to prepare for the judge (and perhaps to read at
the sentencing hearing) a victim impact statement that explains how the crime
affected them. In deciding on a sentence, the judge has a range of choices,
depending on the crime. These choices include restitution (paying the victim for
costs related to the crime), fines (paid to the court), probation, jail or prison, or
the death penalty. In some cases, the defendant appeals the case, seeking either a
new trial or to overturn or change the sentence.
Probation or Parole: A judge may suspend a jail or prison sentence and instead
place the offender on probation, usually under supervision in the community.
Offenders who have served part of their sentences in jail or prison may-under
certain conditions-be released on parole, under the supervision of the corrections
system or the court. Offenders who violate the conditions of their probation or
parole can be sent to jail or prison.

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UNIT - 5
CORRECTIONAL INSTITUTION AND CRIME PREVENTION
PROBATION AND PAROLE
Probation is a way of sending good idea in the mind of offenders. It is probably

the first stage of the correctional scheme. The object of probation is to keep
delinquent away from evil consequences and offer him an opportunity leads
socially useful life without violating the law and as of all methods of treatment is
the ultimate rehabilitation of the offender in the community. On the other hand,
Parole has emerged as one of the most acceptable form of correctional device in
modern penology. It has been universally recognized as one of the most
appropriate methods of treatment of offenders for their reformation and
rehabilitation in the normal society after the final release. It can be said that
parole is the last stage of correctional scheme.
Meaning of probation:
The term Probation is derived from the Latin word probare, which means to test
or to prove. It is a treatment device, developed as a non-custodial alternative that
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is used by the magistracy where guilt is established but it is considered that

imposing of a prison sentence would do no good. Imprisonment decreases the
convict’s capacity to readjust to the normal society after the release and
association with professional delinquents often has undesired effects.
Law of probation in India:
Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision
to have dealt with probation. After amendment in 1974 it stands as S.360 of The
Code of Criminal Procedure, 1974. S.361 makes it mandatory for the judge to
declare the reasons for not awarding the benefit of probation.
In 1958 the Legislature enacted the Probation of Offenders Act, which lays
down for probation officers to be appointed who would be responsible to give a
pre-sentence report to the magistrate and also supervise the accused during the
period of his probation. Both the Act and S.360 of the Code exclude the
application of the Code where the Act is applied. The Code also gives way to
state legislation wherever they have been enacted.
360. Order to release on probation of good conduct or after admonition. -
(1) When any person not under twenty-one years of age is convicted of an
offence punishable with fine only or with imprisonment for a term of seven
years or less, or when any person under twenty-one years of age or any woman
is convicted of an offence not punishable with death or imprisonment for life,
and no previous conviction is proved against the offender, if it appears to the
Court before which he is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be released on probation
of good conduct, the Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon during such
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period (not exceeding three years) as the Court may direct and in the meantime
to keep the peace and be of good behavior:
Provided that where any first offender is convicted by a Magistrate of the second

class not specially empowered by the High Court, and the Magistrate is of
opinion that the powers conferred by this section should be exercised, he shall
record his opinion to that effect, and submit the proceedings to a Magistrate of
the first class, forwarding the accused to, or taking bail for his appearance
before, such Magistrate, who shall dispose of the case in the manner provided by
sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as

provided by sub-section (1), such Magistrate may thereupon pass such sentence
or make such order as he might have passed or made if the case had originally
been heard by him, and, if he thinks further inquiry or additional evidence on
any point to be necessary, he may make such inquiry or take such evidence
himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building,

dishonest misappropriation, cheating or any offence under the Indian Penal Code
punishable with not more than two years’ imprisonment or any offence
punishable with fine only and no previous conviction is proved against him, the
Court before which he is so convicted may, if it thinks fit, having regard to the
age, character, antecedents or physical or mental condition of the offender and to
the trivial nature of the offence or any extenuating circumstances under which
the offence was committed, instead of sentencing him to any punishment, release
him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the
High Court or Court of Session when exercising its powers of revision.
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(5) When an order has been made under this section in respect of any offender,
the High Court or Court of Session may, on appeal when there is a right of
appeal to such Court, or when exercising its powers of revision, set aside such
order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under the sub-section
inflict a greater punishment than might have been inflicted by the Court by
which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in
the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub-section (1),
shall be satisfied that an offender or his surety (if any) has a fixed place of abode
or regular occupation in the place for which the Court acts or in which the
offender is likely to live during the period named for the observance of the
conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt
with the offender in respect of his original offence, is satisfied that the offender
has failed to observe any of the conditions of his recognizance, it may issue a
warrant for his apprehensions.
(9) An offender, when apprehended on any such warrant, shall be brought

forthwith before the Court issuing the warrant, and such Court may either
remand him in custody until the case is heard or admit him to bail with a
sufficient surety conditioned on his appearing for sentence and such Court may,
after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of
Offenders Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any
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other law for the time being in force for the treatment, training or rehabilitation
of youthful offenders.
Object:
Section 360 is intended to be used to prevent young persons from being

committed to jail, where they may associate with hardened criminals, who may
lead them further along the path of crime, and to help even men of more mature
years who for the first time may have committed crimes through ignorance, or
inadvertence or the bad influence of others and who, but for such lapses, might
be expected to be good citizens. It is not intended that this section should be
applied to experienced men of the world who deliberately flout the law and
commit offences.
In Jugal Kishore Prasad v. State of Bihar, the Supreme Court explained the

rationale of the provision:
“The object of the provision is to prevent the conversion of youthful offenders

into obdurate criminals as a result of their association with hardened criminals of
mature age in case the youthful offenders are sentenced to undergo
imprisonment in jail.”
Release on probation of good conduct:Section 360(1)
Having regard to the age, character or antecedents of the offender, and the
circumstances in which the offence was committed, if the court convicting the
accused person considers it expedient to release the offender on probation of
good conduct (instead of sentencing him at once to any punishment), it may
direct the offender to be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during such period
(not exceeding three years) as the court may fix and in the meantime to keep the
peace and be of good behaviour. Such a release is permissible only if the
following conditions are satisfied:
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 There is no previous conviction proved against the offender.

 When the person convicted is a woman of any age, or any male person
under 21 years of age, and the offence of which he or she is convicted is
not punishable with death or imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence
of which he is convicted is punishable with fine only or imprisonment for
a term of seven years or less.
First Offenders:
The expression first offender refers to an offender who has no previous

conviction to his credit, apart from the offence in question. It is also necessary
that the offence committed by him for the first time must be one of those
mentioned in section 360, CrPC. First offenders under this section are entitled to
indulgence on the ground of their age, character or antecedents and to the
circumstances in which the offence is committed. The object of this section is to
avoid sending the first time offender to prison for an offence, which is not of a
serious character and thereby running the risk of turning him into a regular
criminal.
First offenders according to sub-section (1) fall under two classes:
 When the person convicted is a woman of any age, or any male person
under 21 years of age, and the offence of which he or she is convicted is
not punishable with death or imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence
of which he is convicted is punishable with fine only or imprisonment for
a term of seven years or less.
Offenders with any precious conviction or those found guilty of any offence
punishable with death or imprisonment for life are totally beyond the purview of
the section. From this section it is clear that it tries to reform the criminals by
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treating them leniently only in those cases where there is no serious danger or
threat to the protection of the society.
For application of this section it is necessary that the offender must not have
been convicted previously so as to bring him in the category of the first offender.
On fulfilment of the above conditions, if the court by which the offender is
convicted considers it expedient that the offender should be released on
probation of good conduct, it may, instead of sentencing him at once to any
punishment, order him to be released on bond with or without sureties. The
offender may be required to furnish a bond to appear and receive sentence
whenever called upon during such period not exceeding three years as the court
may direct. The offender shall be directed by the court to keep the peace and be
of good behaviour if he is released on probation under this section. In Md. Syad
Ali v. State of Gujarat, when the accused was a first offender and his age was
below 21 years but the court had not applied its mind to the application of
section 360, it was held that it was a fit case for granting probation.
No offender can as a matter of right, on fulfilling the conditions laid down in this
section, claim to be released on probation of good conduct. It is a discretionary
power given under this section to the court.
Release after admonition:Section 360(3)
Having regard to the age, character, antecedents or physical or mental condition

of the offender and to the trivial nature of the offence or any extenuating
circumstances under which the offence was committed, the court may, after
convicting the accused person, release him after due admonition. Such a release
is permissible only if the following conditions are satisfied:
 There is no previous conviction proved against the accused person.

 The offence of which he has been accused of is either theft, theft in a
building or dishonest misappropriation or is punishable under the IPC
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with not more than 2 years’ imprisonment or is one punishable with fine
only.
Subsection (3) is applicable only in respect of the specified offences and such
other offences under the IPC that are not punishable with more than two years’
imprisonment. Under this sub-section the court has got the discretion to release
the offender after admonition instead of sentencing him to any punishment.
Section 360(4)
An order under s. 360 directing release of the convicted offender on probation of

good conduct or release after due admonition may be made by an appellate court
or by the High Court or court of session when exercising its powers of revision.
Section 360(5)
The High Court or the Court of Session may, on appeal or when exercising its
powers of revision, set aside such order and in lieu thereof pass sentence on such
offender according to law. But the High Court shall not inflict a greater
punishment than might have been inflicted by the court by which the offender
was convicted.
Breach of recognisances:
Section 360(8) & Section 360(9)
In case the offender fails to observe the conditions of his recognizance, the court
which convicted the offender or any court which could have dealt with him in
respect of his original offence may issue a warrant for his apprehension and
when brought before it may either remand him in custody until the case is heard
or admit him to bail with a sufficient surety and after hearing the case, pass
sentence.
Section 360 And POA Exclusive Of Each Other:

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Section 360 itself makes it quite clear that it shall not affect the provisions of the
Probation of Offenders Act. According to Section 18 of POA read with section
8(1), General Clauses Act, 1897, Section 360 of the Code would cease to apply
to the States or parts thereof in which the POA is brought into force. However,
the offender can be still released after admonition or on probation of good
conduct under sections 3 and 4 POA which is wider in its scope than the
provisions of section 360. In that case also, the court will have to use discretion
on the same lines as in cases under section 360.
Chhanni v. State of Uttar Pradesh, is a case relating to applicability of section

360, Cr.P.C. In the instant case it was held that provisions of the two statutes
regarding probation have significant differences and they cannot coexist. Hence,
provisions of section 360 are wholly inapplicable in areas where Probation of
Offenders Act is made applicable. The difference between the two statutes is that
section 360 of the Code relates only to persons not under 21 years of age
convicted for an offence punishable with fine only or with imprisonment for a
term of 7 years or less, to any person under 21 years of age or any woman
convicted of an offence not punishable with sentence of death or imprisonment
for life. The scope of section 4 of the probation of offenders act is much wider. It
applies to any person found guilty of having committed an offence not
punishable with death or imprisonment for life. Therefore, the court held that the
provisions in the two statutes with significant differences could not be intended
to co-exist at the same time in the same area.
The order under this section follows a conviction and can be substituted for a
sentence.
361. Special reasons to be recorded in certain cases. Where in any case the Court
could have dealt with,-
(a) an accused person under section 360 or under the provisions of the Probation
of Offenders Act, 1958 (20 of 1958), or
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(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other
law for the time being in force for the treatment, training or rehabilitation of
youthful offenders, but has not done so, it shall record in its judgment the special
reasons for not having done so.
Special directive in case of non-punitive measures:
The discretion to sentence a convicted person to any punishment has been

narrowed down by section 361. This section requires that the court shall
normally deal with the offenders under section 360 or under the POA, or in case
of youthful offenders under the laws of treatment, training or rehabilitation, of
such youthful offenders; and that in case the court decides to pass any sentence
on the offender, it shall record special reasons for doing so. Thus, section 361
clearly shows that the courts while dealing with the convicted persons are to
adopt, as a matter of policy, non-punitive measures for the reformation and
rehabilitation of offenders, and as far as possible, to avoid awarding deterrent
and retributive punishments.
Where the accused may be given benefit of provisions contained in the POA or
section 360, but he is not given that benefit, section 361 requires the court to
gives its reasons for not doing so.
Section 361 of the code casts a duty upon the court to extend the benefit of the
Probation Act to the accused wherever it is possible and to state ‘special reasons’
if it does not do so. The section makes it mandatory for the court to record in its
judgment ‘special reasons’ for not extending the benefit of the Probation Act to
the accused. The ‘special reasons’ must be such as to compel the court to hold
that it is impossible to reform and rehabilitate the offender after examining the
matter with due regard to the age, character and antecedents of the offender and
circumstances in which the offence was committed. This is some indication by
the Legislature that reformation and rehabilitation and not mere deterrence, are
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now among the foremost objects of the administration of criminal justice in our
country.
The omission to record special reasons as required by section 361 is an

irregularity and may require the court of appeal or revision to set aside the
sentence passed by the lower court if the irregularity has occasioned a failure of
justice. In Santa Singh v. State of Punjab, it was observed by the Supreme
Court:
“Having regard to the object … there can be no doubt that it is one of the most
fundamental parts of criminal procedure and non-compliance thereof will ex-
facie vitiate the order [of sentence]. Even if it be regarded as an irregularity the
prejudice caused to the accused would be inherent and implicit because of the
infraction of the rules of natural justice which have been incorporated in this
statutory provision, because the accused has been completely deprived of an
opportunity to represent to the court regarding the proposed sentence and which
manifestly results in a failure of justice.”
Merits and Demerits of Probation
Following are the merits or advantages of probation: -
 It is most useful in the case of juvenile delinquents.

 It gives hope for the rehabilitation of the offender who has not committed
the offence.
 Probation is a way of sending good idea in the mind of offenders.
 It is helpful for both hardcore and youthful offenders.
 It helps in reducing the crowding in the jails.
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Following are the demerits or disadvantages of probation: -
 The threat of further punishment should also be incurred in the mind of

prisoners. Here there is no threat in the mind of prisoner.
 It decreases the average penalty.
PAROLE: MEANING:
Parole is a release from prison after part of the sentence has been served, the
prisoner still conditions until discharged and liable to return to the institution for
violation of any of these conditions. It helps in reducing over-crowding in
prisons. According to Donald Taft, “Parole is a release from prison after part of
the sentence has been served, the prisoner still remaining in custody and under
stated conditions until discharged and liable to return to the institution for
violation of any of these conditions. According to J.L. Gillin, “Parole is the
release from a penal or reformative institution, of an offender who remains under
the control of correctional authorities, in an attempt to find out whether he is fit
to live in the free society without supervision.
The Supreme Court in Smt. Poonam Lata v. Wadhawan & Others, has
clarified that parole is a grant of partial liberty or lessening of restrictions to a
convict prisoner, but release on parole does not, in any way, change the status of
the prisoner.
In the case of Avtar Singh v. State of Haryana,the Supreme Court held that
generally speaking, the act of granting parole is an administrative action and
parole is a form of temporary release from prison custody, which does not
suspend the sentence of the period of detention, but provides conditional release
from the prison and changes the mode of undergoing the sentence.
The main objectives of parole technique as stated in the Model Prison Manual
are: -
 To enable the inmate to maintain continuity with his family life and deal
with family matters;
 To save the inmate from the evil effects of continuous prison life;
 To enable the inmate to retain self-confidence and active interest in life.
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In India, the grant of Parole is largely governed by the rules made under the
Prison Act, 1894 and Prisoner Act, 1900. In parole there is a Parole Board
consists of parole administrators who are from among the respectable members
of society. These members are assigned the function of discharging convicted
prisoners on parole after careful scrutiny. They are performing a quasi-judicial
function.
Objectives of Parole:
As discussed, the primary aim of parole is to induce the humanitarian approach
to the prison system. It allows the prisoner to be released in the outside world for
a short period which in turn facilitates their evolution into a useful citizen. It is
essential to note that parole is a gracious act and cant be treated as the
right. Parole can also be termed as an essential reformative process for the
prisoners which is crucial as they still are very much part of the society. As per
the current system, every sentence above eighteen months is eligible for parole
post completion of one-third of the prison time.
Grounds for Parole:

The maximum period allowed for parole is one month and the prisoner has to
fulfil the condition of the minimum prison time to be served, to be applicable for
parole. Some of the grounds on which parole is approved are: -
1. Serious illness of a close family member.
2. Death of a family member.
3. An accident of a family member.
4. The marriage of a family member.
5. Delivery of a child by the prisoner's wife.
6. Serious damage to life or property of a family member due to natural calamity.
It is important to note that a certain category of prisoners is exempted from the
privilege of parole such as prisoners convicted for terrorism, multiple murders
and are a threat to national security etc.
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Procedure for Parole:

The procedure for parole involves the following steps:-
1. The prisoner after completing the mandate jail time applies for parole.
2. The jail authority then asks for a report from the police station where the arrest
was made.
3. The report is then verified.
4. If the reason for parole is a medical emergency, relevant medical records and
certificates are also verified.
5. The final report is then submitted to the Deputy Secretary, State Government or
Inspector General of Prisons.
6. The competent authority then takes the decision on parole.
Merits and Demerits of Parole
Following are the merits or advantages of parole: -
 It creates hopes among other prisoners.

 Once you have been released on parole, there is the opinion of the
society is liberal.
 Securing family life of the parolee.
 It eradicates over burden of the jails.
 It is also economical to the State. The cost of expenditure of parolee also
decreases.
 It creates threats on the mind of the parolee to maintain good conduct in
the society.
Following are the demerits or disadvantages of parole: -
 If any negligence in the selection of the parolee, it results in serious

consequences.
 Parole Board is bound to act on the aid and advice of the jail authority.
 It is not necessary that the prisoners who are maintaining their good
conduct in the prisons will maintain their good conduct in the society.
 Political interference.
 Ill-treatment and doubtful behaviour by the society makes him
impediment in his character development.
COMPARISON/DISTINCTION BETWEEN PROBATION AND PAROLE

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Probation and parole can be differentiated on the following grounds: -
 Historical Evolution: - The system of probation owes its origin to John

Augustus of Boston (U.S.A.) around 1841 whereas the system of parole
came into existence much later somewhere around 1900.
 Punitive Reaction: - In probation, there is no punitive reaction to the
crime. It is purely a treatment of offender. But in parole, the punitive
reaction to the crime is present. Few parts of sentence is served i.e.
punitive.
 Nature: - Probation is judicial in nature whereas parole is quasi-judicial
in nature and civilized or respected members of society constitute Parole
Board.
 Sentence: - In probation, no such formal penalty is imposed, if imposed
is not executed. But parole is granted after serving a part of sentence in
prison.
 Substitute for Punishment: - Probation is granted as a substitute of the
punishment. But parole is granted after completing a part of sentence.
 Punishment and Treatment: - Probation is only a treatment in which
the sentence is suspended. But parole implies both punishment and
treatment.
 Stage: - Probation is probably the first stage of correctional scheme
whereas parole is the last stage of correctional scheme.
 Stigma or Disqualification: - No stigma in case of probation because
use no sentence whereas a prisoner released on parole suffers
stigmatization as a convicted criminal in the society.
PRISON SYSTEM IN INDIA:
Introduction:
India is the world's largest democracy in more than name. It has free elections, a
multi-party parliamentary system, a diverse and outspoken free press, an
independent judiciary and the country abounds with the non-governmental
organizations that take pride in their independence and that helps to make up a
lively civil society. Yet if the checks and balances of democracy are supposed to
curb the government lawlessness, something has gone wrong in our country. At
least, it seems from an examination that has been recently conducted on
imprisonment and police detention in our country. In some major cities of the
country that we visited, and probably elsewhere as well, anyone unlucky enough
to be arrested faces a far greater likelihood of torture, or worse, at the hands of
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the police than in many of the countries entirely lacking in the protections for
civil liberties available in India. Though we had some inkling in advance that we
would find extensive police abuse of the detainees, we were not prepared for
what we discovered about the prisons and jails to which detainees are sent after
the police are done with them. They would be bad, if only because the life is
hard for the most of the Indians outside the prisons. It stands to a reason,
therefore, if incarceration is meant to punish then life inside the prisons should
be worse. What took us by surprise, however, is the manner in which it is worse
for the great majorities of prisoners and, more surprising, the fact that the
imprisonment is somewhat less harsh than we had expected for some prisoners.
Though prisons are supposed to be leveling institutions in which the variables
that affect the conditions of confinement which are expected to be the criminal
records of their prisoners and their behavior in prison, other factors are there that
may play a part in many countries.
Although prison systems everywhere are marked by inertia, few can match
India's in immutability of practice. A country which over 40 years ago cast off
British rule still administers its system under the colonial Prisons Act of 1894.
Perhaps because the act is such a relic of the past, or perhaps because prison
officials prefer the route of least accountability, the various state prison manuals
that embody the 1894 provisions are collectors' items, not only in short supply
but expensive. A number of prison commissions have attempted to update and
revise the code, but aside from a few states, these efforts have not received
legislative approval. It is not only the rules and regulations but day to day reality
of Indian prisons which is so archaic.
Evolution of prison system in India:

The evolution of prison system in India is very dramatic. One may say that
Indian prison system is one of the very complex systems of the world to
understand. In general three phases may be distinguished in the history of
prisons. During the first, which lasted until the middle of the 16th century, penal
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institutions were chiefly dungeons of detention rooms in secure parts of castles

or city, in which prisoners awaiting trial or execution of sentences were kept.
The second phase was one of experimentation with imprisonment a form of
punishment for certain types of offenders, mostly, Juveniles. The third phase
was the universal adaptation of imprisonment as the substitute for all capital
punishments. Prisons in the shape of the dungeons had existed from the time
immemorial in all the countries of the world. In his book, ‘The Future of
imprisonment’, Norvel Morris refers to punitive imprisonment used extensively
in Rome, Egypt, China, India, Assyria and Babylon and firmly established in
Renaissance Europe. But prison sentence, as a specific punishment, is relatively
recent origin. The prison as we know it has now come into existence largely as
an interim house of detention of an offender pending trial and punishment. In
India, the early prisons were only places of detention where an offender was
detained until trial and judgment and the execution of the latter. The structure of
the society in ancient India was founded on the principles enunciated by Manu
and explained by Yagnavalkya, Kautilya and others. Among various types of
corporal punishments – branding, hanging, mutilation and death, the
imprisonment was the most mild kind of penalty known prominently in ancient
Indian penology. The main aim of imprisonment was to keep away the wrong
doers, so that they might not defile the members of social order. These prisons
were dark dens, cool and damp, unlighted. There was not proper arrangement for
the sanitation and no means of facility for human dwelling. Fine, imprisonment,
banishment, mutilation and death sentence were the punishments in vogue. Fine
was for the most common and condemned person who could not pay his bill to
bondage until it was paid by his labour. Though the Indian law gives a little
description of jail life, even then historical account gave a clear picture after the
analysis of the available data. A few Smiriti writers supplied some information
concerning with the jail.
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Constitutional provisions and various international conventions on prison system

and inmates:
A society that believes in the worth of the individuals can have the quality of its belief
judged, at least in part, by the quality of its prisons and prove services and of recourses
made available to them. It is the human life that necessitates the human rights. Being
in the civilized society, organized with law and a system as such, it is essential to
ensure for every citizen a reasonably dignified life. Thus every right is considered as a
human right as that helps a human to live like a human being. Even if the person is
deprived some of his rights dye to commission of some wrongs, he is entitled to their
rights unaffected by the punishment for wrongs. Especially, when the principles and
objectives of criminology and penology are acquiring a human face the enforcement of
the human rights assume a very great relevance. Simply because a person is “under a
trial orconvicted”, his rights cannot be discarded as a whole. A man on becoming a
prisoner, whether convict or under trial, doesn’t cease to be human being. Though the
prisoners can’t be treated as animals yet the barbarous treatment sometimes given to
them in the prisons is not qualitatively human compared to the one given to the caged
inmates. The grim scenario of prison justice assumes in human misanthropic fragrance
when the intellect of prisoners is blemished, personhood of prison is fortified and they
are forced to lose their integrity and individuality and thereby compelling them to
become the right less slaves of the of the state It become gruesome indeed and calls
for interference of judicial power as the constitutional sentinel, when the
jurisprudence of prison justice becomes an escalating torture and the violent violation
of the human rights is perpetrated by agencies of the state. The mandates of the
preamble, fundamental rights and Directive Principles Provisions of the Indian
Constitution seem to be outlawed from the security bound prohibited areas of high
walled jails. Human rights are founded in the heart and mind of every citizen who in
common effort should labor to gather to create a world in which fundamental rights
and freedoms can be realized for all citizens. The people of the world in the chart of
U.N. have reaffirmed the faith in the Fundamental Human Rights, in the dignity and
work of human person. One of the purposes laid down in Article 1 of the United
Nations Organization is to promote and encourage respect for human rights and for
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fundamental freedoms of all. To achieve this purpose, the U.N. General Assembly
adopted the “Universal Declaration of Human rights” on December 10, 1948 to
promote respect for and to the secure universal and the effective recognition and
observance of these rights and freedoms. Article 3 of the declaration provides to
everyone the right to life, liberty and security of perso. Article 5 outlaws the tortures,
or cruel, in human degrading treatment or punishment. Article 8 provides person that
no one shall be subjected to arbitrary arrest, detention or exile. Article 10 provides
arrest, detention or exile Article 10 provides for fair public hearing by impartial
tribunals. Accused shall be presumed to be innocent unless proved the guilty and he
shall not be punishment under ex post facto lows. Arbitrary interference with his
privacy, family, home or correspondence or attack on his honor or reputation shall not
be allowed. Article 21 of Indian Constitution, among others, is the embodiment of wide
range of human rights a single sentence of that Article - “No person shall be deprived
of his life and personal liberty except according to procedure established by law”
become a perennial source of human law. Article 21 guarantees about the right to
human dignity even to the prisoners. In fact, right to human dignity belongs to all the
human beings inside and outside the prison in India. Whether prisoners are entitled to
fundamental rights guaranteed by the constitution was one of the important issues
examined by the supreme court immediately after the commencement of the
constitution The Court declared that when a person loses his right to personal liberty
by way of detention under a valid law enacted by a competent legislature, and so long
as long he remains under such detention, he ceases to be entitled to enjoy his other
fundamental freedoms. The courts have recently viewed third degree methods and
custodial deaths in police custody as the serious violations of human rights and
constitutional provision of right to life and liberty. Under the Indian Constitution, there
is no such provision inpart III which can safeguard the discretionary and sometimes
brutal treatment given to the prisoners. But the supreme court of India, by interpreting
Article 21 of the Constitution has developed human rights jurisprudence for the
preservation and protection of prisoners’ right to human dignity. In the case of Charles
Shobroj v- Superintendent Central Jail, Tihar, New Delhi Supreme court recognized
that the right to life is more than mere animal existence or vegetable substance. Even
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in prison a person is required to be treated with dignity and one enjoy all the right
specified In Article 21. Sunil Batra V. Delhi Administration in this case, supreme court
held that the prisoners are not wholly denuded of their fundamental right they are
entitled to all the constitutional rights unless their liberty has been constitutionally
curtailed. Though a prisoner’s liberty is in the very nature of the thing circumscribed by
the very fact of his confinement is: his interest in the limited liberty left to him is that
all more important. Conviction for a crime does not reduce the person into a
nonperson whose right are subject to the whim of prison administration and therefore
the imposition of any major punishments within the prison system, are conditional
upon the observance of procedural safeguards freedom behind bar is part of Indian
constitution trust and the index of our collective consciousness. Supreme court of India
recognized several rights and protection for the prissiness, like as:
i) Right for the free legal aid.
ii) Right for the speedy trial
iii) Right against the hand cuffing
iv) Right against the inhuman treatments
v) Right against the public hanging
vi) Prisoner’s Grievances.
In M.H. Hoskot v State of Maharastra the supreme Court aid down that right to free
legal aid at the cost to the state to an accessed who could not afford legal services for
the reason of poverty in India, indigence or incommunicado situation was part of fear,
just and reasonable procedures implicit in Article 21.
In Anil Rai v. State of Bihar Supreme Court took a serious note of delay in delivery of
judgements. The court has observed that any inordinate, unexplained and negligent
delay in pronouncing the judgement by the high court infringed the right under Article
21 of the Constitution.
In Prem Shanker v Delhi Administration, the Supreme Court declared that hand
cuffing is prima facia inhuman and therefore unreasonable is over harsh and that the
first flush, arbitrary. A rule requiring for every trial person accused of a non-boilable
offence punishable with more than 3 yrs. Prison term to be routinely hand cuffed
during the transition from prison to court for trial violates Article 14, 19 & 21. No
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doubt about the democratic legitimacy which characterizes our era. Liberty and
freedom are the elements of prisoner’s human right and democracy. In so far as
developing countries are concerned, it has to be observed that, one must believe in
one’s country’s democracy and human rights of prisoners.
Prisoners’ rights: constitutional provisions:

The fundamental rights guaranteed under the Constitution are not absolute and many
restrictions have been imposed on their enjoyment. Right to freedom of the person is
one of the most important rights among the fundamental rights. When a person is
convicted or put in the prison, his status is much different from that of an ordinary
person. A prisoner, in India, cannot claim all the fundamental rights that are available
to an ordinary person. The Supreme Court of India and various High Courts in India
have discussed flue scope various decisions. Before discussing these decisions, it is very
much necessary to see various constitutional provisions with regard to prisoners’
rights.
Statutory Provisions:
There is no guarantee of prisoner's right as such in the Constitution of India. However,
certain rights which have been enumerated in Part III of the Constitution are available
to the prisoners also because a prisoner remains a "person" inside the prison. The right
to the personal liberty has now been given very wide interpretation by the Supreme
Court. This right is available not only for free people but even to those behind bars.
The right to speedy trial4, free legal aids, right against torture, right against in human,
and degrading treatment accompany a person into the prison also. One of the
important provisions of the Constitution of India is generally applied by the courts,
which is Article 14 in which the principle of equality is embodied. The rule that "like
should be treated alike" and the concept of reasonable classification as contained in
the article 14, has been a very useful guide for the courts to determine the category of
prisoners and their basis of classification in different categories. Originally the
treatments of prisoners inside the prisons were cruel and barbarous. ‘When a person
was convicted, it was thought that he lost all his rights. The prison community was
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treated as the closed system and there was no access for outsiders in the affairs of the
prisoners. The authorities, under the guise of disciplines, were able to inflict any injury
upon the inmates in the prison. The courts, in India, were reluctant to interfere in the
affairs of the prisoners: it was completely left to the discretion of the executive. But
gradually, a change was visible.
Right to Fair Procedure:
When we trace the origin of the prisoner's right in India, the embryo we can find in the
celebrated decision of A. K.Gopalan v. State of Madras. One of the main contentions
raised by the petitioner was that the phrase "procedure established by law" as
contained in article 21 of the Constitution includes a ‘fair and reasonable‘ procedure
and not a mere semblance of procedure prescribed by the State for the deprivation of
life or personal liberty of individuals. The majority view in Gopalan was that when a
person is totally deprived of his personal liberty under a procedure established by the
law, the fundamental rights including the right to freedom of movement are not
available. "There can’t be any such thing as absolute or uncontrolled liberty wholly
freed from restraint, for that would lead to anarchy and disorders. In some cases, the
restrictions have to be placed upon free exercise of individual rights to safeguard.
Prisons Act 1894, on the basis of what the present jail management and administration
operates in India. This Act has hardly undergone through any substantial change.
However, the process of reviewing of the prison problems in India has been continued
even after this. In the report of the Indian Jail Committee (IJC) 1919-20, for the first
time in the history of prisons, 'reformation and rehabilitation' of offenders were
identified as the main objective of the prison administrator. Several committees and
commissions have been appointed by both central and state governments after
Independence, which has emphasized humanization of the conditions in the prisons.
The need for completely overhauling and consolidating the laws related with the
prison has been constantly highlighted. The Government of India Act 1935 has resulted
in the transfer of the subjects of jails from the centre list to the control of provincial
governments, hence further reduced the possibility of uniform implementation of a
prison policy at national level.
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The State governments thus having their own rules for the day to day administration of
prisons in India, upkeep and maintenance of prisoners, and prescribing procedures. In
the year of 1951 the Government of India had invited the United Nations expert on
correctional work, Dr. W.C. Reckless to undertake a study on the prison administration
for Indian Prison and to suggest policy reform for it. His report was titled as 'Jail
Administration in India' made a plea for transforming jails into reformation centers so
that reformation of India could be easy for the Indian prison. He also recommended
that the revision should be for outdated jail and provided the manuals. In the year of
1952 the Eighth Conference of the Inspector General’s of Prisons, have also supported
the recommendations of Dr. Reckless regarding prison reformation. Accordingly the
Government of India has appointed the All India Jail Manual Committee in the year of
1957 for preparing a model prison manual. The committee submitted report in 1960.
The report had made a forceful plea for formulating a uniform policy and latest
methods relating with the jail administration, probation, after-care, juvenile and
remand homes, certified and reformatory school, borstals and protective homes,
suppression of immoral traffic etc.
Existing statues for prison management in India:
The existing statutes which have a bearing on regulation and management of prisons
in the country are:
1. The Indian Penal Code, 1860.
2. The Prisons Act, 1894.
3. The Prisoners Act, 1900.
4. The Identification of Prisoners Act, 1920.
5. Constitution of India, 1950
6. The Transfer of Prisoners Act, 1950.
7. The Representation of People’s Act, 1951.
8. The Prisoners (Attendance in the Courts) Act, 1955.
9. The Probation of the Offenders Act, 1958.
10. The Code of the Criminal Procedure, 1973.
11. The Mental Health Act, 1987.
12. The Juvenile Justice (Care & Protection) Act, 2000.
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13. The Repatriation of the Prisoners Act, 2003.

14. Model Prison Manual (2003).
PRISON REFORMS IN INDIA:

The concept of modern prison in India originated with the Minute by TB Macaulay in
1835. A Prison Discipline Committee was appointed which submitted its report on
1838. The committee recommended increased rigorousness of treatment while
rejecting all humanitarian needs and reform of prisoners. Following the
recommendations of the Committee, Central Prisons were constructed from 1846. The
contemporary Prison administration in India is thus a legacy of British rule. It is based
on the notion that the best criminal code can be of little use to a community unless
there is good machinery for the infliction of punishment. In 1864, the Second
Commission of Inquiry into Jail Management and Discipline made similar
recommendations as the 1838 Committee. In addition, this Commission made some
specific suggestions regarding accommodation for prisoners, improvement in diet,
clothing, bedding and medical care. In 1888, the Fourth Jail Commission was
appointed. On the basis of its recommendations, a consolidated prison bill was
formulated. Provisions regarding jail offences and punishment were specially examined
by a committee of experts on Jail Management. In 1894, the draft bill became law with
the assent of the Viceroy. It is this Act which forms the basis for the present-day jail
management and administration in India. This Act has hardly undergone any
substantial changes since its inception. However, the process of review of prison
problems in India continued. In the report of the Indian Jail Committee 1919-20, for
the first time in the history of prisons, 'reformation and rehabilitation' of offenders
were identified as the objectives of prison. The Government of India Act 1935 resulted
in the transfer of the subject of jails from the Central List to the control of Provincial
Governments and henceforth reduced the possibility of uniform implementation of a
prison policy at the national level. Thus, State Governments have their own rules and
regulations for the day to day administration of prisons, maintenance of prisoners, and
prescribing procedures.
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THE PAKWASA COMMITTEE

After independence, various Committees were appointed to improve the condition of
prisons in India. The Pakwasa Committee in 1949 suggested the system of utilizing
prisoners as labour for road work without any intensive supervision over them. It was
from this time onwards that a system of wages for prisoners for their labour was
introduced. Subsequently, certain liberal provisions were also introduced in jails
manuals by which well-behaved inmates were rewarded with remission in their
sentence. In 1951, the Government of India invited the United Nations expert on
correctional work, Dr. W.C. Reckless, to undertake a study on prison administration
and to suggest policy reforms. His report titled 'Jail Administration in India' made a
plea for transforming jails into reformation centers. He also recommended the revision
of outdated jail manuals. In 1952, the Eighth Conference of the Inspectors General of
Prisons also supported the recommendations of Dr. Reckless regarding prison reform.
Accordingly, the Government of India appointed the All India Jail Manual Committee in
1957 to prepare a model prison manual. The committee submitted its report in 1960.
MODEL PRISON MANUAL The Model Prison Manual 1960 is the guiding principle for
prison management in India. On the lines of the Model Prison Manual 1960, the Union
Ministry of Home Affairs, in 1972, appointed a working group on prisons. It brought
out in its report the need for a national policy on prisons. It also made an important
recommendation with regard to the classification and treatment of offenders and laid
down certain principles.
THE MULLA COMMITTEE
In 1980 the Government of India set-up a Committee on Jail Reforms under the
Chairmanship of Justice A. N. Mulla. The Mulla Committee submitted its report in1983.
Some of the prominent recommendations of the Mulla committee are:  Improving
prison condition by making available proper food, clothing, sanitation,
 The prison staff to be properly trained and organized into different cadres. Setting up
an All India Service called the Indian Prisons & Correctional Service.
 After-care, rehabilitation and probation to be an integral part of prison service.
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 The press and public to be allowed inside prisons and allied correctional institutions
periodically, so that the public may have first-hand information about the conditions of
prisons and be willing to co-operate in rehabilitation work.
 Undertrials in jails to be reduced to bare minimum and they be kept away from
convicts. Undertrials constitute a sizable portion of prison population. Their number to
be reduced by speedy trial and liberalization of bail provisions.
 The Government may make an effort to provide adequate financial resources.
THE KRISHNA IYER COMMITTEE:

In 1987, the Justice Krishna Iyer Committee was appointed to study the situation of
women prisoners in India. It recommended the induction of more women into the
police force in view of their special role in tackling women and child offenders.
SUBSEQUENT DEVELOPMENTS
Following the Supreme Court direction (1996) in Ramamurthy vs State of Karnataka to
bring about uniformity of prison laws and prepare a draft model prison manual, a
committee was set up in the Bureau of Police Research and Development (BPR&D). In
1999, a draft Model Prison Management Bill (The Prison Administration 7 and
Treatment of Prisoners Bill, 1998) was circulated to replace the Prisons Act 1894 by the
Government of India to the States but this Bill is yet to be finalized. Meanwhile, a
Model Prison Manual was prepared in 2003 by evolving national consensus on relevant
issues relating to prison reforms in India and circulated to all State Governments for
guidance. With the passage of time and after having gained a better understanding of
ground realities, a need was felt to revise and update the Manual to reflect the
developments of the past decade. In the meantime, the Supreme Court had also issued
several directions. An expert committee was constituted in 2014 to revamp the Model
Prison Manual prepared in 2003. The expert committee extensively reviewed the
model prison manual and came up with a draft Model Prison Manual in 2016. The
Model Prison Manual 2016 was finalized with the approval of the Home Ministry and
circulated to all States and Union Territories for their guidance. The new manual aims
at bringing uniformity in laws, rules and regulations governing prison administration
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and management of prisoners all over the country. Its key features include an
emphasis on prison computerization, special provisions for women prisoners, focus on
after care services, prison inspections, rights of prisoners sentenced to death,
repatriation of foreign prisoners, enhanced focus on prison correctional staff, to name
a few.
The Supreme Court, in the matter of Suo Moto Writ Petition (Civil) No. 406/2013
titled Re: Inhuman Condition Prevailing in 1382 prisons in India, asked the Centre and
all States to implement its directions on prison reforms including filling up of vacancies
of jail staff across the country and devise a scheme to audit their accounts.
Educational facilities in prison:

There is a proven correlation between illiteracy, innumeracy and offending. Most of
the prisoners have access to educational courses and training while in prison. The
objective is to enable them to gain the skills and the qualifications that will help them
to find employment on release. Research shows that the prisoners who gain the
employment after their release are far less likely to re-offend. The correctional system
in the United States (USA) is experiencing a metamorphosis. Consequently, now is a
critical time for the development of robust theories of the prison culture. Prison
populations continue to soar at alarming rates, and laws impacting the prison
population continue to change. Determinate sentencing laws, including Three-Strikes
Laws and habitual offender statutes, have helped give the prison population a new
dynamic, as the number of elderly offenders continues to grow. Other offender groups
who are represented in increasing proportions are those inmates with the terminal
diseases, such as AIDS, and female offenders. It is completely and precisely possible
that this crossroad in corrections cannot be fully understood in the context of
traditional models of the prison culture. Even if theoretical models take on a new
composition, elements of the classical models will inevitably remain, as they are still
relevant in gaining an understanding of the prison culture.
OPEN PRISONS:
The concept of Open Prisons
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The paradigm of Reformative Punishment does not support the traditional

inhuman jails with bars but is more liberal and supports the concept of open
prisons, which is a trust-based prison with minimum security.
The concept of Open prisons was first developed in U.K in the 1930s and was
based on the idea of ‘carrots’ rather than ‘sticks.
This open prison helps the prisoner to gradually connect with the world before
the release.
Many states have an open prison but do not accommodate any prisoners.
The reasons for this overcrowding and at the same time under-utilization could
be because the Jails are a part of the state list and hence a collaborative approach
cannot be adopted by the states.
Open Jails are prisons without boundaries and cellsIn open jails the prisoners are
given the liberty:
 To live with their families
 Allowed to find employment
 Prisoners can move out of the prison for their work and are supposed to
come back to the prison campus after their working hours.
The open jails in India involve the prisoners in activities like:

 Farming,
 Animal husbandry etc.
Convicts can be sent to Open jails for two purposes
 For the purpose to slowly cut down his/her level of socialization, instead
of directly confining the convict in a closed prison, as this can negatively
affect the mental health of the prisoner.
 Secondly, in order to help the prisoner to slowly re-socialize with the
world. While serving in the closed prison, the prisoner is bound to lose
touch with the outside world and hence wouldn’t be able to rehabilitate
himself after the release.
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The money earned by these prisoners is spent by them for their families and no
amount except a small administration charge is to be paid to the Jail.
Every morning at 6 a.m. a roll call takes place after which the prisoners are
allowed to move out and another roll call is scheduled at 7 p.m., till then the
prisoners are expected to return to the prison.
These prisons exist for almost 8 decades now, however, no complaints of any
prisoner escaping have come forward.
The condition open prisons in India
The conditions of prisons in India has been severely criticised. There have many
cases of
 Custodial violence
 Custodial deaths
 Suicides, and
 Overcrowding etc.
The Supreme Court has time and again given directions on Prison Reforms, In
many cases, the Supreme Court has actively endorsed the Open Jail system.
Criticisms of the Open Jails in India:

 Unnecessary and arbitrary provisions for ineligibility, which filter out
many deserving convicts.
 Under-utilisation of the Open Prisons. These prisons have a capacity to
accommodate 25776 prisoners however, only 3786 prisoners are
currently in these prisons (as of 2015). This shows that despite the heavy
overcrowding in the closed prisons, open prisons are vacant.
 The prisoners in most states are selected by a committee, who have no
accountability over them, as they are not expected to provide reasons for
their selections. This leads to partiality and corruption.
 No measures are taken for the convicts beginning their sentence. At least,
semi-open prisons should be made open for the fresh convicts.
 No provision of Open Jails to under trial prisoners.
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 Inadequate Open Prisons in every state. Some states are concentrated

with Open Prisons while some have just one and no Union Territory in
India has an Open Prison. Due to the state list subject, this inequality
exists among different states.
 Open Prisons are the only rehabilitative prisons in India. Which also
favor only a small number of convicts. There is a need for more
rehabilitative provisions for other convicts, in order to reduce the
amounts of custodial deaths.
 The rules and laws governing the selection and administration are
extremely old and thus unfit for the present situations.
Reforms needed in the status quo:
 The number of Open Prisons and better utilization of the currently
existing ones through amendments to the rules and relaxation of the strict
eligibility criteria.
 Efforts should be taken to move the subject of prisons to the union list.
As this will bring in uniform reforms and every prisoner will get similar
rights.
 In order to bring accountability in the selection procedure, the state
committee should be compelled to provide reasons to the Chief Minister
of the concerned state for the selection made. These documents should
also be made available within the ambit of RTI so that common people
can also get access to it.
 Semi-open Jail in order to provide rehabilitation to mentally disturbed
prisoners, semi-open jails should be promoted. They do not provide
complete liberty, but there are no prison cells and prisoners are provided
with employment opportunities within the Jail campus. One of the finest
semi-open jail in India is the Tihar Semi-Open Jail in Delhi.
 Supreme Court or the concerned High courts should also be given the
jurisdiction to allow certain prisoners to directly go to the Open Prison.
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 Every prisoner whether in open or closed prison should be made aware

of his/her rights and should be informed about the process of selection to
open prisons. This will not only give the required information to the
prisoners but will also reinforce good behaviour among these prisoners.
Theories and Kinds of Punishment:

Administration of Justice is the primary functions of the State, is generally
divided into administration of Civil Justice and Administration of Criminal
Justice. The main purpose of Administration of criminal Justice is to punish the
wrongdoer. It is the State which punishes the Criminals. From the ancient times,
a number of theories have been given concerning the purpose of punishment.
Punishment Meaning:
Punishment is a process by which the state inflicts some pain to the persons or
property of person who is found guilty of Crime.
Object:
The Object of Punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing the actual
offenders from committing further offenses and by reforming and turning them
into law abiding citizens.
Theories of Punishments:
Theories of Punishment are as follows
i) Deterrent Theory
'To deter' means, " to abstain from action/ doing ". Deterrent means,
“infliction of severe punishments with punishments with a view to prevent the
offender from committing the crime again."
According to this theory, the object of punishment is not to only prevent
the wrongdoer from doing a wrong a second time, but also to make him an
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example to others who have criminal tendencies. Salmond considers deterrent

aspects of criminal justice to be the most important for control of crime.
A Judge once said: " I don't punish you for stealing the sheep but so that
sheep may not be stolen." The aim of punishment is not revenge but terror.
According to Manu "penalty keeps the people under control, penalty
protects them, penalty remains awake when people are asleep, so the wise have
regarded punishment is a source of righteousness"
According to Paton " The deterrent theory emphasis the necessity of
protecting society, by so treating the prisoners that others will be deterred from
breaking law.
The deterrent theory was the basis of punishment in England in the
Medieval Period. Sever and Inhuman punishments were order of the day and
inflicted even for minor offenses like pick pocketing and stealing etc. The
culprits were subjected to the sever punishment of death by stonning and
whipping.
In India during the Mughal period, the penalty of a death sentence or
mutilation of the limbs was imposed even for the petty offenses of forgery and
stealing etc. Even today in moat of the Muslim countries,Such as Pakistan, Iraq,
Iran, Saudi Arabia, the deterrent theory is the basis of Penal Jurisprudence.
Criticism :
There is a lot of criticism of the deterrent theory of punishment in modern
times. It has been criticized on the grounds that it has proved ineffective in
checking crimes and also that excessive harshness of punishment tends to defeat
its own purpose by arousing the sympathy of the public towards those who are
given cruel and inhuman punishment. Hardened criminals are not afraid of
punishment. Punishment losses its horror once the criminal is punished.
ii) Retributive Theory

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'Retributive' means , punitive or payback or make a return to." In Primitive

society punishment was mainly retributive. The person wronged was allowed to
have revenge against the wrongdoer. The Principle of 'an eye for an eye', 'a tooth
for a tooth ', a nail for nail, limb for limb was the basis of criminal
administration.
According to Justice Holmes 'It is commonly known that the early forms of
legal procedure were grounded in vengeance.'
According to Sir John Salmond the retributive purpose of punishment
consists in avenging the wrong done by the criminal to society.
The idea behind this theory is to make the offender realize the suffering /
pain. The advocates of this theory plead that the criminal deserve to suffer. The
suffering imposed by the State in its corporate capacity is considered the
political counterpart of individual revenge. It is urged that unless the criminal
receives the punishment he deserves, one or both of the following effects will
result, namely, the victim will seek individual revenge, which may mean
lynching (killing or punishing violently ), or the victim will refuse to make a
complaint or offer testimony and State will therefore be handicapped in dealing
with criminals . The modern criminology discards retribution in the sense of
vengeance, but in the sense of reprobation, it must always be an essential
element in any form of punishment.
Criticism:
Critics of retributive theory points out that punishment per se is not a remedy
for the mischief committed by the offender. It merely aggravates the mischief.
Punishment in itself evil and can be justified only on the ground that it yields
better result. Revenge is wild justice. Retribution is only a subsidiary purpose
served by punishment.
iii) Preventive theory:

Preventive theory is also known as 'theory of disablement.' According to
this theory, punishment is based on the proposition, "not to avenge crime but to
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prevent it" The aim of this theory is to disable the criminal. Offenders are
disabled from repeating the crime by awarding punishments, such as death, exile
or forfeiture of an office. By putting the criminal in jail, he is prevented from
committing another crime.
The supporters of this theory recognize imprisonment as the best mode of
punishment because it serves as an effective deterrent as also a useful preventive
measure. Bentham supported the preventive theory because of its humanizing
influence on criminal law.
According to Justice Holmes " There can be no case in which the law-maker
makes certain conduct criminal without his thereby showing a wish and purpose
to prevent that conduct. Prevention would accordingly seem to be the chief and
only universal purpose of punishment. The law threaten certain pains if you do
certain things, intending thereby to give you a new motive for not doing them. If
you persist in doing them, it has to inflict the pains in order that its threats may
continue to be believed."
According to Paton : " The Preventive theory concentrates on the prisoner
and seeks to prevent him from offending again in the future. The death penalty
and exile serve the same purpose.
Criticism:
Critics points out that Preventative Punishment has the undesirable effect of
hardening first offenders, or juvenile offenders, when imprisonment is the
punishment, by putting them in the association of Harden Criminals.
iv) Reformative Theory:

According to Reformative theory, the object is of punishment is the
reformation of criminals. This theory seeks to bring about a change in the
attitude of offender so as to rehabilitate him as a law abiding member of society.
Even if an offender commits a crime under certain circumstances, he does not
cease to be a human being. The circumstances under which he committed the
crime may not occur again. Crime is a mental disease, caused by different anti-
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social elements. Therefore the mental cure of criminals rather than awarding
punishment will serve the purpose. If the criminals are educated and trained,
they will be competent to behave well in the society.
The object of the punishment should be reform the offender. The criminal
must be educated and taught some art or craft or industry during his term of
imprisonment, so that they may be able to lead a good life and become a
responsible and respectable citizen after release from jail. While awarding
punishment judge should study the character and age of the offender, his early
breeding, family background, his education and environment, the circumstances
under which he or she committed the crime, the motive which prompted him or
her indulge in criminal activities, etc. The object of doing so is to acquaint the
judge with the circumstances under which the offence was committed so that he
could award punishment that could be serve the ends of justice.
Criticism :
Critics of this theory state that if Criminals are sent to prison to be
transformed into good citizens, a prison will no longer be a 'prison' but a
dwelling house.
This theory has been proved to be successful in case of young offenders.
v) Expiatory Theory:
Expiatory theory of Punishment is based on morals. According to this theory
repentance or expiation by offender itself is a punishment. If the offender
expiates or repents, he must be forgive. Expiatory theory of punishment was
prevalent in ancient Indian criminal law. Expiations were performed by way of
uttering mantras, fasting or even burning oneself to death.
vi) Theory of Compensation

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According to Theory of Compensation the object of punishment must not

be merely to prevent further crimes but also to compensate the victim of the
Crime.
Criticism:
Critics points out that it tends to oversimplify the motive to crime.
Recidivism:
Recidivism can be defined as the tendency of habitual offenders to commit
crimes. Recidivism is a tendency to relapse into a previous condition or mode of
behavior; especially: relapse into criminal behavior. It is the tendency of
criminals to revert back to their previous criminal habits and behaviors.
Involvement in the same crime after release, relapse into the same condition of
behavior, reconviction or punishment for the same offence more than once
comes under the scope of the term. This concept of recidivism is an important
component of criminology because this pattern of behavior of criminals can be
attributed to the causative factors that drive them to do so. These causes/ factors
form the study of criminology and are very essential to be figured. This will help
us arrive at conclusions and outcomes to check the increasing rate of crimes,
committed specially by recidivists.
Causes of Recidivism
1. Intensive Supervision Probation:
A study by the National Institute of Justice, United States and RAND
corporation evaluation for the Bureau of Justice intended to answer the question
of how intensive supervision probation (ISP) relates to recidivism.The
demonstrations found out the ISPs are not very successful in reducing recidivism
(new arrests and technical violations). ISP programs were found to be effective
in surveillance and as intermediate programs. The study came to two
conclusions why such alternative mechanisms are not effective in stopping
recidivism.
a. Overworking of the probation officers
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b. Escape of the offenders under regular surveillance programmes due to the lack
of the strict supervision on them
2. Unemployment:
Unemployment forms one of the major reasons for probation failure and the
increase of the offenders slipping back to the crime culture again.
Unemployment inevitably ends up being the cause and effect of recidivism. An
unemployed probationer is unable to meet the probation fees, court costs, etc.,
gradually ending up violating the probation. To seek recourse, he may choose to
earn by engaging in the same illegal means, which gradually results in high
recidivism in offenders. It’s a general observation that the unemployed have
little commitment to conformity, i.e. they have little to lose while committing a
new crime after their probation. The fact that most of the convicts have garnered
little to no skills and have a scant employment history, they often fall in the
unskilled or semi-skilled categories making it extremely difficult for them to get
jobs. The criminal status also plays negatively with their ability to obtain jobs.
3.Substance Abuse:
Influence of drugs and alcohol are the main instruments for the commission of
crime. Most cases that are reported before the police authorities comprise of
Driving underInfluence, Driving while intoxicated or boating while intoxicated.
The National Crime Records Bureau of India reported that in the year 2015, a
total of 42% of Drunk Driving cases were reported which ended rather fatally.
Most of those people who are heavily dependent on the drugs seek the route of
crime to obtain the money that is required for drugs. Drugs and alcohol takes
three forms in the life of a convict:
a. As a lubricant, it brings predisposition to criminality for an offender, for e.g.
drugs makes a sex-offender more vulnerable into relapsing and committing the
crime again.
b. As an engine for the commission of the crime.
c. As a motivation for one seeks to have a source of income by drugs or either to
obtain drugs thus making him sort to illegal ways to obtain them.
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4. Criminal History:
In 2014, the National Crimes Records Bureau reported that almost 7.8% of the
total old offenders were of a kind who had been convicted more than three times
for the same crime or a different offence of the same nature. Various remedies
such as ‘Three strikes, you’re out’, ‘Standard offender’ laws have often been
applied in the foreign jurisdictions but have had no concrete results. Various
jurists and researchers put emphasis on the judiciary taking into consideration
with its intuitiveness and wisdom those convicts which appear to be career
criminals so as to provide them with larger space and proper prison systems so
to prevent them to relapse into committing crimes after their sentence has ended.
5. Seriousness of the offence:
Researchers have found in a RAND study that those involved in crimes such as
theft, burglary, robbery and property theft crimes are most likely to commit
recidivism for the sole reason that the aftermaths of such offenses are not as
severe as the serious offences. The persistent nonviolent criminality of the nature
of the offense makes it more likely to lead offenders to continue criminality. A
contradiction in this aspect is the rise in the rates of sex offenders despite the
severity of its offense. But as sexual offenses are committed in the brink of lapse
of rationality for the personal gratification of needs, it makes it easier for a sex-
offender to relapse into recidivism.
6. Age/Gender/Education:
The age, gender and education of a convict are very relevant to be considered
while predicting whether that person is likely to relapse into recidivism. The
likelihood of a male, who has not completed his high school with a prior arrest
record to slip back to previous offences, is more likely than others. The basic
understanding of the courts in India are that the women of whatever age or
background, are care-givers and are needed more at home by either the spouse or
child and thus are less likely to be sent to the prisons. As they make up less in
the parole population, it reduces the tendency for them to relapse into the
previous crimes. The fact that most concerns the jurists, legislators and social
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welfare workers is the rising tendency of juvenile delinquents returning back to

the dangerous crime culture after they have served their time in care and
protection centers or in community service. The tendency of juveniles relapsing
increases, following a multitude of factors, such as dropping out of schools and
other educational institutions, lack of support from family members, the easy
availability of income source through crime-based activities, etc. The recent
amendment in the Juvenile Justice (Care and Protection) Act, 2015, with its
increased strictness to start treating juveniles as adult offenders in courts, lacks
in its fundamentals to deal and provide correctional and remedial methods for
juvenile sex offenders, juvenile recidivists and girls who have committed serious
offences.
Preventive Measures to Control Recidivism:
Repetition of offences is a major crime that has varied detrimental consequences
in the society. This crime needs to be prevented and curbed to ensure that a
crime of similar nature by habitualoffenders is not committed again and the
offenders are released to become better citizens and contribute in the harmonious
working of the society. Preventive measures need to be adopted in the criminal
justice system to control recidivism. Some of them, as categorized in broad
heads are:
1. Effective Integrated Reforms and Treatment Programmes Prison
Programmes are an effective way to facilitate conditions to prisoners that
ensure their reformation and rehabilitation after their release. These programmes
can also cater to such development and growth of these prisoners that they
become skilled in a short period of time and become able to maintain their
livelihoods post release.
2. Effective Prison Administration Prison administration needs to be
checked at regular intervals. It should facilitate security of prisoners on the basis
of different security requirements with basic minimum facilities to all.
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3. After-care and Rehabilitation ProgrammesThese programmes entail a

period of necessary recovery for a released prisoner who suffers from such
psychological damage that puts him in a trauma of social ostracism.

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The Central Law College

In any study on any subject, it is necessary at the beginning to have a conception

1. The word ‘crime’ is of origin viz; ‘Crimean’ which means ‘charge’ or

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3. James Anthony Froude (1818-94) wrote, “Crime is not punished as offence

As we have indicated, there are competing definitions of crime. This produces

There are tree broad levels of criminology explanation;

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a) Individual; The main focus is on the personal or individual characteristics of

Clinard and Quincy in their Criminal Behaviour Systems: A Topology, 1967

1. Violent Personal Crimes

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Criminology is the scientific study of crime, including its causes, responses by

Just as criminology is a sub-group of sociology, criminology itself has several

• Penology: the study of prisons and prison systems

• Biocriminology: the study of the biological basis of criminal behaviour

• Feminist criminology: the study of women and crime

• Criminalistics: the study of crime detection.

Need for Criminal Study:

 Increase in the horrendous growth of crime

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d) For law enforcement for purposes of investigation, prosecution,

e) For prison officers, social workers, psychologists, etc to understand the

f) To enhance official understanding of criminology, the types of offences,

The government is based to plan better in terms of allocation of resources

g) For the vocational criminologist, he will also be concerned with research

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a program, an institution or strategy. Often, the goal is to solve an administrative

h) For the critical or analytical strand of criminology, the research or study

Meaning of the ‘School of Criminology’:

Edwin Sutherland pointed out that a school of criminology connotes

“the system of thought which consists of an integrated theory of causation of

Therefore, a school of criminology implies the following three important points:

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2. Each school of criminology suggests punishment and preventive measures to

In an attempt to find a rational explanation of crime, a large number of theories

Pre-Classical School of Criminology:

The period of seventeenth and eighteenth century in Europe was dominated by

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The Classical School:

The Classical School in criminology is usually a reference to the eighteenth-

Beccaria, the pioneer of modern criminology expounded his naturalistic theory

Main Reforms Advocated by the Classical School:

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professionally trained so many of their decisions were unsatisfactory being the

Cesare Beccaria (1738-1794)

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In his book "On Crimes and Punishments" Beccaria presented a coherent,

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Punishment Should be Based on the Pleasure/Pain Principle: “Pleasure and pain

The Punishment Should be Determined by the Crime: “If mathematical

Capital Punishment Should be Abolished: “The punishment of death is not

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so slight an impression, that it has not force enough to withstand forgetfulness

The Use of Torture to Gain Confessions Should be Abolished: “It is

Legal scholars and reformers throughout Europe proclaimed their indebtedness

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Bentham proposed a precise pseudo-mathematical formula for this process,

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is morally deficient: the hangman is paying the murder the compliment of

But the concept is problematic because it depends on two critical assumptions: