CRIMINOLOGY AND PENOLOGY

Unit-1

Qs. Criminology: Definition, Nature and Scope.

Ans. Crime is a necessary evil. It emerged with the evolution of society. Gradually changes took
take place in the quantum, form and technique and now they have reached the stage of cyber
crime. Much has been discussed and thought on the causes and remedies for crime. This subject
of discussion and thinking is known as criminology.

What is criminology?

Criminology is a combination of two Latin words:

Crimen – crime
Logus or logy – science

It is the science or study of crime. It is concerned with the conduct of individuals which is
prohibited by society and law. It is a socio-legal study which seeks to discover the causes of
criminality and suggests appropriate remedies. It is difficult to give universally acceptable
definition of criminology. Different have been given by criminologists, legal experts and jurists
from time to time.

Definition

According to Sutherland, “Criminology is a branch of knowledge that studies the crime in the
form of an incident.”

According to M.A Illiot, “The Criminology is a scientific study of crime and its prevention.

According to Dr. Danny, “Criminology is that branch of Science of crime that is related with
causes, interpretation and prevention of crimes.”

The gist of the all above definition is criminology is that branch of knowledge that studies the
causes of crime and of becoming criminal, the methods of prevention of crime, its correction and
the way be which one reaches from to crime to criminal.

Nature of Criminology

Several times the question arises whether criminology is a science? No universal universal
answer to this question could have been given till today. Some criminologist treats it as a science
while others do not. Before thinking over the nature and form of criminology, it is proper to
consider what science is. Thus science has three characteristics—
 I. Systematic study of any subject
II. The capacity to establish relationship between causes and consequences.
III. The certainty and universality of its principles.

On the basis of above characteristics, Michael do not consider it as science and according to his
opinion it cannot be science in any way.

On the other hand, Donald R. Taft, consider it science but an undeveloped. In their opinion, the
criminology may become a science in future.

In the above context, if we think over the matter, it appears that,

I. Now, the criminology is seen in the new prospective. It is studied beyond traditional
methods. Now many new and modern methods and techniques are being used for
reaching from the point of crime to the criminal. Now the probabilities getting shape that
by using these methods and the conclusion derived there from will be stable, permanent
and universal.
II. Now the criminology is being studied systematically like a science i.e. first crime is
investigated, then the criminal is searched then the causes and remedies are searched.
This is good example of the scientific method of study of criminology.
III. For forming the opinion about the forms of crimes, the assistance is being taken from the
forensic science laboratories. In these laboratories, the conclusions are derived from the
chemical analysis of blood, semen, hair and compounds etc.

Now the methods of study of criminology are advancing towards science day by day. Now it can
be said that though criminology is not a science at present but there are possibilities of its
becoming science in future.

Scope of criminology

He suggests the following boundaries to be covered by criminology:

(1) It should study how crime is reported to official sources and acted upon officially.

(2) It should study the development of and changes in criminal laws as they relate to social,
economic, and political systems and to the social values in various societies.

(3) It should study the characteristics of criminals, like sex, class, marital condition, occupation,
employment, psychological characteristics, physique, pathological conditions of mind and body
etc.; and compare these with those of non-criminals. The effort here is to discover what kinds of
people do and do not get involved in crime.

(4) It should study the area and regional variation in the amount of crime as well as variation in
specific patterns of crime.
(5) It should attempt to shed light on the causative factors of crime and should formulate causal
theories.

(6) It should study the special manifestations of crime that are quite different from ordinary
crime, like organised crime, white-collar j crime, etc.

(7) It should study the relation of closely affiliated problems to crime, especially alcoholism,
drug abuse, prostitution, gambling and vagrancy. In many societies, most or some of these
problems may or may not be defined as crimes but these problems have a very close connection
with crime.

(8) It should study the effectiveness of law enforcement and of special laws in the control of
crime.

(9) It should study the effectiveness of the measures to treat offenders, like imprisonment,
probation, parole, institutional treatment and aftercare.

(10) It should study various efforts and experiments to prevent crime and delinquency.

Qs. Concept of Crime

Ans. Criminal law is a body of rules and statutes that defines conduct prohibited by the state
because it threatens and harms public safety and welfare and that establishes punishment to be
imposed for the commission of such acts. Criminal law differs from civil law, whose emphasis is
more on dispute resolution than in punishment.

The term criminal law generally refers to substantive criminal laws. Substantive criminal laws
define crimes and prescribe punishments. In contrast, Criminal Procedure describes the process
through which the criminal laws are enforced. For example, the law prohibiting murder is a
substantive criminal law. The manner in which state enforces this substantive law—through the
gathering of evidence and prosecution—is generally considered a procedural matter.

 Definition Of Crime: 

Many jurists have defined crime in their own ways some of which are as under:
Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it.

Stephen observed a crime is a violation of a right considered in reference to the evil tendency of

such violation as regards the community at large.

Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or

injurious to the public welfare.
IPC1860 Section 40 “crimes means An act which is prohibited under Indian Penal Code or
under special or local law as defined”

Fundamental Elements of Crime: There are four elements which go to constitute a crime, these
are:-

1. Human being
2. Mens rea or guilty intention
3. Actus reus or illegal act or omission
4. Injury to another human being

1). Human Being- The first element requires that the wrongful act must be committed by a
human being. In ancient times, when criminal law was largely dominated by the idea of
retribution, punishments were inflicted on animals also for the injury caused by them, for
example, a pig was burnt in Paris for having devoured a child, a horse was killed for having
kicked a man. But now, if an animal causes an injury we hold not the animal liable but its owner
liable for such injury.

So the first element of crime is a human being who- must be under the legal obligation to act in a
particular manner and should be a fit subject for awarding appropriate punishment.

Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes artificial
or juridical persons.

2). Mens Rea- The second important essential element of a crime is mens rea or evil intent or
guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every crime
requires a mental element and that is considered as the fundamental principle of criminal
liability. The basic requirement of the principle mens rea is that the accused must have been
aware of those elements in his act which make the crime with which he is charged.

There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which
means that, the guilty intention and guilty act together constitute a crime. It comes from the
maxim that no person can be punished in a proceeding of criminal nature unless it can be showed
that he had a guilty mind.

3). Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus.
In other words, some overt act or illegal omission must take place in pursuance of the guilty
intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the
first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human
conduct as the law seeks to prevent”.

4). Injury- The fourth requirement of a crime is injury to another person or to the society at
large. The injury should be illegally caused to any person in body, mind, reputation or property
as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to
any person in body, mind, reputation or property.

Stages of Crime

Not any act is punishable quickly. It has to pass from many stages. The following are the stages
of crime.

1). Intention—

The first stage of crime is intention. Not any act is done without intention. Every work has
feelings in the heart of man. It is called “Intention.” When any person intends to do crime, firstly
the feelings to do such act arises in his heart. For example, A plans to murder B here the
intention of A is to murder B.

It is mentionable here that only intention is not punishable, means the first stages of crime is not
considered punishable. Merely the idea of crime is not punishable

The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the
prosecution to prove the guilty mind of a person.

Exception

It has an exception under Indian penal Code 1860, section 120A and 120B, criminal conspiracy
is considered as punishable Crime. In it a planning to commit any crime is done. In it they have
their intention.

2). Preparation

The second stage of crime is preparation. As crime is not possible without intention, same cannot
as without preparation, a crime cannot be done. Preparation is a second stage of crime after
making intention. So it is said,” Collecting means to commit crime is preparation.”

Illustration—

A wants to murder B or want to theft in B’s house and for this intention. A arranges for poison or
collects weapon, it is preparation.

Preparation has not been made punishable because in most of the cases the prosecution has failed
to prove that the preparations in the question were made for the commission of the particular
crime.

Illustration—
If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter
enemy B, but does nothing more. A has not committed any offence as still he is at the stage of
preparation and it will be impossible for the prosecution to prove that A was carrying the loaded
pistol only for the purpose of killing B.

Preparation When Punishable (Excepion)-- Generally, preparation to commit any offence is

not punishable but in some exceptional cases preparation is punishable, following are some
examples of such exceptional circumstances-

I. Preparation to wage war against the Government - Section 122, IPC 1860;
Preparation to commit depredation on territories of a power at peace with
Government of India- Section 126, IPC 1860;
II. Preparation to commit dacoity- Section 399, IPC 1860;
III. Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255
and S. 257;
IV. Possessing counterfeit coins, false weight or measurement and forged documents. Mere
possession of these is a crime and no possessor can plead that he is still at the stage of
preparation- Sections 242, 243, 259, 266 and 474

Madhusudan Sen Gupta (A.I.R. 1958 kolkata) it was held decided that making gang for
dacoity is preparation and it is punishable crime.

3). Attempt—Attempt is the third stage of crime. It is an important stage and considered
punishable crime. It is attempt carries crime to completion. There are three essentials of an
attempt:-

I. Guilty intention to commit an offence;

II. Some act done towards the commission of the offence;
III. The act must fall short of the completed offence.

Aman kumar v/s State of Haryana (A.I.R. 2004, S.C) Supreme Court decided that attempt
means an act which if not prevented would have resulted in full consummation of act attempted.

Madan Lal v/s State of Jammu and Kashmir (A.I.R 1998 S.C) it was held that brushing
(rubbing) the Phallus (mall organ of generation) on the the womb of twelve years old girl child
was considered attempt to rape.

The following are considered punishable crime separately—

A. Attempting to fight against Indian Government section 121

B. Attempting to obtain gift etc. to save a criminal from punishment section 213
C. Attempting to excite someone to accept section 239
D. Attempt to murder 307
E. Attempt to killing human crime fully section 308
 F. Attempt to commit suicide section 309
G. Attempt to dacoity or robbery section 393, 397, 398
H. Attempt to kill any person during trespassing in a house or breaking house section 460

All the attempt except the above are considered punishable crime under section 511 of IPC.

Difference between preparation and attempt

a. Preparation is the second stage of crime whether attempt is third stage.

b. Preparation means collecting means to commit crime, whether attempt means endeavour
to commit crime.
c. Preparation is not crime in itself whether attempt is a crime in itself.
d. Preparation is not considered punishable crime in I.P.C. except some exceptions whether
attempt is considered punishable crime.

Mens Rea and Actus Reum

Means rea is an important element of crime. It is the element which makes a work crime.
Generally no work is considered crime unless it is done with mens rea. Mens rea means criminal
intention.

Illustration--A shoots a man behind bush considering him an animal and man dies. Though
death is caused but A will not be considered death man because for such death there is no mens
rea of A.

Actus reum facit reum nisi mens sit rea

The meaning of it is, that without intention , work doesnot make a person criminal. This maxim
comprises of two words—

A. Actus reum

B. mens rea

Actus reum means an act which is prohibited by law and mens rea means malicious act. When
the both mixes then it makes crime. It is mentionable that only mens rea does not constitute
crime. Work with means rea is necessary for crime.

R. v/s Liveret (1629) it was decided that any act cannot be considered crime without mens rea. In
this case the maid servant was killed by misunderstanding that she was considered theif. The
court did not consider it case of murder, because there was absence of mens rea.

Mens rea in Indian Penal code

The position of mens rea in Indian penal Code is different from Anglo law. In Indian Penal
Code, the principle of mens rea is not adopted rigidly. Here mens rea is not necessary for crime.
There are some acts, which are considered crime without mens rea. In India, such acts are
considered crime which are prohibited by law. It is due to strict liability principle. According to
his principle, such acts are considered crime. Which are against law whether there is mens rea or
not.

But it does not mean that there is no place of mens rea in Indian Penal Code. In Indian Penal
Code, mens rea is not adopted directly. Some words are added with every crime, which shows
mens rea as—

a. Voluntarily
b. Intentionally
c. Fraudulently
d. Dishonestly
e. Corruptly
f. Malignantly
g. Want only
h. Rashly
i. Negligence

R. Hariprasad v/s State (A.I.R. 1951 S.C) Supreme Court considered mens rea as an essential
element of crime.

State of Maharashtra v/s Mayor Hans George (A.I.R. 1965 S.C) Supreme Court said that,
unless it is declined to consider mens rea as an essential element of crime, criminal cannot be
considered guilty of crime. If has heart is not malicious.

Qs. General Exceptions; Mistake of Fact (section 76 and 79) Necessity (section 81)
Unsoundness of mind (section 84) Intoxication (section 85 and 86) Right of Private Defence
(section 96-106)

The Criminal law covers various punishments which vary from case to case. But it is not always
necessary that a person gets punished for a crime which he/she had committed. The Indian Penal
Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”. Section 76 to
106 covers these defences which are based on the presumption that a person is not liable for the
crime committed.  These defences depend upon the circumstances prevailing at that point of
time, mens rea of person and reasonability of action of that accused.

General Exceptions

1). Mistake
There are two type of mistakes described in two section—

a. Mistake of law
b. Mistake of fact

(A). Mistake of fact

First type of mistake is mistake of law. Section 76 and 79 provides excuse for the work done
under mistake of fact. This arrangement is based upon the maxim, ignorantia facit excusat means
ignorance of fact is a good excuse. Any person can defind himself from the criminal liability by
taking support of ignorance of fact. But the following are the necessary for it-

a) The act done bona fidely

b) The act is attached to law or not.

Illustration- ‘A’ is an officer of court. He is ordered to arrest ‘B’ by court. ‘A’ investigates
about ‘B’ and believes bonafidely that ‘C’ is ‘B’ and arrests ‘C’. here ‘A’ does not commit any
offence because-

a) ‘A’ is ordered to arrest ‘B’ by the court.

b) ‘A’ investigates about ‘B’ bonafidely.
c) ‘A’ arrest ‘C’ after belief in good faith that he is ‘B’.

Here it is mistake of fact which is excusable. In this relation “Gopalia Kalia” [(1923)26
Mumbai L.R. 138] is a good case. In this, a police officer comes to Mumbai to arrest a person.
He have warrant of arrest. He investigates bonafidely about the person to whom he is to arrest
and believing bonafidely that he is the person, who is to be arrested and arrests him. The
complaintant complained against the police officer of wrongful confinement. The police officer
was given benefit of profit of protection under section 76 because the cats done by him were
done in good faith and mistake of fact.

Mistake means not only oblivion. It is the mistake which occuse by coincidence [Sand Ford V/s
Bali (1899) 65 L.J.O.B. 73]

For getting interest of such mistake, the mental situation of accused is also important (Jaswant
Rai Manik Lal V/s State of Mumbai, A.I.R. 1956, S.C. 575).

(B) Mistake of law

second type of mistake is mistake of law. It is not excusable viz. no one can save himself by the
support of the mistake of law.

This is based upon the maxim “Ignorantia Juris non excusat: Ignorance of law is no excuse.”
 The reason is clear that if mistake of law is made then every accuse will try to save himself from
crime by pretending of mistake of law. Lord Edinberra said that, “if mistake of law is permitted
to consider base of in the severe case then it cannot be said that the pretend of ignorance shall be
extended to hoe much limits.”

In case of Fisher [(1891) 14, Madras 342] it was said that if any accuse violates law of the
country carelessly or unknowingly, then he will have to bear the results the mistake.

It happens sometimes that accuse is in the such situations that he cannot know about the newly
made laws. In such conditions, what will happen to such persons will he get benefit of mistake of
law.

In State of Maharashtra V/s M.H. George (1965) Cr. Law Journal 641 S.C.) it was answered
negatively.

The difference between two are-

i. Ignorance of fact is a good excuse but ignorance of law is no excuse.

ii. The section 76 & 79makes provisions for mistake of fact, but not for mistake of law.
iii. The acts done in furtherance of mistake of fact are not liable but acts done in mistake for
law, the liability occurs.

1) Unsoundness of mind (section 84)

Ans- Section 84 of the IPC focus on the intention to give or not to give immunity from criminal
liability to insane persons.

Section 84- nothing is offence which is done by a person who, at the time of doing it, by reason
of unsoundness of mind, is incapable of knowing the nature of act, or that he is doing , what is
either wrong or contrary to law. The following are the essential elements of this defence-

i. He should be unsound mind at time of committing such crime.

ii. He, by reason of, unsound mind, must not know the nature of his act, or he must not
know that his act is wrong or contrary to law.

McNaughton’s case- in 1843, the accused killed private secretary of British Prime Minister. He
pleaded sanity and the house of Lords acquitted him of the murder.

The farmers of code wished to give a very wide scope to the unstable mind while recognizing the
non compos menis (not of sound mind) concept as a defence under the Indian Criminal Law.

Ans- Intoxication (section 85 and 86)-

Section 85- nothing is an offence which is done by a person who, at the time of doing it is by
reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law provided that the thing which intoxicated him was administered
to him without his knowledge or against his will. The following are the essential elements of this
defence-

i. The accused must be under the state of intoxication at the time of doing an act,
ii. He, by reason of intoxication, must not know the nature of his act, or he must not know
that his act is wrong or contrary to law.
iii. The intoxication is given to him without his knowledge or against his will.

In Jethuram V/s State, 1960- the intoxication is without one’s knowledge if he does not know
about the existence of the intoxicant, such as where someone mixes an intoxicant in the milk.

In Dedekhula Khabala Sahib V/s State of A.P. (1996)- it was held that voluntary drunkness is
no defence and thus the accused was guilty under section 304, IPC.

Qs- Right of Private Defence (section 96-106)

Ans- it is a general principle of criminal law that no one can body of property of any other
person. If he does so, it is considered punishable crime. But section 96 to 106 of IPC 1860 in
which no act is offence. If it done for private defence because every person has right to defend
himself.

It is said in section 96 of IPC. 1860 that, “nothing is an offence which is done in the exercise of
the right of private defence.” The right of private defence is of two types-

a) Right of private defence of body, and

b) Right of private defence of property.

It is said in section 97 of IPC that- “every person has the right that he-

i. Has the right of private defence in relation to his own body and body of others;
ii. He can protect the property either movable and immovable from the offence comes in the
definition of criminal misconduct or it is attempt of theft, robbery, mischief etc.

Thus section 96 and 97 provide right of private defence to every person.

But the charge of providing situations for use of right of private defence falls upon the accused
viz. it falls upon the person. Who wants to get benefit from it [Rizan V/s State of Chatisgarh,
A.I.R. 2003 S.C. 976].

The right of private defence can be cleared by many illustrations. ‘A’ kills his father by shooting
considering that his father was cutting the throat of his mother. It was decided that ‘A’ had the
right to protect his mother’s body. [Rose (1884) 15, Crocks 540].
‘A’ trespasses in ‘B’s property. ‘B’ evicts ‘A’ from his property and throws all the things used in
trespassing. It was considered an act to defend ‘B’ himself.

1 The right of private defence related to person

Section 99 to 102 of I.P.C. provides about the beginning, limitation, expansion of private defence
of person.

Beginning—

According to section 102 of I.P.C, right of private defence starts at the moment when the
reasonable possibility of danger of body by attempt or warning creates, whether the offence is
done or not.

Limitations—

Section 99 of I.P.C describes about the situations in which the right of private defence is not
available. The situations are followings—

a. If any public officer does work which is not justifiable but it is in good faith and it does
not cause danger of death or severe wound.
b. When the danger related to body or property can be removed with the help of public
officer and he has the sufficient time in getting such help.
c. The right of private defence can be used within the limits it is necessary.

Illustration—

B tries forcefully in trespassing in the land possessed by A. A attack upon B to stop him and it
causes B is death. It was considered excess use of the right of private defence.

Akaram Bheru Kotwal v/s State of Maharashtra A.I.R. 1977 S.C Thus where there is
fighting between two parties, these the right of private is not available to any party.

Rajesh v/s Dharmveer A.I.R 1977 S.C the right of private defence cannot be used as the spirit
of revenge.

Expansion till resulting death

Section 100 of I.P.C. is very important. In it, some conditions are described in which for the
private defence, death is caused to any person these situations are following—

a. When such attack is done which creates the possibility of death.

b. When such attack is done which result possibility of extreme hurt.
c. When attack is done for the intention of rape.
d. When an act is done against nature for the intention of fulfilling of sexual desire.
e. When attack is done for the intention of kidnapping.
 f. When wrongful confinement is done in such conditions that there was no possibility of
getting help of public officer.

2 Right of private defence of property

Section 103 to 106 of I.P.C. 1860 provides about the starting, limitation and expansion of private
defence.

Beginning—

According to section 105 of code, right of private defence of property begins at the time when
the reasonable possibility of danger of property. This right remains—

a. Till the help of pubic officer in case of theft or of property.

b. Till the remaining of serious injury of murder in case of looting.
c. Till the remaining of trespass in case of criminal trespass.
d. Till the remaining of trespass in case of house trespassing.

Limitations-

Limitations are the same as told in section 99 these are describe above.

Expansion till death

Section 103 describes the conditions in which the right of private defence of property extends to
the death. These conditions are following—

a. In case of looting.
b. In case of house trespassing in night.
c. In case of mischief of tant, boat etc. used for the protection of property or human abode.
d. In case, where if the right of private defence will not be used in case of theft, mischief or
house trespassing then there is possibility of death or extreme damage.

Extension till causing damage to the Innocents

The question raise that can damage be done to the innocent person in using right of private
defence. It is answered in section 106 according to section 106—

“ in cases where there is possibility of death reasonably the person who defends must be in the
condition to use the right of private defence that he cannot use this right without the risk of
damage of person then the right of private defence extends to the limit of taking risks”

Illustration—A group of person attack upon A and tries to kill him. He cannot use the right
private defence without firing shots. he cannot fire shot without taking risk of damage of little
children. If he harms to any child by shooting, then it will not a crime.
Qs Classification of crime; Organised Crime, Socio-Economic Crimes and White Collar
Crime.

Organised Crime

The core organized crime activity is the supply of illegal goods and services to countless
numbers of citizen customers. It is also deeply involved in legitimate business and in labour
unions. It employs illegitimate methods-monopolization, terrorism, extortion and tax-evasion to
drive out or control lawful ownership and leadership, and to extract illegal profits from the
public. Organized crime also corrupts public officials to avert governmental interference and is
becoming increasingly sophisticated. In India, in addition to its traditional spheres of activities
which included extortion, seeking protection money, contract killing, boot-legging, gambling,
prostitution and smuggling, now added is drug trafficking, illicit arms trading, money laundering,
transporting illegitimate activities based essentially on its readiness to use brute force and
violence. By corrupting public officials and thereby monopolizing or near monopolizing,
organized crime aims to secure for itself power. Later, the money and power it begets are used to
infiltrate legitimate business and several other related activities.

Meaning of organized crime

Organised crime is defined as “those involved, normally working with others, in continuing
serious criminal activities for substantial profit, elsewhere”. Organised criminals that work
together for the duration of a particular criminal activity or activities are what we call an
organised crime group. 

Organised crime group structures vary. Successful organised crime groups often consist of a
durable core of key individuals. Around them, there’s a cluster of subordinates, specialists, and
other more transient members, plus an extended network of disposable associates. 

Many groups are in practice loose networks of criminals that come together for the duration of a
criminal activity, acting in different roles depending on their skills and expertise. Collaboration
is reinforced by shared experiences (such as prison), or recommendation from trusted
individuals. Others are bonded by family or ethnic ties – some ‘crime families’ are precisely
that. 

Organised criminals make use of specialists who provide a service, sometimes to a range of
crime gangs. Services include transport, money laundering, debt enforcement, or the provision of
false documentation (identity crime underpins a wide variety of organised criminal

Characteristics Of Organised Crime

Characteristics of the Criminal Group

Continuity: The criminal group operates beyond the life time of individual members and is
structured to survive changes in lead ship.

Structure: The criminal group is structured as a collection of hierarchically arranged

interdependent offices devoted to the Accomplishment of a particular function. It may be highly
structured or may be rather fluid. It is, however, distinguishable as the ranks are based on power
and authority.

Membership: The membership in the core criminal group is restricted and based on common
traits such as ethnicity, criminal background or common interests. The potential members are
subjected to a lot of scrutiny and required to prove their worth and loyalty to the criminal group.
The rules of membership include secrecy, a willingness to commit any act for the group and
intent to protect the group. In return for loyalty, the member of a criminal group receives
economic benefits, certain prestige, and protection from law enforcement.

Criminality: The criminal group relies on continuing criminal activity to generate income. Thus,
continuing criminal conspiracy is inherent in organized crime. Some activities such As supplying
illegal goods and services.

Violence: Violence and the threat of violence are an integral part of a criminal group. The
violence or threat of it is used against the members of the group to keep them in line as also
against the outsiders to protect the economic interests of the group. Members are expected to
commit, condone or authorize violent acts.

Power/Profit Goal: The members of the criminal group aim at maximizing the group’s profits.
The political power is achieved through the corruption of public officials, including legislators
and political executive. The criminal group maintains power through its association with the
“protectors” who defend the group and its profits. Types of Organised Crime

Drug Abuse and Drug Trafficking

It is perhaps the most serious organised crime affecting the country and is truly transnational in
character. India is geographically situated between the countries of Golden Triangle and Golden
Crescent and is a transit point for narcotic drugs produced in these regions to the West. India also
produces a considerable amount of licit opium, part of which also finds place in the illicit market
in different forms. Illicit drug trade in India centres around five major substances, namely,
heroin, hashish, opium, cannibas and methaqualone. Seizures of cocaine, amphetamine, and LSD
are not unknown but are insignificant and rare.

Smuggling
Smuggling, which consists of clandenstine operations leading to unrecorded trade, is another
major economic offence. The volume of smuggling depends on the nature of fiscal policies
pursued by the Government. The nature of smuggled items and the quantum thereof is also
determined by the prevailing fiscal policies. India has a vast coast line of about 7,500 kms and
open borders with Nepal and Bhutan and is prone to large scale smuggling of contraband and
other consumable items. Though it is not possible to quantify the value of contraband goods
smuggled into this country, it is possible to have some idea of the extent of smuggling from the
value of contraband seized, even though they may constitute a very small proportion of the actual
smuggling.

Money Laundering & Hawala

Money laundering means conversion of illegal and ill-gotten money into seemingly legal money
so that it can be integrated into the legitimate economy. Proceeds of drug related crimes are an
important source of money laundering world over. Besides, tax evasion and violation of
exchange regulations play an important role in merging this ill-gotten money with tax evaded
income so as to obscure its origin. This aim is generally achieved via the intricate steps of
placement, layering and integration so that the money so integrated in the legitimate economy
can be freely used by the offenders without any fear of detection. Money laundering poses a
serious threat world over, not only to the only to the criminal justice systems of the countries but
also to their sovereignty

Terrorism & Narco-Terrorism

Terrorism is a serious problem which India is facing. Conceptually, terrorism does not fall in the
category of organised crime, as the dominant motive behind terrorism is political and/or
ideological and not the acquisition of money-power. The Indian experience, however, shows that
the criminals are perpetrating all kinds of crimes, such as killings, rapes, kidnappings, gun-
running and drug trafficking, under the umbrella of terrorist organisations.

Contract Killings

The offence of murder is punishable under section 302 IPC by life imprisonment or death
sentence. Conviction rate in murder cases is about 38%. The chance of detection in contract
killings is quite low. The method adopted in contract killings is by engaging a professional gang
for a monetary consideration.

Kidnapping for Ransom

Kidnapping for ransom is a highly organised crime in urban conglomerates. There are several
local as well as inter-State gangs involved in it as the financial rewards are immense vis-a-vis the
labour and risk involved.

Illegal Immigration

A large number of Indians are working abroad, particularly in the Gulf region. Young people
want to move to foreign countries for lucrative jobs. Large scale migration is fostered by the high
rate of unemployment in the country and higher wage levels in foreign lands. As it is not easy for
the aspirants to obtain valid travel documents and jobs abroad, they fall into the trap of
unscrupulous travel agents and employment agencies.

Prostitution

Trading in sex and girl-running is a very profitable business in which the underworld plays an
important part. Flesh trade has been flourishing in India in various places and in different forms.
The underworld is closely connected with brothels and call girl rackets, making plenty of money
through this activity. They supply young girls to brothels in different parts of the country,
shuttling them to and from the city to minimise the risk of their being rescued. According to a
study conducted by the Indian Health Organisation, there are over 1,000,000 prostitutes in
Bombay and an equal number in Calcutta. Delhi and Pune have an estimated 40,000 each.

Legal Position In India On Organized Crime

Organized crime has always existed in India in some form or another. It has, however, assumed
its virulent form in modern times due to several socio-economic and political factors and
advances in science and technology. Even though rural India is not immune from it, it is
essentially an urban phenomenon.

Criminal Conspiracy Sec. 120-A of the Indian Penal Code defines criminal conspiracy as:

“When two or more persons agree to do, or cause to be done-

(1) An illegal act, or

(2) An Act which is not illegal by illegal means. Such an agreement is designated as criminal
conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof merely incidental to that object”.

Section 120-B of the India Penal Code provides for punishment for criminal conspiracy.

Dacoity and Related Offences

Dacoity is one of the oldest forms of crimes in India and is committed purely for the purpose of
looting or extortion. Section 391 of the Penal Code defines dacoity as:

“When five or more persons conjointly commit or attempt to commit a robbery, or where the
whole number of Persons conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt amount to five or more, every person so
committing, attempting or aiding is said to commit ‘dacoity’.”In other words, if five or more
persons commit the offence of robbery, they commit ‘dacoity’.

Dacoity is punishable with imprisonment for life or rigorous imprisonment up to10 years and
five months (section 395).

I. criminalists preparation to commit dacoity (section 399)

II. Assembly for the purpose of committing dacoity (section 402).
III. Section 400 of the Code criminalizes the act of belonging to a ‘gang’ of persons
associated for the purpose of habitually committing dacoities.
IV. Kidnapping for ransom, the parliament inserted Section 364-A in the India Penal”.

Law on Gangsters

There is no central legislation to suppress ‘gang activity’ having countrywide applicability. The
State of Uttar Pradesh, most populous and politically most powerful in enacted Uttar Pradesh
Gangsters and Anti-Social Activities (Prevention) Act,1986, which is applicable in that State
only.

The gang has been defined as a group of persons, who, singly or collectively, indulge in anti-
national activities by violence or threat of violence for gaining undue political, economic or
physical advantages and includes, offences against the body, boot legging, forcible possession of
immovable property, creating communal disturbances, obstructing public servants in the
discharge of their duties, kidnapping for ransom, diverting an aircraft or public transport vehicle
from its schedule path, etc.

A gangster is punishable with minimum imprisonment of two years extendable up to 10 years

(sec. 3). The rules of evidence have been modified and certain statutory presumptions can be
raised against the gangsters by the trial court. Provision has also been made for the protection of
witnesses. The trial may be held in-camera on the request of public prosecutor. The name and
address of a witness can be omitted in the court records, if the Court so desires. The property of
the gangster can be attached by the District Magistrate if satisfied that it was acquired through
criminal activity. This Act has a wide canvass and purports to cover large areas of organized
criminal activity.

Other Laws

There are several other central statutes which deal with specific facets of organized crime. Some
of them are:

I. The Customs Act,

II. The Narcotics Drugs 1962
III. Psychotropic Substances Act, 1884; the
IV. Immoral Traffic (Prevention) Act, 1956
 V. Foreign Exchange Regulation Act, 1973
VI. The Public Gambling Act, 1867 etc.
VII. Besides, the State Government has also legislated on subjects like excise, Prohibition and
gambling etc.

Qs. Socio-Economic Crimes

Ans. A number of offences have been prevailing in the society for a long time. Offences are the
illegal actions resulting from the breach of law. These offences can be classified into two main
categories namely, (i) conventional offences and (ii) non- conventional offences. Conventional
Offences consist of Mens Rea. For e.g., murder, theft, rape etc. Non- Conventional Offences do
not contain Mens Rea. White collar crimes, socio economic offences, organised crimes, etc. are a
few examples of non-conventional crime. Traditional crimes like theft, robbery, rape, murder etc.
were more common and were dealt with the general law of crimes. But Socio economic crimes
as its name suggest are social crimes and affects the health and morals of the public and
economic crimes consist of those offences that affect the economy of the country as a whole.
These are punishable under the special laws of crimes.

Meaning of socio-economic crime

Socio- economic crimes are many a time used as a synonym for white collar crimes. But
extensive study states that the former is a broader term. White collar crimes are the crimes
committed by people belonging to upper caste and rich backgrounds. Whereas a socio- economic
offence can be committed by anybody. For e.g., a big wealthy entrepreneur or a multi-national
company, guilty for tax evasion and a middle class pensioner depositing false return. Both are
examples of socio-economic crimes, but only the former can be considered as a white collar
crime.

Illustrations

1. ‘A’ is a seller. In his account books he shows his sales lesser than they actually were so that
his income also becomes lesser than it actually is. By this he is trying to pay lesser taxes. He is
committing the crime of tax evasion.

2. ‘P’ and ‘Q’ works in the same company. While dealing which goods and resources and
deliberately mess with the data so they can keep those goods dishonestly for their own use. Both
of them are responsible for causing misappropriation of goods, which is a socio-economic crime.

3. ‘P’ is a politician. His son ‘D’ is an ill-mannered person who causes trouble all the time which
results as him being in jail. But ‘P’ always gets him out by using his power. This is an illegal use
of this position and also a crime.

In Mak Data Pvt. Ltd. v. CIT petitioner concealed his income in order to evade taxes. After a
show cause notice was served to him he decided to surrender a sum to avoid litigation. It was
held by the SC that the sense of surrender of sum was made after the detection was made, if the
intention of the appellant was good, he would have filed a return inclusive of the sum which is
surrendered later after the assessment proceeding.

Categories of Socio- economic Offence

The offenses that can be categorised as socio-economic offences in the country are as follows-

1. Actions calculated and executed in order to obstruct or prevent the economic development of
the country and also its economic health.

2. Evasion of taxes

3. Misuse of position and power by the public servants which is most likely to up as corruption.

4. All the offences that include breach of contract and delivery of good not up to the
specifications as promised.

5. All activities related to black marketing and hoarding.

6. The activities involving adulteration of foods and drugs.

7. Misappropriation and stealing of public property and funds.

8. The activities relating to trafficking of licenses, permits etc.

Features 

Motive: Unlike traditional offences here the motive of committing the crime is excessive greed
or desire for wealth.

Emotion: Where most crimes are done due emotional reasons, on the contrary these types of
offences contain no emotional background or relation between the victim and the criminal.

Target Victim: Mostly the victim in such offenses is the state or a sector of people most likely
those who are consumer of certain goods or services, a shareholder or having any other securities
etc.

Mode of operation: The main element for commencement of such crime is fraud and not force

Mental Element: such offences are usually done deliberately and willfully

Though the main feature of such offences is they that are not done particularly against one
person, it affects the country at large and hence special efforts are applied in such offences. For
e.g., in case of theft or assault to a person, the only person benefited by the punishment given to
the offender is the one who got assaulted because the act is physical and hence it creates
individual and social vengeance. But in these type of offences the for eg., if some commodities
are hoarded or adulterated then though there will be a ‘victim’ but also the act of the wrongdoer
is capable of harming a large part of the society. Thus it is most likely and injury to the whole
society.

Causes of Socio-economic offences

In our country the few main causes of emergence of socio-economic offences are:

1. Industrial Revolution: The evolution from agricultural based country to industrialisation

bought changes in the country which led to offences changing its paces from traditional to these
new ones.

2. World War II: Post war conditions of the countries were pathetic which led to changes in the
normal working of the society. Hence new practices gave birth to new offences as well.

3. Business: when new businesses started to emerged in the country it created to the sense of
extreme competitiveness among them. Every one desired to one- up each other by any means
necessary.

4. Technology: One of the aspects which changed our country for better is also responsible for
causing such offences. The emergence of technology and scientific developments led to the
decrease in belief of the almighty.

5. Lack of Morals: As the fear for the ultimate judgment or the world beyond all humanly things
started to disappear, people’s morals and ethics started to decline. This resulted in the increase in
frauds and also greed and lust for materialistic happiness.

6. Laissez- Faire: the state decided to leave things as they were and lack of public resentment
resulted in grave consequences which is now noticeable in our country. But with proper study
and attention these crimes can be controlled in the country.

Laws dealing with socio-economic offences

For punishing the criminals relating to socio-economic offences a number of Acts ere framed.
Also these Acts are established for keeping the regular activities of trade, contracts etc., could
take place without or with least number of malpractices. Some of these Acts are:

1. The Drugs And Cosmetic Act, 1940

2. The Prevention of Food Adulteration Act, 1954

3. The Foreign Exchange Regulation Act, 1947

4. The Wealth Tax Act, 1957

5. The Income- Tax Act, 1961

6. The Essential Commodities Act, 1955

7. The Customs Act, 1962

8. The Prevention of Corruption Act, 1988 etc.

Qs: White Collar Crime

Ans: Normally, White Collar Crimes are related with economic benefits. The main cause of such
crime is to earn money by hook or crook, whether crime is to be committed for it. White Collar
Crime has become a symptom of prosperity. Bribery, corruption, black marketing, smuggling,
adulteration and tax evasion are some these crimes. Such crimes are normally committed by
educated, prosperous and reputed persons.

Definition

It is very difficult to give any universally accepted definition of white collar crime. Various
criminologists have been given there definitions in their own way. Some of these definitions
areas follow-

According to Walter C. Reckless, “white collar crime represents the offences of business man
who are in a position to determine the policy and activities of business.”

According to Paul Tappan, “White collar crime is a special type of solitary professional
criminality. It involves real violation of criminal law systematically or repeatedly committed by
business, professional and clerical workers, in addition to their occupation.”

In the above definition, the following are the main features of white collar crimes-

a) The white collar crimes are committed by reputed persons of upper class;
b) They are committed during their profession or business;
c) In these crimes, there is violation of any of the criminal laws; and
d) Their objective is not need but greed i.e. to earn or to accumulate wealth.

Causes of White Collar Crimes

There is not a single reason but many reasons of white collar crimes. Normally, the following are
the main causes of these crimes-

(a).Tendency to Selfishness

The first cause of white collar crime is the tendency of selfishness of a man. Man of today wants
to earn more and more wealth by hook or crook. For this, he gets involved in smuggling,
adulteration, tax evasion, bribery, black marketing, hoarding etc. such types of crimes committed
by person of upper class. For this, the power and position is misused. The desire to get social
reputation is also one of the causes for commitment of such crimes.
(b). Capitalist System

The second cause of these crimes is industrialization capitalist system. Under the capitalist
system industralization capital is concentrated into the hands of few persons and they try to earn
wealth by legal or illegal means. Such persons form a pressure group by which putting pressure
on political leaders make them such so that they didi not enact the law to check such crimes.

(c).Weakness in Law

The third cause of white collar crime is weakness and complications of laws. The laws related to
such crimes are weak and complicated so that it cannot trap the criminal. Even if he gets into it,
he saves himself anyhow. The persons committed such crimes are educated, prosperous and well
versed in la\w.

(d). Lack of Proper Punishment

The fourth reason of these crimes is lack of proper punishment. There are many white collar
crimes for which there is no punishment of imprisonment but there is also punishment of fine, so
that the criminal is not under any fear. In many cases, the criminal is released on admonition or
probation which results in increase in such crimes.

(e). Apathy of Public

The fifth reason of these crimes is the apathy of public towards such crimes. Society does not
take any step against such persons. The public is not interested in checking up of such crimes.
With the result, that there is no terror of society in the conscience of criminals.

(f). Lack of Legal Awareness

One of the reason of white collar crime is lack of legal awareness among the public. Most of the
public are not aware with law. They do not understand as to white collar crimes and legal action
to be taken against persons who commit them. Many times, even the first information report
(F.I.R.) is not get recorded. Under such conditions, the criminals committed such crimes
unhesitatingly.

(g). Secrecy

White collar crimes are of very secret nature. They are committed very cleverly so that the
people are not aware of it. Bribery, hoarding, tax evasion are some of the crimes which are
committed secretly. This is the reason that the public cannot take any action against persons who
commit such crimes.

(h) Political Protection

The eighth important reason of such crimes is political protection. In majority of cases, such
criminals get political protection. When they are under such protection, no action can be taken
against them. The white collar criminals help the political leaders economically from time to
time. They contribute ample money for election. Thus if they get political protection, then it
should not be a matter of surprise.

(i). Partial Conduct and Policy

The last reason of white collar crime is partial policy of legislature, executive and judiciary. The
white collar criminals are generally respected persons and therefore, no street laws are enacted
against them by the legislature. The executive does not implement these laws strictly and the
judiciary does not punish them severely.

Methods to Check White Collar Crimes

It is very necessary to impose checks on white collar crimes. For this, the following measures
can be taken:

(1). Severe Punishment

There should be a provision of severe punishment in the law of these crimes. Such punishment
should be:

a) Severe;
b) Minimum; and
c) In larger quantum

So that the criminals become terrified and they do not step towards these crimes. The
criminologists are of the view that the white collar crimes can be cheked with minimum severe
punishment.

(2). Clear Definition

To check white collar crimes, these crimes should be clearly defined, today it Is not clear as to
what are white collar crimes? With the result, that most of the criminals, run away from the trap.
Therefore, it is expected that:

a) The white collar crimes should be clearly defined, and

b) Most of the crimes should be included in white collar crimes and reasons should stated
clearly for such inclusion.

(3). Speedy Trials

Speedy trails is also necessary for white collar crimes. Late punishment becomes meaningless.
By speedy trials and punishment, terror may be created in the society for these crimes. For this,
it is proposed that-

a) Special courts should be constituted;

b) Determination of the time limit for trial of the case;
c) Special public prosecutors should be appointed.

(4). Economic Punishment

There should be imposed fine along with severe punishment for these crimes so that the criminal
may not dare to commit such crimes second time. The property of criminal should be forfeited in
case of such crimes.

(5). Public Awareness

There should be public awareness for these crimes. Today, most of the persons are unaware with
these crimes and the action to be taken in case of their commitment. Under such conditions, such
criminals do not have any fear either of society or law.

The apathy of public should be broken down. For this, literature should be prepared in concise
and simple language and distributed. By means of legal awareness camps, such crimes may be
published and brought to the knowledge of the public.

(6). There Should be Check over Political Protection

There should be check over the political protection of such criminals. The main cause of increase
of such crimes is the political protection owing to political protection, these criminals remain
unterrified. For this:

a) There should be a code of conduct for political leaders;

b) The political protection of such criminals should be declared as disqualification for
election for political leaders;
c) No contribution, donation and assistance should be taken for funds of political parties
from these criminals; and
d) The white collar criminals should be declared as disqualified for political elections.
 Unit- II

Qs: Pre-classical and Classical

Ans: there are many branches of criminology schools and groups of thinkers. The origin or
evolution of these branches has taken place as per the theories developed by criminologists.

Pre-classical School

It is the oldest school of criminology. Acquinas is considered as father of this school. This
school developed during the middle period of 17th and 18th century. This school is divided into
two parts:

(i). Devil-based school and

(ii). Free-will based school.

Devil based school is the oldest school. The school originated at the time when the spiritual
thinking was at its extreme point. At that time, the power of God was considered as supreme.
The view prevalent among the masses was that all deeds of a man are controlled by power of
God. The same notion was prevalent about crimes. The general acceptance was that man
commits crime under the influence of unknown power of devil (ghosts, devils, giants etc.) i.e. the
main causes of crimes were the influence of powers of devil. The devilish powers excited man to
commit crime.

Thomas Acquinas, Hobbs, Lock, August Comte were considered as propounders of this theory.
According to them, a man commits crime when the devilish power enters the man and controls
him. A man does not commit any crime voluntarily and he does not like to commit it. It is the
external devilish power which compels a man to commit crime.

To be freed from devilish power, people generally took resort to Hawan, Mnatra, Sacrifice, fire
test etc. at that time, even the punishment was not certain for the crimes, punishment was
considered as the result of evil acts or the anger of God.

At that time, the school of free-will also came into existence. Some thinkers consider it as part of
classical school.

Classical school

Bakaria is considered as the father of classical school. Later on, Blackstone, Bentham, Romile,
Robert Peel, Fuer Batch also became supporters of this school.

The main or central point of this school is the free-will of a man. According to this, whatever a
man does, he does according to his free-will. In every work, he thinks about his benefit-cost,
good-bad, happiness and misery whatever he thinks good, he acts. The crime is also a result of it.
If he gets happiness from doing of any act, he does it even if it is criminal act. The main root of
the school of free-will is the materialistic philosophy.

The utilitarian theory of Bentham is consistent with this theory. According to utilitarian theory,
every man does his work according to utility. He evaluates utility in terms of happiness and
sorrow. Whether it may be a crime.

The main characteristics of this school are as follow:

1) The root cause of crimes is the materialistic philosophy. A man does that act which gives
him maximum happiness whether the act may be of criminal nature.
2) The determination of happiness and sorrow is made by the man himself. He is considered
as the good judge of happiness and sorrow.
3) The whole society is affected by crime.
4) The objective of punishment is not the revenge of crime but the prevention of crime.
5) The punishment must be certain.
6) The immediate consideration of crimes is expected.
7) There should be a system of similar punishments for similar crimes.
8) The law should be simple, clear and understandable language.
9) There should be codification of laws.
10) The death penalty and jury system must be abolished.
11) The reformatory theory should be given precedence in jails.
12) The punishment must be consistent with the crime.

Criticism

Many cities have criticized the classical school. The cities have to say that

a) The causes of crimes is not only the desire for happiness. Many times, an aggrieved or
person under pain commits crime.
b) The crime does not depend upon the free will of a person. Many times, the
circumstances compel a man to commit crime.
c) It is not just to create system of similar punishment for similar crime. The quantum of
punishment should be determined according to the age, mental condition, conduct,
economic condition of criminal.

Contribution in the Development of Criminal Law

Despite criticism of classical school, it has contributed in the development of criminal law. The
materialistic philosophy and the utilitarianism have inspired the law makers to make such law
which may lead to greatest good of the greatest number.
The crime had been considered as public wrong and efforts were made to devise remedies for it.
The codification of law was started. The new concept of reformation of criminal got strength.
Supervision condemnation, pasole are the results of this reformative approach.

Qs: positive school

Ans: Lombroso occupies an important place in criminology. He considered as the father of

positive school of criminology. Lombroso was an Italian and served as a doctor in the Italian
field army and as Professor of medical science in Turun University.

Lombroso while adopting objective and empirical system tried to trace causes of crime in the
body and mind of a man. He studied patients and concluded that the physical constitution of
people committing crime have greater capacity to tolerate pain and torture as compared to that i
normal person and, therefore, they did not get frightened from punishment.

Lombroso has to say that for detecting the criminal instincts in a man, his personality should be
studied. This school of thought is known as Italian School of thought.

Types of Criminals

Lombroso has mentioned three types of criminals:

a) Born criminals or atavists

b) Insane criminals; and
c) Criminoids.

(a). Born Criminals or atavists

Lombroso was of the view that there are some persons who are born criminals, i.e., the
criminality is hereditary in them. It is very difficult to check or prevent criminality in them
because they are not affected by circumstances. It is impossible to reform them.

Lombroso while analysing their physical features has said that these people normally are
sufferers of mirgi. They are self praising and of boasting nature. Their conduct and behaviour is
incorteous and terrible. Some irremovable spots are found on their body.

The characteristics of hereditary or born criminals are: their skull is round like a tower, law is
long enlarged towards below or suppressed inside, nose is flat and wide, ears are long and thick,
brain is a triangle of the shape of a bull, undeveloped teeth, thick and black hair, lips having cuts
and the body is without hair or with excessive hair.

(b). Insane Criminals

According to Lombroso, the second type of criminals are those who are insane. They have no
mental capacity to distinguish between right and wrong and to understand the consequences of
the acts. This is the reason that they are not much sensitive to crimes.

.Criminoids

In this category, such persons are placed which have defective physical constitution. The
physical constitution has been mentioned above. Because of such physical conditions, they suffer
from inferiority complex and induced towards crime.

While mentioning the causes of crime, Lombroso has said that in this respect it is desired to think
over biological nature of human behaviour.

His Thoughts on Punishment

Lombroso way of view that punishment is very necessary for the safety of society and prevention
of crime. He was supporter of death punishment in case of serious crimes. The first objective of
punishment should be the security of society and the second is the reformation of criminal.

The punishment should be given taking into account the physical and mental conditions.
Punishment should not be given to minor and insane criminals, they should be reformed.

Lombroso has also said that the sufferers of crime should be compensated by the criminals.

Contribution of Lombroso

Though the theory of Lombroso was criticized by some criminologists, despite this, his
contribution to criminology cannot be forgotten. To say that Lombroso is father of modern
criminology and his views are consistent and relevant today is proper because:

a) Lombroso was the first person who studied in depth about criminals at about the year of
1870.
b) He refuted the false principles of pre-classical school-that man does not commit crime
only under compulsion by some devilish powers, viz power of ghosts, shaitan (devils)
and giants etc.
c) Lombroso tried to search causes of crimes in the man himself and pointed out the
physical constitution and mental condition as the symptom of crime.
d) Lombroso has laid greater emphasis on criminal rather and detected criminal instincts on
the basis of the physical constitution as a physician.
e) He studied many criminals in insane houses and persons and detected criminal instincts
on the basis of the physical constitution as a physician.
f) He was of the view that punishment should be given according to physical and mental
condition of criminals.
g) The minor and insane persons should not be punished. They should be reformed.
 h) He developed the theory that the first objective of punishment should be social security
and the second should be the reformation of the criminal. Thus considered punishment as
necessary for social security.
i) He advocated death punishment in case of serious crimes.

Donald R. Taft has to say that the effect off Lombroso criminology and penal policy is indicator
or proof of his importance. He started use of numerical numbers in analysing the physical
constitution of criminals. (Donald R. Taft: Criminology).

Despite much contribution of Lombroso in criminology, he accepted in the last few of years of
his life that his concept of hereditary criminal was far from reality. He adopted positive and
objective view about crime. Later on, these ideas have contributed in development of multifactor
school.

Qs. Socialistic school

Ans. Marx and Dutch criminologist Bonger believed in a causal link between crime and
economic and social conditions. He asserted that crime is social in origin and a normal response
to prevailing cultural conditions.

William A. Bonger‘s contribution to criminology in explaining the inter-relation of crime and

economic conditions deserves a particular mention. He derived his conclusions after an intensive
research study of economic conditions prevailing in different socialistic countries in the first half
of twentieth century.

He stated that the modern age is a period of capitalistic economy Bonger concluded that
capitalism was one of the potential causes of criminality because the system created an
atmosphere for promoting selfish tendencies in men. Even the socialist countries such as
erstwhile Soviet Russia and China have experienced that the theories of economic equalisation
have failed in their practical application.

Commenting on the co-relationship between economic conditions and crime, W.A. Bonger
concluded as follows:

(1) He prepared a statistical data and demonstrated that almost 79 per cent of the criminals
belong to non-profitable class. Thus, he tried to establish a co-relationship between poverty and
delinquency. In his doctoral thesis entitled Criminality and Economic Conditions, Dr. Bonger
made a detailed study of the economic literature of whole Europe and concluded that crimes
relating to property such as theft, stealing, robbery, dacoity, house-breaking etc. record an
abnormal increase during the periods of depression when the prices are high.

2) Bonger further observed that the influence of economic conditions on delinquency is

essentially due to the capitalistic economy which breeds disparity and leads to unequal
distribution of wealth. The capitalist resort to hoarding and monopolistic trends thus creating
artificial scarcity and consequent rise in prices. This in turn stops production which ultimately
leads to unemployment of labour, as a result of which offences such as alcoholism, vagrancy,
beggary, assault, violence, etc. record an upward trend.

(3) In an economic system based on capitalism, economic cycles of inflation and deflation are
frequent. Inflation gives rise to bankruptcy and insolvency with the result the persons affected
thereby are forced to lead an anti-social life and some of them may even resort to criminality.

(4) Another peculiar feature of capitalistic economy is the competitive tendency among
entrepreneurs. Efficiency, low-production cost and better quality of products are some of the
admirable results of competitive economy. But when these efforts fail to meet the competition,
unlawful devices such as violation of laws relating to trade marks, copyright, patents etc., are
committed by the manufacturers. This gives rise to increase in crime rate.

(5) There is yet another danger of the capitalistic economy which contributes to enormous
increase in crimes. The employment of children and women furnishes soothing ground for
criminality despite effective legislative restriction banning their improper utilisation in industrial
establishments.

It has been rightly observed that employment of children as labour is in itself a potential cause
for crimes because a child who earns his wages does not know how to spend it usefully.
Consequently, he is apt to spend his money on undesirable items such as smoking, gambling,
drinking, staking, womanising and so on, which ultimately drag him into the criminal World.

Qs: Sociology school.

Ans: The name of Sutherland in criminology is considered as very important. He is considered

as father of Sociological school of Criminology. His contribution in the development of
criminology is beyond comparison.

Sutherland’s Sociological School of Criminology

The sociological school of criminology is the most developed theory of modern age. Sutherland
is considered as the father and strong supporter of this theory. Sutherland defines criminology as
a branch of knowledge which treats crime as a social event. Three types of procedures are
included in this social event:

a) Law-making procedure
b) Procedure for violation of law
c) Social reaction as a result of violation of law.

Under the first procedure, scientific analysis is made of those circumstances under which
criminal law is enacted and its development takes place. This si known as ‘Sociology of law’.
Under the second procedure, all procedures of violation of law are included. Despite the
prohibition of crime, a group of society violated criminal law. Criminology discusses and
analyses all these causes on scientific basis which are at the root of criminal conduct. This is
known as the causative theory of crime.

Under the third procedure, the reaction is made by the individual, society and the state of
commitment of crime. This procedure is expressed by way of penal action. The branch of
knowledge of criminology which analyses this reaction is known as penology.

Sutherland is of the view that criminal conduct arises from those procedures from which other
social conducts arise. The analysis of these procedures related to criminality have taken mainly
two forms.

(a). Firstly, the sociologists have tried to link the difference in rates of commitment of crime with
all institutional methods with change in social organisation. In societies or sub-societies in
respect of change of rates of commitment of crimes, some social conditions have been described
some of which are- procedure of mobility, cultural contradictions, competition, standardization,
religious, political and economic ideology, destiny of population and organisation and
distribution of wealth, income and planning.

(b). secondly, the sociologist have tried to analyse those conditions under which a man becomes
criminal. These analyses were related with the normal principle of social learning and they used
the concepts of adoption, tendency, values, distinguisher, association and to some extent the
effect of despair and compensation.

From the above analysis, it is clear that the main assumption of Sutherland was that normally, the
crime is a learnt behaviour. He has to say that, “the crimes are not invented but they are learnt. A
man who accompanies the type of people, he does the same type of work. A person conducts in
the same way as the other does in association with him.”

Sutherland’s theory in respect of Criminal Conduct

The theory which was developed y Sutherland for analysis of criminal conduct is known as
theory of differential association. In reality, this is historical interpretation of criminal conduct.
The following are the assumptions of this theory:

a) The criminal conduct is the result of learning. It cannot be hereditary,

b) The criminal conduct is learnt in association with other person by way of action-reaction.
c) The main part of learning of criminal conduct takes place among well known groups of
persons.
d) Many things are included in the learning of the criminal conduct viz. technique of
conduct of crime, motives, wishes and attitudes and special directions therefore.
 e) Special directions for motives and attitudes is learnt from the favorable and unfavorable
definitions from legal codes.
f) A man becomes criminal when the definition of violation of law is more favorable or
beneficial for him s compared to the definition of violation of law which is unfavorable.
This is the theory of differential association. A person becomes criminal in association
with criminals or criminal tendencies and separation from non-criminal tendencies.
g) Differential association, continuity, time period, priority and quickness-they can be
separated from each other i.e. if a man comes into contact continuously with criminal
conduct, he may become criminal. Similarly if a person come into contact with non-
criminal association continuously, he may develop non-criminal conduct. The conduct
which remains persistent for a longer period, remains effective and affects man.
h) In association of Criminal and non-criminal conduct, the same instincts remain present in
learning of criminal conduct which remain in learning of other things.
i) Though criminal conducts are expressions of normal needs and values but they cannot be
interpreted by normal needs and values because non-criminal conducts are also the
expression of same needs and values.

Thus by development of criminological theory, Sutherland has given new direction to the
causative theory of crime.

Criticism

Sutherland’s theory is criticized by saying that:

i). the differential association is not important in itself. In reality, it takes shape of that
opportunity in which personal traits are expressed which are embodied in personality.

ii). This theory does not explain this fact that a person who remains in particular association or
atmosphere forms his conduct as criminal while the other person remaining in the same
atmosphere does not.

iii). There are many criminal conducts which are formed suddenly and they have no concern with
learning.

iv). According to George bold if crimes are analysed with the theory of differential association,
then it goes far off from the boundary of reality because it is difficult to think of crime in
association with any power.

Crime in reality, is a by-product of many causes, the only common thing is the violation of
criminal law.

Despute all these, Sutherland has given new direction to criminology and tried to make it
objective and scientific.
Qs. Multifactor School

Ans. Early theories of criminal behaviour have been criticized because they emphasised a single
factor as the cause of crime. Factors like inherited physical traits, biological inferiority, feeble-
mindedness, emotional disturbances, or poverty were described as the single cause of crime.

The multiple-factor approach in criminology grew out of discrepancies in single-factor approach.

Its adherents argued that crime should be understood in terms of varied contributions made by a
variety of factors.

The assumption was that crime is the product of many factors biological, psychological,
economic and social and those different crimes will be the result of different combinations of
factors. Hence, ‘proper’ approach in criminology is an eclectic one emphasizing identification
and analysis of multiple factors. Scholars who believe in this approach are William Healy, Cyril
Burt, and Sheldon and Glueck.

Study of William Healy and Cyril Burt

On the basis of his study of 1,000 juvenile delinquents, William Healy (The Individual
Delinquent, 1915) identified 138 factors and classified them as psychological, biological and
social-environmental factors in the causation of delinquency. Influenced by Healy’s work in the
United States, Cyril Burt (The Young Delinquent, 4th edn.1914) pursued a similar investigation
in England in 1925.

He found no less than 170 factors which he classified into nine major categories. Sheldon Glueck
(“Theory and Fact in Criminology”, British Journal of Delinquency, October 1956) in his study
of 500 delinquents and 500 non-delinquents in 1950 extensively analysed social background,
home-life, physical characteristics, intellectual ability, psychiatric states, emotion and
temperament of the respondents and identified socio-cultural, biological, and psychological
factors in delinquency.

He concluded that while a host of different factors show associations with delinquency, the
major causes of delinquency are “problems in the home” (parental separation, parental
drunkenness, physical or mental ailments, poor home management, lack of child supervision,
little show of affection), and so forth.

Multiple-factors

(1) Mobility:

The rapid growth of industrialisation and urbanisation in recent years has led to expansion of
means of communication, travel facilities and propagation of views through press and platform.
Consequently, human interaction has gone beyond intimate associations with increased chances
of mobility.
Migration of persons to new places where they are strangers offers them better opportunities for
crime as the chances of detection are considerably minimised. Mobility, therefore, serves as a
potential cause of social disorganisation which may result in deviant behaviour due to lack of
family control

(2) Culture Conflicts:

In a dynamic society social change is an inevitable phenomenon. The impact of modernisation,

urbanisation and industrialisation in modern dynamic society may sometimes result in social
disorganisation and this may lead to culture conflicts between different sections of society. The
difference may be between old and new values, local and imported values and traditional values
and the government imposed values.

(3) Family Background:

Sutherland holds that out of all the social processes, the family background has perhaps the
greatest influence on criminal behaviour of the offender. The reason being that children spend
most of their time with their parents and relatives within the family. Children are apt to imbibe
criminal tendencies, if they find their parents or members of the family behaving in a similar
manner.

(4) Political Ideology:

It is well known that the Parliamentarians who are law-makers of the country are also politicians.
They succeed in mobilising public opinion in the desired way through the media of press and
platform and finally enact suitable laws to support their policies. Thus, political ideologies gain
strength through legislative process thereby directly influencing the criminal patterns in a given
society.

The liberalisation of abortion law, imposition or withdrawal of prohibition laws, anti-dowry,

protection of women against domestic violence, prohibition on pre-natal sex-determination,
untouchability laws etc. are some of the examples to show as to how the concept of criminality
changes with the changed ideologies of the politicians and the government in power.

(5) Religion and Crime:

The changes in religious ideologies also have a direct bearing on incidence of crime in a
particular region. It has been rightly said that morality can best be preserved in a society through
the institution of religion. The bond of religion keeps persons within their limits and helps them
to keep away from sinful and criminal acts.

The declining influence of religion in modern times has tended to leave men free to do as they
like without any restraint or fear. Consequently, they do not hesitate to resort to criminality even
for petty materialistic gains. Looking to the present day Indian conditions, things seem to be still
worse.

(6) Economic Conditions:

Economic conditions also influence criminality to a considerable extent. Present day industrial
progress, economic growth and urbanisation have paralysed the Indian domestic life. The
institution of family has disintegrated to such an extent that control of parents over their wards
has weakened thus leaving them without any surveillance.

Under the circumstances, those who lack self-control fall an easy prey to criminality. The
employment of women and their other outdoor activities have enhanced the opportunities for sex
crime. Again crimes such as hoarding, undue profiteering, black-marketing, etc., are essentially
an outcome of economic changes.

(7) Influence of Media:

The importance of mass media in influencing human mind has been repeatedly emphasised by
some experts. Experience has shown that television and films have the maximum impact on the
viewers due to combined audio-visual impact. Most of serials or films shown on television or
cinema halls depict scenes of violence which adversely affect the viewers, particularly the young
boys and girls who often tend to imitate the same in their real life situations.

Criticism

The multiple-factor approach has been criticised by scholars like Albert Cohen and many others.
While recognising that the multiple-factor approach made a useful contribution to criminology
through the compilation of factors associated with delinquency, Cohen (1955: 5 -13) mainly gave
three arguments against it:

(1) The advocates of multiple-factor approach have confused a single theory with single-factor
explanations. A single theory does not necessarily explain crime in terms of a single factor.

Theories are concerned with ‘variables’ and ‘factors’ and a single theory usually incorporates a
number of different variables. To explain crime, we need theories which consist of logically
related propositions asserting particular relationships among a number of variables.

(2) Cohen objected to a major assumption of the multi-factor approach, namely, that factors have
intrinsic crime-producing qualities. Factors found statistically associated with crime are often
asserted to cause crime, or to be one cause among others.

(3) Many, if not most, multi-factor studies talk of ‘evil causes’. The fallacious notion is that evil
consequences (crime) must have evil precedents (biological pathologies, low IQ, pathological
mental states, poor living conditions).
Sutherland (1965: 61) has also referred to this argument against explaining crime or any other
social problem. He says: “When we explain crime, we tend merely to catalog a series of ugly
circumstances which any ‘decent citizen’ would deplore, and attribute causal power to those
circumstances.

Unit- III

Qs: Modes of Punishment

Ans: The journey of development of punishment is very long in India. He has started from the
cruel and barbaric punishment and reached the stage of probation, parole and reformatory
system. It will be proper to discuss the old system of punishment before discussing the present.

Penal System in the Past

In India, the past penal system has been cruel and barbaric. Here the following type of
punishments have been given:

1. Scolding (Kore Marna):

To beat with the criminal with scolds (Koras) is very ancient. This punishment was given to the
persons for breaking the soberness of women, vulgarness, cheating, drinking wine etc. the
number of koras depend upon the discretion of the judge. It was abolished afterwards because it
was a very cruel punishment.

2. Separation of Organ of the Body:

The punishment of separation of organ is also very old. It was prevalent in India and in other
European countries. There were two objectives of this system:

a) To resist crime; and

b) To take revenge.

This punishment was given in theft and immorality. In case of offence of theft, both hands were
cut, in case of immorality, sexual organ were cut.

The main objective of this theory was, “life shall go for life, hands for hands and tooth for tooth,
eye for eye and foot for foot.”

3. Touching hot Ion Bar (Dagana):

This system is also very old. Under this system, hot iron bars were touched on the head or body
of the criminal. This system was also prevalent in European countries, Roman Penal law,
America and England etc.

It is surprising but true that before sometime, Punjab Police used to write by hot iron bars on the
forehead of women committing the offence of theft writing as I am theif, (The paper published
by the another titled, police: A sign of interoogation in Rajasthan Patrika, Jaipur, 6 March, 1994).
Now this system is not in vogue.

4. To put hands and feet I foursided Iron box:

This form of punishment also existed in the past. The punishment of pillory was considered as
very cruel. In this system, the hands and feet of criminals were put in an iron box in such a way
that he could not move his body. Sometimes, the criminal was beaten with Koras, Hot Iron bars
were put on body (dagana) and stones were thrown upon him. The criminal was to be fitted in
the wall and punished. Such punishments were given in case of theft, rape and immorality.

This penal system was prevalent in Moghul period in India. This exists even today in some
Islamic countries.

5. Banishmen:

It was also known as learning the country, in India, it was called punishment of black water.
Under this system, the criminal sent to distant sea areas so that he may remain far off from the
society. Lombroso has accepted as the best method of punishment. The criminologist Garefalo
was of the same view. In India, the system of Zila Badar is the reformed shape of this
punishment. Dr. P.K. Sen consider it as reformatory system.

6. Solitary Imprisonment:
This penal system is just like banishment. Under this system, the criminals are kept separate
from the society i.e. they are kept in a solitary place. This penalty was intolerable because the
man could not bear this torture as a social creature.

Under section 73 and 74 of Indian Penal Code 1860, the provisions have been made of solitary
confinement. In addition to this, to throw I the boiling hot water and to throw before wield beasts
have also been the forms of punishment.

Present Penal System of India

The present Penal System of India is being governed by Indian Penal Code 1860. Under section
53 of the code, the following types of punishments have been provided:

1) Death penalty;
2) Life imprisonment;
3) Imprisonment hard and simples;
4) Forefeiture of property;
5) Fine; and
6) Solitary confinement (section 73 and 74).

In addition to the above, reformatory penal system also exists which includes probation and
admonition etc.

(1). Death penalty

This is the most severe and the highest punishment. Under this, the person i.e. the criminal is
punished with capital punishment. In ordinary local language of public it is known as
punishment of hanging till death (fansi ki saja). This punishment is given in severest cases.

Under Indian Penal code 1860, the capital punishment is awarded in the following cases:

a) To wage a bar against Government of India (section 121).

b) Abetment of mutiny, if mutiny is committed in consequences there of (section 132).
c) Giving on fabricating false evidence with intent to procure conviction of capital offence
and innocent person thereby be convicted and executed (section 194).
d) Murder (section 302).
e) Abetment of suicide of child or insane person; (section 305).
f) Decoity with murder (section 396).
g) Attempt to murder by such person who has been punished with life imprisonment
(section 307).

It is to be mentioned that the order of Session court imposing death penalty cannot be
implemented till it is ratified by High Court under section 366 of Code of Criminal Procedure
1973.
(2). Life imprisonment:

From the point of view of severity of punishment, life imprisonment stands next to death penalty.
Life imprisonment means imprisonment till the criminal lives alive. But under section 57 of
Indian Penal Code 1860, this period of life imprisonment is taken as 20 years. According to Jail
Manual, this period can be upto 14 years.

(3). Imprisonment:

It stands third in the chain of punishments. In reality, this is the most popular form of punishment
and in majority of cases, this punishment is given. Under this, the criminal is kept in prison. This
punishment is of two types. (a) severe and (b) simple.

In severe punishment, hard labour is to be done by the criminals in prison e.g. grinding floor,
drawing water, digging soil and cutting of wood etc. but under simple imprisonment, the prisoner
is kept in prison. No labour is to be done by the criminal. Under section 60 of Indian Penal Code
1860, any imprisonment may be partially hard or partially simple.

(4). Solitary Imprisonment

Solitary imprisonment is a form of simple imprisonment. Under this, the criminal is kept far off
from the society in some solitary place so that he repent on his criminal act. Dr. Hari Singh Guar
has to say that separation for a very long period from society of human beings becomes
intolerable and sometimes, it causes mental depression. (Penal Code of India).

Under section 73 and 74 of Indian Penal Code 1860, it has been mentioned as solitary
confinement. The main gist of Section 73 is as follows-

“whenever any person if committed an offence for which under this code, the court has power to
sentence him to rigorous imprisonment, the court may be by its sentence, order that the offender
shall be kept in solitary confinement for any portion or portions of the imprisonment to which he
is sentenced, not exceeding three months in the whole, according to the following scale, that is to
say,

A time not exceeding one month if the term of imprisonment shall not exceed six months.

A time not exceeding two months if the term of imprisonment shall exceed six months and shall
not exceed one year.

A time not exceeding three months if the term of imprisonment shall exceed one year.

The main gist of section 74 is as follow:

“in executing a sentence of solitary confinement, such confinement shall in no case exceed days
at a time with intervals between the periods of solitary confinement of not less duration than such
periods and when the imprisonment awarded shall exceed three months, the solitary confinement
shall not exceed seven days in any one month of the whole imprisonment awarded with intervals
between the periods of solitary confinement of not less duration that such period.”

(5). Forefeiture of Property:

Forefeiture of property is though part of the fine but it has been considered as a separate
punishment. In this case, the property of criminal is forefeited. In the part, this punishment was
prevalent but now it has remained only in name.

Mention of this punishment has been made under the following sections of Indian Penal Code
1860.

a) Looting in the territory of the country friendly with India (section 126).
b) Acquiring such property by looting and taking it in possession (section 127).
c) To cell property illegally and bidding for it by public servant (section 169).

In Mohammad Shabbir Molamiya V/s State of Maharashtra (1977 Maharashtra Law Journal
3381) to postpone the notification for six months under Motor act has not been considered as
forefeiture of property.

(6). Fine:

It is a punishment of normal nature. For normal or simple offences, the punishment of fine exists
almost in all countries. It is a type of punishment.

a) Which increases government revenue; and

b) Not torturous to the man under charge.

The system of fine exists in case of offences relating to motor and commercial establishments.
On non-payment of fine, the criminal may be punished with imprisonment. Under section 63 and
64 of Indian Penal Code 1860 and under sections 357 and 421 of code of Criminal Procedure
1973, provisions have been made in this regard. While imposing fine many things like nature of
crime, severity, age of criminal, character, status and family background are considered.

(7). Reformatory Punishment:

It is a new concept of punishment. This concept is based on the maxim that, “nate crime not
criminal”. The concept is that the man is not criminal by birth, it is circumstances which make
him criminal. Therefore, such circumstances should be removed and the criminal should be
given the chance to reform himself. On the basis of this theory, some reformatory steps have
been taken in making provisions in the criminals laws-

a) Probation
The convict is released on the condition that e will maintain good conduct instead him in jail.

According to Illiot, “to reduce punishment of the criminal when the crime is proved by the court
on the condition of maintenance of good conduct is probation.

According to Walter C. Reckless, “the suspension of the punishment of the convict by the court
is known as probation.”

The main objective of probation is to give chance to the criminal to reform himself instead of
punishing him. [Baldev Raj V/s State (1969), 71, Punjab L.R. 158].

In Shivcharanlal V/s State (A.I.R. 1973 Rajasthan 167), the Rajasthan High Court has decided
that, “the main objective of probation is to reform the criminal and to rehabilitate him.”

In India, provisions regarding probation have been made under sections 49 Probation of
offenders Act, 1958 and under sections 360 and 361 of Code of Criminal Procedure 1973.

(b) Admonition

Like probation, admonition is also a form of reformatory punishment. Under this, the criminal is
not put in jail but given the chance to reform himself in future by giving him warning as not to
commit such crime. The provision for admonition has been made under section 3 of probation of
Offenders Act 1958.

Parole

Parole is also said as a form of reformatory system. It is also known as holiday from prison.

According to Warms and Teeters, “Parole is the type of conditional release which is granted to
the criminal after undergoing by him of part of the punishment imposed upon him.

In the words of Illiot. “to release the criminal before completing the term of punishment of
imprisonment on the recommendation of Parole officer is parole. The main objective of parole is
to give the chance to the criminals to reform and to develop a system of confidence in them.

In Babulal das V/s State of West Bengal (A.I.R. 1975 SC 606), the justice Krishna Aiyyar has
said that the prisoners kept in prison should be released on parole while keeping much sympathy
for them.

Qs: Theories of Punishment

Ans: it is said about punishment that uninvestigated criminals are an expensive luxury. This
statement is correct. The punishment is directly related with crime. The punishment is given
according to the nature of crime. While awarding punishment, to the criminal, the surrounding
circumstances are also taken into account. Many things assist in commitment of crime viz
circumstances under which crime has been committed, conduct of criminal, his conscience, the
conduct of aggrieved party and his status, they all determine the form and quantum of
punishment.

Many times crimes are committed under compulsion and adverse circumstances. The criminal
has to repent afterward on his act. The spent of reform arises in him. While passing order for
punishment, this thing has also to be taken into account. Further, this is also one aim of
punishment that the severest possible punishment should be given to the criminal so that crimes
may be prevented, terror may be created in the society and nobody may dare to commit crime
considering all these things into account, some theories of punishment have been propounded.
The main theories are as follow:

1) Deterrent theory;
2) Preventive theory;
3) Retributive theory;
4) Expiratory theory; and
5) Reformative theory.

(1). Deterrent theory- this is the oldest theory of punishment. Its main objective is to keep
separate the criminal from the crime by terrorising him by means of punishment. In addition of
this, its objective is to terrorise the other person in the society so that they may remain separate
from crimes. Thus the main objective o this theory is to check crime by means of terror of
punishment. The main assumption of the supporters of this theory is that the criminals should be
given very rigorous punishment, torture etc should be given so that the criminal himself and the
whole society may become terrorized and may not to dare to commit crime in future.

Though this theory is practiced in some countries but it has been criticized by many
criminologists. The critics have to say that the crimes cannot be checked by means of
punishment only. From severe punishment, the possibility may exist of increasing rather than
reduction in crime. The critics treat it as barbaric and cruel and, therefore, it has no place in the
present system of punishment.

Sutherland is one of the same view. According to him, many criminals do not think over
punishment, even they are not under terror because they have defective mentality. Many times,
crimes are committed under severe excitement and emotions which have no relation with the
form and quantum of punishment.

(2). Preventive Theory- this theory is of most rigorous type. The objective of this theory is to
make the criminal disabled and to provide the security to the society. The supporters of this
theory have to say that the criminals are thorns for a society. They create chaos and insecurity in
the society. Thus such criminals should be ekpt separate from the society.
The following forms of punishments are proper for them:

a). death penalty;

b).lifetime imprisonment; and

c). banishment

this theory of punishment is based on the maxim that, prevention is better than cure. Instead of
taking revenge from the criminal, the crime itself should be prevented. The famous Jurist Fische
has to say that the aim of all penal laws is that they should not be applied i.e. such conditions
should not be created so that they are to be applied. It means, that the main objective of
punishment is that the people should not commit crime; and when they will not commit crime;
there will be no need to apply the penal laws.

Bentham and Mill are the strong supporter of this theory. According to them, the death penalty is
awarded to the criminal not on the basis that he should not commit crime in the future but
awarded so that the society may get rid of such person.

This theory is also subject to criticism. The critics have to say that hoe long a society may be
kept separate from the criminal? On some day or other, he will be turned out of the prison. After
turning out, he will not commit cannot be guaranteed. Therefore, this is not the final solution of
commitment of crime.

In spite of this, the forms of punishment viz. death penalty and lifetime imprisonment have been
given important place in the penal system of various countries.

(3). Retributive theory- it is also known as revengeful theory. The main objective of this theory
is to take revenge from the criminal. The main idea lies behind this theory is that, “as you sow so
shall you reap”. Life shall go for life, hand for hand and foot for foot, eye for eye and tooth for
tooth.

According to P.K.Sen, “evil for evil without thinking of consequences is the main objective of
this theory”.

Plato has to say that, “Justice is the goodness of soul and health and injustice is illness and evil
whose remedy is punishment.”

In the words of Bradley, “the relation between criminal law and revenge is such as it is between
marriage and affection.”

But some critics have criticized this theory. Salmond has to say that , “revenge is not the remedy
of crime but cause of increase in crime”. Other critics consider it as the punishment of very low
or degraded nature.
Alongwith criticism, some thinkers have supported this theory. In the opinion of Dr.
M.J.Setahna, “the objective of retributive theory is not revenge but it is the wrongful act. What
a man does, he should get the like results.”

Professor Keetan this theory as ethical. His view is that this theory is relevant in the changed
context of today.

(4). Expiatory theory- this is the theory of expiation. Since crime is considered as sin in our
society. Therefore, expiation is necessary for this sin. In reality, it is not a legal theory of
punishment because it is based upon religious concepts. It has no legal effects. It is not necessary
that a criminal should not be punished after his expiation for his sin.

(5). Reformative theory- this is the modern theory of punishment. The main objective of this
theory is to give the chance to the criminal to reform. It clears the way of society after reforming
the criminal. It is based on the maxim ‘hate the crime not the criminal’. A man is not criminal by
birth, if the circumstances which make him criminal. Poverty, emotions, compulsion and family
atmosphere are such causes which make a man criminal. After commitment of crime, the
criminal repents upon his acts many times. He wants to reform himself. Keeping all things into
account, the reformatory theory has been evolved.

According to this, a criminal is not awarded the punishment of imprisonment but is given the
chance to reform himself by means of the following:

a). probation;

b).admonition;

c).parole;

d).keeping in a reformatory house;

e).to pay remuneration for the work done; and

f). rehabilitation etc.

Bentham ,Ferri, Garefalo, and Walter Reckless are the strong supporter of this Sutherland is
also supporter of this theory. In Shiwaji V/s State of Maharashtra, 1972, Criminal Law Journal,
1783 SC), Justice Krishna Aiyyar considered present penal system as not suitable to the present
society and recommended reformatory theory of punishment.

This theory has also been criticized. According to critics:

(a). the terror of punishment is necessary for prevention of crime;

(b). there is a strong possibility of misuse of reformatory system;

©. The reformatory measures cannot prove successful for habitual offenders; and

(d). the effect of this theory may be experienced only on juvenile delinquents and emotional
criminals.

In an American report titled ‘struggle for Justice’ it has been said that, “The reformatory theory
is nothing except as a show. The main objective behinal adoption of this theory by prison
authorities is to increase their powers.

Conclusion

From the above, it is clear that each theory has its own advantage and disadvantage. In the
present context, no single theory can prove successful. For prevention of crime, severe
punishment is necessary for creating terror. The criminal should get the result of his act. Along
with this, if the crime has been committed under compulsion, emotions, and if he expiates for
that, he should be given the chance to reform himself.

Therefore, it is desired that a universally acceptable theory of punishment should be evolved

which may take into consideration the surroundings circumstances, age, character, nature of
crime and spirit of reforms etc.

Qs: capital Punishment.

Ans: death penalty is the severest and last punishment. It is the climax of the punishment. It is
known as punishment of death or punishment of hanging till death. It is also known as capital
punishment. It is given in rarest of rare cases.

What is death penalty?

As said above, death penalty means punishment of death. The simple meaning of this is to cause
death of criminal. The whole life of criminal is put to an end.

According to Fare child, the punishment of death for crime of the criminal is called death
penalty or capital punishment.

In the words C.M. Abraham, “in severest of cases, to cause the death of criminal in accordance
with death policy is called death penalty or capital punishment.”

In simple words, it can be said that such punishment which causes death of a person is capital or
death sentence.

Objectives
The main objective of death penalty is to prevent crimes. The peoples are terrorized by means of
death sentence so that they should not move toward crime. This is the reason that it is known as
revengeful sentence. The criminologists have to say that the severest the punishment, the less the
crime. The death sentence causes terror in the mind of people so that do not dare to commit
crime.

Methods

Different methods have been in use for exercising death sentence till death but there is lot of
difference in the methods used in the past and present. In the past, the methods of causing death
sentence were very cruel and barbaric but in the present, the life is ended by hanging the
criminal. The following methods have been in use for implementation of death sentence:

a. To burn the criminal while he is alive;

b. To put him in the wall;
c. To separate the skin from the bone;
d. To separate his head from the body;
e. To throw before the wield beasts.
f. To put in boiling water or oil;
g. To make him drowned in the water;
h. To cut separate all organs;
i. To kill by throwing stones or to beat with stones;
j. To hang till death;
k. To shoot by him bullet;
l. To put in the cage of lion;
m. To administer poison;
n. To tie with stones and to put in water;
o. To crush by feet of elephant;
p. To touch hot iron bars ;
q. To throw underneath the mountain etc.

But today these methods are not considered appropriate. Today even the hanging till death on
public place is not considered justified. (Mrs. Lakshmi Devi V/s State of Rajasthan, 1986),
criminal law journal, 264).

In what cases, Death Sentence should be Awarded?

This is s a most serious question as to in what cases, death penalty should be awarded? The
normal notion is that this punishment should be awarded in most serious cases. Many court
decisions indicate that this punishment should be awarded in rarest of rare cases.

In State of Uttar Pradesh V/s Satish, A.I.R. 2005 Sc 1000) the Supreme Court has decided that
the death sentence is justified in rarest of rare cases. To rape with a six year girl and to cause her
death is the rarest case and to award punishment of death in such cases is justified. The court
said, it is duty of courts to prevent miscarriage of justice.

In Susheel V/s State of Jharkhand (A.I.R. 2004 SC 394) and Subhash Ram Kumar V/s State
of Maharashtra (A.I.R. 2003, SC 269) it has been said that death sentence should be given in
rarest of rare cases.

In Molei V/s State of Madhya Pradesh (A.I.R. 2000 SC 177), to rape with a sixteen years girl
and to kill her was considered as the rarest of rare case.

In Sahmshool Kanwar V/s State of Uttar Pradesh (A.I.R. 1995, SC 1748), the Supreme Court
has decided that in rarest of rare case of murder, the death sentence should be awarded. The
number of persons killed is meaningless.

Arguments in favour of Death Sentence

This is the most burning question today whether death sentence should be abolished? Many
tinkers are in favour of this while many are against it. This punishment has been abolished in
criminal laws of various countries while in many countries, this punishment still exists.

The following arguments are given in support of death sentence:

(1). Death sentence is a necessary evil. It is the severest punishment but still necessary for
prevention of crimes.

(2). Death sentence is unevitable to check crimes. By means of this punishment, the criminal is
separated from society for ever. With the result, the crimes are not repeated.

(3). The death sentence creates terror in the minds of people so that they do not dare to commit
crime.

M.A. Khusro has to say that the terror of death sentence checks murders. If this punishment is
abolished and only the sentence of life imprisonment is kept, the criminals will get incentives
because the period of life imprisonment is very less in India.

(4).In case of severe and habitual criminals, death sentence is the appropriate punishment for
them because they are not affected by other punishments.

(5). For cruel criminals, this sentence is proper because when they do not show pity towards the
life of others, why pity should be shown towards their lives?

(6). Death sentence is the proper remedy for born criminals which abolishes them forever.

(7). The objectives of some criminals are to damage the life and property of others. They cannot
remain silent without it. The society can be secured from the terror of such criminals by
awarding them sentence of death.
(8). This punishment acts as a revenge when any body takes away the life of any one, there is no
harm in taking his life (life shall go for life).

(9). This punishment remains meaningful in maintenance of law and order.

(10). This punishment has been considered as a means of self purification. It has been said there
should be repentance for every sin.

(11). It is very convenient and most economical punishment. The expenditure incurred is very
less.

(12). Death sentence is less torturous the death of the criminal takes place within a few moments.
In other cases, long tortures are to be faced by criminals in prisons. Plato has to say that those
who cause damage to others except in case of sleeping, it is better than they should die.

Arguments against Death Sentence

Now we consider those arguments which are against death sentence. These arguments resist
death sentence and suggest that it should be abolished. Those thinkers who oppose death
sentence have to say that, “capital punishment while pretending to support reverence for human
life does in fact tend to destroy it.”

In support of this statement, the following arguments are given:

1) This is wrong notion that death punishment prevents crime or they become less. The death
sentence is prevalent from the time unmemorial but still the crimes are increasing. This is an
indicator that the death sentence cannot check crimes. Sutherland is some of the view.
2) Checking up of crimes is not possible even by terror. If the crimes should have been
eliminated because of death sentence, then crime should not have committed in the society
because death sentence is prevalent in the society from the time unmemorial.
3) This thinking is defective that some are born criminals which can be cured by death
sentence only. In fact, no body is born criminal. There are some circumstances which make
them criminal. Therefore, it is desired to abolish the circumstances which leads one to cause
crime.
4) The prevention of crimes in not possible be death sentence but by change of heart so long as
there is no pity, affection, kindness, selfless emotion, sympathy, responsiveness in the heart
of a man, the sense of crime will persist in his heart.
5) Death sentence is very painful for the relatives of criminal. The person to whom death
sentence is awarded dies but his relatives have to face severe economic crises.
6) The persons who are victim of death sentence are normally poor persons because the
prosperous person while appointing good lawyer saves himself from legal complications.
7) This is a method of violence which is not proper for countries who believe in non-violence.
8) It is wrong to think that death sentence is convenient and less expensive the criminal has to
face, many tortures in this punishment.
9) It is not necessary that death sentence is helpful in maintenance of law and order.
10) Death sentence reduces the reverence for life. The person concerned has no affection for his
life and for his relatives. Therefore, death sentence destroy the reverence for life i.e. the life
becomes meaningless. Thus many thinkers are in favour of abolition of death sentence.

Qs: Probation

Ans: Man is not criminal by birth. It is circumstances which make him criminal. many times, a
criminal repents for his acts. He wants to reform himself. Under such circumstances, to punish
the criminal with sentence of imprisonment is not proper. this is the reason that later on, the
correctional form of the punishment emerged and probation is a part of it.

The main objective of probation is to give the chance to the criminal to reform himself. This is
based on the maxim, “hate the crime and not the criminal”.

What is Probation?

The word probation arises from the word probare of Latin language whose meaning is to
examine.

Different definitions of probation have been given by different criminologists e.g. According to
Dr. Walter C. Reckless, “Probation means the suspension of the order of punishment passed by
the court against the convict.”

According to Illiot, “to reduce the period of punishment by the court in case of convict on the
condition of good conduct is probation”.

From the above definitions, the following are the characteristics of probation:

a) Under probation, the order of punishment is kept under suspension.

b) Under this, the criminal is given the chance to reform himself.
c) Under this, instead of sending the criminal to prison, he is given the opportunity to reform
himself by living in the society.
d) Under probation, the criminal is released subject to certain conditions. Such conditions are
maintenance of peace, good conduct and non repetition of crime etc.
e) The criminal has to give bond, submit security and guarantee as regards the compliance of
those conditions.
f) On violation of these conditions, the criminals may be put to prison again.
g) During the periods of probation, the criminal is put under the vigilance of probation officer.
Objectives

The following are the objectives of the probation:

a) To give the opportunity to the criminal to reform himself;

b) To make him rehabilitable;
c) To keep him separate from the company of habitual offenders;
d) To give him the opportunity to repent upon his acts;
e) To keep him separate from the repetition if the crime in future etc.

In Shivacharanlal V/s State (A.I.R. 1973, Rajasthan, 167), the Rajasthan High Court has said
that the main objective of probation is to give the opportunity to the criminal so that he may
reform himself and to make him rehabilitable.

In Ramji Missar V/s State of Bihar (A.I.R. 1963, SC 1088), the Hugh Court has decided that
the main objective of probation is to keep young criminals separate from the habitual criminals
and to reform them.

In Ram Naresh Pandey Vs/ State of Madhya Pradesh (1974, Criminal Law Journal 153) it has
been said that the main objective of probation is to save the young criminals from company of
habitual criminals while not putting them in prison and to see that they should not become such
criminals in future.

To Which Criminals the benefit of Probation can be given ?

This is an important question that to which criminals, the benefit of probation can be given? The
normal or general thinking is that the benefit of probation should be given to the criminals who
have committed crimes of very simple nature. It is not proper to give benefit of probation to the
habitual offenders.

In Jugal kishore Prasad V/s State of Bihar (A.I.R. 1972 SC 2522), the Supreme court has said
that the benefit of probation should not be given to the criminals who have committed crimes of
very severe nature.

In Dalbir Singh V/s State of Haryana (A.I.R 2000, Sc 1677), the Supreme Court has said that
th benefit of probation should not be given in such cases in which the death has been caused by
driving the vehicle carelessly and hurriedly.

In State of Himachal Pradesh V/s Bhuto Mohammad (2000 FAJ 239 HP) it has been decided
that the benefit of probation should not be given in cases of food adulteration until the criminal is
below the age of 18 years.

There are many other cases in which crimes can be dealt with under the system of probation and
the criminals. On the whole, it can be said that the benefits of probation can be given in the
following cases and the circumstances:
 a) When the crime is of very simple nature i.e. it is not of very severe nature.
b) The criminal has not committed the crime earlier and proved i.e. benefit should be given
to the criminals who have committed crimes for the first time.
c) The criminal should not be a habitual offender.
d) The prior conduct of the criminal has been good.
e) The trial has continued for a very long time.
f) The criminal should be below the age of 18 or 21 years.
g) The criminal is very poor and has lost his livelihood.
h) The criminal has the spirit of reform and has repentance of his criminal conduct.
i) The criminal is not punishable with death penalty or life time imprisonment and
j) The criminal is woman or child.

In Kamarunisa V/s State of Maharashtra 1974, Criminal Law Report, 639 SC, the Supreme
Court has decided that the benefit of probation should not given to the criminal who has
committed crime again after getting the benefit of probation.

The factors to be considered while giving the benefits of Probation

The court should consider the following factors while giving the benefits of probation:

i. Age of criminal;
ii. Prior conduct of criminal;
iii. Character;
iv. Nature of crime;
v. Circumstances of the case;
vi. Prior conviction;
vii. Report of probation officer etc.

Difference between Probation and Parole

The following are the differences between Probation and parole:

1) Probation is the suspension of the order of punishment i.e. in case of probation, the
charge is proved but instead of punishing him, he is given the benefit of probation so that
he may reform himself. While under parole, the sentence is not suspended, but after
undergoing part of the sentence, he is released for the remaining part on parole so that he
may adjust himself in the society.
2) Under probation, the criminal is always remain under the process of correction. He is
always under the fear that if he violates the condition sof probation, he may be again put
to prison. In case of parole, the criminal remains under custodian, he may remain under
the fear that if he does not comply with the condition of parole, he may again put to
prison for remaining part of the sentence.
 3) The benefit of probation is given by the court while the benefit of parole is given by the
Parole Board.
4) Probation is the primary and the first stage of reformatory and correctional system while
parole is the last stage.
5) Probation is not a punishment. Under it, there is no Black spot on the criminal. But under
parole, there si black spot on the criminal for ever that he has been a prisoner.
6) The benefit of probation is given to the person who has committed a crime of very simple
nature for the first time while the benefit of parole is given to criminals who have
undergone a long imprisonment.
7) Probation is a judicial process while parole is a quasi judicial process.

Qs: Parole

Ans: parole means holiday from prison. In the present time, the utility of parole is being
experienced because it is the simple method of reducing crowd in the prisons. Its main objective
is not to keep prisoners in the four walls of prison for a very long time and to turn them out
because keeping them in prison for a very long time is not beneficial to their family, government,
administration and society.

What is Parole?

The definition of Parole has been given by different jurists, judges and criminologists e.g.

According to Barms and Teeters, “parole is a form of conditional release granted after a
prisoner has served a portion of his sentenced in a correctional institution.

According to Dionald R. Taft, “Parole is such method of release of the prisoners in which he is
given the freedom to maintain relations with other members of the society while living under the
supervision of the authorities and constructive cooperation is extended in his rehabilitation.”
(Donald R. Taft: Criminologists).

In the opinion of Robert Cross, “parole is such release of the criminal from the penal or
correctional institution for a long time, after completing a part of the sentence on the condition
that he will remain under the supervision of the state and will be sent back to prison on violation
of the conditions of parole”. (Robert Cross: The English Sentencing system).

According to Giardeno, “parole is the system of the conditional release of criminals who have
been put in prison or correctional institution and have completed a part of their sentence.

From the above definitions, parole is the method of release of the criminal from the prison who
has completed a part of his sentence to given him an opportunity so that he may adjust himself
with the society.

The benefit of parole is given to the following persons:

a) Those who are passing through their sentence in any prioson or correctional institution;
b) Those who have completed a greater part it;
c) Those whose conduct has been good during this period.
d) Those in which there is spirit of reform and repentence.

Objectives

From the definition of parole, its objectives become clear e.g.

a) To create confidence in the prisoners put in prisons;

b) To give them opportunity to reform themselves;
c) To encourage them to lead a disciplined life by keeping them under supervision;
d) To reduce crowd in the prison;
e) To keep separate the prisoners from the long term evils of the prison life;
f) To save the prisoners from the sense of self repentance and to inspire them to lead a
respectful life;
g) To keep the prisoners under the fear that if they violates the condition of parole, they can
again put to prison.

Period

The period of parole is not certain. It may be any period. According to Walter Reckless, “the
period of parole should not be more but less because maximum benefits can be obtained with
duration of short period. Long period of supervision is meaningless.

Benefits of Parole

According to the various criminologists, the following are the benefits of parole:

a) Under parole, the criminal gets the chance to improve. He repents upon his criminal acts;
b) The criminal becomes freed from the sense of despair and fells the sense of respect;
c) He learns to lead a disupluned life during the period of parole;
d) Parole makes the criminal a good citizen and encourages him to laed a good life;
 e) The criminal becomes freed from the polluted atmosphere of prison and saves himself
from the bad company of severe offenders;
f) The criminal becomes freed from the prison and develops the capacity to adjust with
home, family and society;
g) Under the system of parole, the crowd of criminals becomes reduced so that the burden of
expenditure on state is reduced;
h) The criminals when gets released on parole, gets the chance to serve and maintain his
dependants.

Thus there are many other benefits of parole. In Dharamvir V/s State of Uttar Pradesh (1979)
3 SCC 645) the Supreme Court has recommended to release such criminals on parole who have
been passing through their sentences for a very long in prison so that they may adjust themselves
with the society.

Similarly, in kishnalal V/s Delhi Administration (1976) 1 SCC 655), the Supreme Court has
recommended to release such criminals from the prison whose conduct has been good during
their prison life.

In Heeralal Malik V/s State of Bihar [(1977) 4 SCC 44], the Supreme Court has decided that
the prisoners who were undergoing long term punishment should be given the benefits of parole
provided that they do not violate the conditions of parole.

Disadvantages of Parole

While there are many advantages of parole but there are certain disadvantages also. The
criminologists have stated the following disadvantages:

a) Normally, the prisoner is released on parole because his conduct in the prison has been
good but it is not necessary that his conduct will also be good outside the prison.
b) Due to parole, the sense of inferiority develops in the prisoners because the society does
not accept him and does not pay proper regard to him.
c) After getting released on parole, when the criminal does not get any proper system of
rehabilitation, he again steps towards crime.
d) The prisoner who gets released on parole, cannot lead life without fear because he has an
apprehension to be kept in prison again.
e) Many times, the criminals who are released on parole become victims of corruption,
misbehavior and partiality of parole officer.
f) Many times, the prisoners himself does not want to get release on parole because he is
under fear that the society will call him prisoner. Thus, there are many disadvantages of
parole. But despite of all these, Barns and Teeters have to say that if parole system is
used rationally, it may prove a boon to the society (Barns and Teeters: New Horizons
in Criminology).
From removing the defects of parole system, Martin has suggested that the powers to review the
parole should be conferred upon the court. From review, the system may be impartial and
balanced.

Qs: prison system

Ans: the prison occupies an important place in criminal administration. It is the prison by which
the penal order is implemented. In English prison is also called jail which is the most popular
word among the masses.

What is Prison?

It is also called jail. Different jurists and judges have given different definitions.

According to M.J. Sethna, “the meaning of prison is cage in which criminals are put. This is
known as prison or jail.” (MJ.Sethna society and Criminlas).

In the words of Dr. P.D.Sharma, “prison means such place where the convicts and the persons
under trial are kept. (Dr. P.D. Sharma: Policeand Criminla Justice Administration in
India).”

The prison has also been defined under the Prison Act 1894, “Prison or jail is a place determined
by administration where the person under trial or convicts are kept on temporary or permanent
basis”.

From the above analysis, it becomes clear that prison means such place where the convicts or
persons who are under trials are kept till their guilt is proved.

Objects of Prison

In the past, the main objective of prison was to keep the prisoners within the four walls of prison.
But according to country, time and social circumstances, there has been a change in the
objectives of criminals. The objectives of prisons have been reflecting the reaction of society
towards crime. The objectives from the past to present may be put under the following heads:

(1). Revengeful objects

The revengeful objects of prison is in same way as it is in case of crime. It is well known that the
criminals spread chaos and creates insecurity in the society. They are painful and thorn for the
society. Therefore, to keep them under pain and trouble is the objective of prison. Under this, the
criminals are put under torture tought courts have diverted their views from this but still the
objects of revenge still persist.

(2). Objects of Detention

Normally, every society wants to get freed from crimes and criminals. The crimes should not be
repeated is also the spirit of society. For this the society wants that the criminals should be made
unable and incompetent to commit such crimes. The prison fulfill thus objectives of society.
Here the criminals kept under strong discipline and control and hard labour is taken from them so
that they may become incompetent to commit crime.

(3). Preventive objects

This is one of the object of prison that the rate of crime should be reduced and there should be a
spirit of not to commit crime. They should remain separate from crimes and should think that to
commit crime is not worthwhile. This is sthe preventive object of prison.

(4). Reformatory objects

The last object of prison is to create a spirit of reform among the prisoners. In prison, the
prisoners are behaved in such a way so that they may improve their conduct. The efforts are
made to trace the causes of crime and to remedy them. Proper arrangements are made for the
education, health and rehabilitation. This is the spirit of the authorities that the criminals should
give up the habit of crime and become good citizens.

The justice Krishna Aiyyar has to say that, “Kindness occupies an important place in
administration. In prison, the authorities should have a sense of kindness towards the prisoners.
There should be human treatment with criminals. The concept hate crime not criminal, should be
kept in mind. They have also right to life and liberty under Article 21 of the constitution i.e. they
have right to live with dignity and honour. Their fundamentals and human rights cannot be taken
away due to walls of stones of prison.”

From the above analysis, the following objects of prison system become clear:

a) To give the opportunity to criminals to repent on their acts;

b) To create a terror in themselves so that they may nor repeat such crimes;
c) To give such agonies and torture to the criminals so that they may not to dare to commit
such crimes in future;
d) To keep the criminals far off from the society;
e) To keep silent the violent attitude of society towards criminals;
f) To safeguard society;
g) To safeguard criminals, to provide food, residence and medical facilities for them;
h) To give the opportunity to the criminals to reform themselves; and
i) To complement penal or state orders.

Types of prison

Central Jails – 
Central Jails comprises of those prisoners who are sentenced to imprisonment for more than 2
years. They are meant for lifers and for people who commit heinous crimes. In this type of
prison, effort is made to restore the morality and integrity of a person. The criminals earn their
wages in these types of jails. Central jails have a larger capacity of providing accommodation to
prisoners in comparison to other jails. Madhya Pradesh has the highest number of Central Jails
which stands at 11. Maharashtra, Rajasthan, Tamil Nadu, and Punjab have 9 central jails
followed by Karnataka and Delhi which have 8. States like Arunachal Pradesh and Meghalaya
do not have any Central Jails. As per the National Records Crime Bureau, there are a total of 134
central jails in India which have a capacity of accommodating 1,59,158 prisoners. As per the data
of 2015, 1,85,182 inmates are present in the central jails.

District Jails – 

There is not much difference between the district jails and the central jails. District jails serve as
main jails in those states and Union Territories of India where there are no central jails. There are
a total of 379 district jails in India which have a capacity of accommodating 137972 inmates
only, but currently, there are 180893 inmates present in the district jails all over India. Some
states which have a considerable number of district jails include – Uttar Pradesh – 57, Madhya
Pradesh -39, Bihar – 31, and Maharashtra which has 28 district jails.

Sub Jails –

Sub Jails in India play the role of sub-divisional level jails in India. As they are at a lower
formation, they have a better and well-organised prison set-up. There are 9 states which have a
higher number of sub-jails in comparison to other states in India. Maharashtra has the highest
number of sub-jails i,e 100 followed by Andhra Pradesh which has 99. Tamil Nadu has 96,
Odisha -73, Madhya Pradesh – 72, Karnataka -70, and Rajasthan has 60. Some states and Union
Territories do not have sub-jails. They are Arunachal Pradesh, Chandigarh, Delhi, Haryana,
Manipur, Meghalaya, Mizoram, Nagaland, and Sikkim. There are a total of 741 sub-jails with a
capacity of 46368 people. But currently 39989 inmates are lodged in these jails.

Women Jails –

As per the latest prison analytics available in the reports of NCRB, women constitute nearly
4.3% of the total prisoners in India which is around 17, 834 women. In order to ensure the safety
of women, separate jails are built exclusively for women to house female prisoners. These jails
comprise of women staff. There are a total of 14 women jails in the country which has a capacity
of accommodating 4748 prisoners. As per the NCRB data of 2015, there are 2985 inmates in
women jails throughout the country.
Open Prison

The concept of open prison is the contribution of the later part of the twentieth century. It is
known as jail without walls or Sampurnanand camp. For disposal of crime, this is the new
correctional method. The credit for start of open jail system goes to Dr. sampurannand then chief
minister of Uttar Pradesh and that is why it is known as Sampurnanand camp. It was commenced
for the firsts time in 1952 in Chakia Tehsil of Banaras District.

The meaning of open jail is jail without walls. Under this system, the prisoners are not kept
under jail but kept in open and free atmosphere. The main features of this system are as follows:

I. To give the opportunity to the criminals to take breath in free air by not keeping them
closed within four walls of prison.
II. To provide food, shelter, education, medical and recreation facilities for them.
III. To take hard labour from criminals and to pay remuneration for it.
IV. To remit such remuneration to their members of family.
V. To give the opportunity to the criminals to meet their relatives.
VI. To inculcate in them the spirit of reform.

In 1955, many such camps were organised in Banaras, Naugarh, Shabbad (Peelibhit), Nanak
Sagar (Nainital) in Uttar Pradesh which have been highly appreciated in “UN congress on the
prevention of crime and treatments of offenders”.

In Rammurti V/s State of Karnataka (A.I.R. 1997 SC 1739), the Supreme Court has highly
appreciated the open jail system.

Unit –IV

Qs Victimology meaning, nature and Scope

Ans. Introduction

During ancient times, victims had many rights and they used to play a crucial role in the criminal
justice system. This was true during the reign of Hindu kings as well as the Muslim Period. Even
though their system of criminal trial and punishment was harsh and in many cases absolutely
barbaric (for instance, trial by ordeals), the main aim was to impart justice to the victims.

         However, with the emergence of the ‘adversarial system of justice’, the plight of the
victims became worse and they became forgotten people except for their minor role in the
criminal justice system as a prosecution witness. It was believed that the claim of the victim was
sufficiently satisfied by the conviction and sentencing of the offender. This assumption is neither
fair nor just. Justice demands that when society and the State are resorting to every possible
measure of correction and rehabilitation of offenders, equal concern must be shown for the
victims by at least providing compensation to them for their loss, agony, physical and mental
torture.

      It thus became important to gain knowledge about victims of crime, the struggles faced by
such people in coping with the adverse effects of a criminal act, and how could the Justice
System compensate and rehabilitate such victims.

     The study of victims or victimology is a relatively new field of academic research. Until few
decades ago it would have been difficult to have found any criminological agency (official,
professional, voluntary or other) or research group working in the field of victims of crime, or
which considered crime victims as having any central relevance to the subject apart from being a
sad product of the activity under study, i.e., criminality.

Victimology has from its inception adopted an interdisciplinary approach to its subject matter.
The purpose of the study of victimology is:

I. to enhance our understanding regarding victims and impact of crime on them.

II. To analyse the magnitude of the victim’s problem
III. To explain causes of victimization, and
IV. To develop a system of measures to reduce victimization.

Victimology: Meaning, Nature and Scope

Meaning:

Victimology may be defined as the scientific study of victimization, including the relationships

between victims and offenders, the interactions between the victims and the criminal justice
system; that is, the police and courts, and correctional officials. It also includes connections
between victims and other social groups and institutions, such as the media, businesses and
social movements.

In a narrow sense, victimology is empirical, factual study of victims of crime and as such is
closely related to criminology and thus maybe regarded as a part of the general problem of
crime.

In broader sense, victimology is the entire body of knowledge regarding victims, victimization

and the efforts of society to perverse the rights of the victim. Hence, it is composed of
knowledge drawn from such fields as criminology, law, medicine, psychology, social work,
politics, education and public administration.

The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship
due to any cause and one of such causes maybe crime. Therefore, victimology may be defined as
a study of people who experience injury or hardship due to any cause. It involves study of victim
characteristics and maybe called ‘victim profiling’.
Some Definitions:

Schultz (1970)-

“Victimology is the study of degree of and type of participation of the victim in the genesis or
development of the offences and an evaluation of what is just and proper for the victim’s
welfare.”

Drapkin and Viano (1974)-

“Victimology is the branch of criminology which primarily studies the victims of crime and
everything that is connected with such a victim.”

Victimology has thus emerged as a branch of criminology dealing exclusively dealing

exclusively with the victims of crime who need to be treated with compassion and rendered
compensation and assistance under the criminal justice system.

Nature:

Whether victimology is part of criminology?

There is a constant strife on this topic. According to Kirchhoff, “there is a criminology that calls
itself victimology when analyzing problems from a victim’s perspective.” But victimology is not
criminological victimology. Historically, however, victimology bloomed in criminology but
victimologists started asking different questions and they developed different strata of interests
and explanations. Though victimology has close connection to the concept of crime, the focus of
victimology is the victim and not the whole social structure and role of crime and criminal law in
it. Hence, victimology is now evolved into an independent subject matter of study.

The Science of victimology

In the first symposium of Victimology held in Jerusalem it was stated that, “Victimology is the
scientific study of victimization, including the relationships between victims and offenders, the
interactions between victims and the criminal justice system- that is, the police and courts and
the correctional officials, and the connection between victims and other societal groups and
institutions, such as the media, businesses and social movements.

Victimology as a science cannot be isolated from reality, even difficult realities. Science needs to
go beyond the purely observable ‘fact’ of victimization. Therefore, victimology as a science
requires an analysis and interpretation of victimization.

Whether victimology is science or service?

The Vienna Declaration on Crime and Justice in 2000 declared that “We establish 2000 as a
target date for states to review their relevant practices, to develop further victim support services
and awareness campaigns on the rights of victims and to consider establishment of funds for the
victims, in addition to developing and implementing witness protection policies.” Thus,
victimology is also a service.

Whether victimology is blaming the victim?

One aspect of victimology is blaming the victim for his own plight. However, most
victimologists reject theories of “victim blaming”. They simply explore the process of
victimization with the goal of understanding it and preventing it.

Scope of Victimology

The victim is the forgotten party in the criminal justice system. It would be factually wrong if
this type of criticism would still be maintained today. Victimology has come of age. Victims,
their needs and their rights, are being consistently acknowledged in words, if not in deeds.

Victimology is study of crime from victim’s point of view:

Victimology is study of crime from victim’s point of view. After the Second World War the
plight of victims was seriously considered by many criminologists in Europe. B. Mendelsohn
developed this branch of criminology as there was growing concern for the plight of victims of
all crime. The First International Conference on Victimology under the auspices United Nations
was held in Jerusalem in the year 1973 followed by another conference in Boston in 1976. There
are many seminars and studies on victimology at the regional, national and international level
highlighting the problems of victims, legal position of victims in criminal proceedings,
compensation for victims.

Victimology analysis the victim-offender relations and the interactions between victims and the
criminal justice system:

The process of being a victim involves two dimensions, individual and societal. It is therefore
incumbent upon victimology to develop theoretical models that cut across levels of analysis and
which incorporate the dynamics of normal social intercourse as a basis of understanding how
victims cope and in addressing victim needs. There are three interfacing roles:

I. Victim
II. Persecutor
III. Rescuer

The victim requires a ‘persecutor’ the one who victimizes and the process is complete when
there is a ‘rescuer’, one who saves the persecutor.

Victim of abuse of power:

Term ‘victim of abuse of power’ is such a broad and ambiguous concept that sometimes it is
argued that this concept includes, for example, abuse of power between States or between races,
and even economic exploitation of employees and consumers by large enterprises. An important
object of the criminal justice system is to ensure justice to the victims, yet he/she is not given any
substantial right, not even to participate in the criminal proceedings. To achieve this goal,
training and education in victimology by trained professionals of criminal justice will help.

‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ (UN,
1985) also defines the victims of abuse of power like the victims of crime. The suffering through
impairment of fundamental rights is included. The Declaration makes it clear that far more
victimization occurs as a result of the actions of governments and business institutions than ever
arises from what are defined as crimes under national laws.

Victimology is study of restitution and compensation of the damages caused to the victim
by the perpetrator of crime:

Modern state is a welfare state in which the welfare of its citizens is of paramount importance.
With new developments in the field of victimology, the victims of crime have assumed a
significant role. Now, efforts are made to provide restitution to the victims. Compensation is
given with the object of making good the loss sustained by the victims or the legal
representatives of the deceased.

Victimology is the study of Victimological clinic:

If we look at clinical victimological work, the treatment of victims, we have not only to look at
hospitals; we have to look at whole array of victim assistance organizations who are actively
working to alleviate the burden of victimization.

Thus, it is important to understand:

Victim’s crime-related mental health problems

What aspects of the criminal justice system process are stressful to victims?

What can be done to help victims with their crime-related health problems and stress regarding
the criminal justice system?

Qs. Problems of victims and victim compensation Laws in India.

Ans. Who is a victim of crime

I. Any person, group, or entity who have suffered harm, injury or loss due to illegal
activities of others. The harm may be economical, mental, or physical.
II. Thus any person who has suffered harm because of violation of criminal law is a victim.
III. A person will be considered as a victim even when the offender is not identified or
prosecuted.  Term victim also includes individuals who have suffered harm as a result of
assisting victims in distress or to prevent victimization.
IV. Not only the person who suffered loss or injury are the victim, but in some cases, the near
and dear of victims (family members) are also the victims.

Can a victim of crime get compensation in India

Yes. A victim of the offence can get compensation in India. But there is a procedure which needs
to be followed. We will discuss the procedure at length in the later part of this article.

The compensation has to be ordered by the court. Compensation can be sought through the
procedure established by the court. Compensation is awarded for material as well as non-material
damages.

Material damages include medical expenses, loss of livelihood, etc. Non-material damages

include pain, suffering, mental trauma, etc. In criminal cases, the victims can directly apply for
the compensation, and it is the duty of the lawyer representing the victim to demand such
compensation.

Laws governing compensation of victims of crime in India

The provisions relating to compensation to victims of crime are contained in sections 357,
357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973.

Constitution of India also provides for certain safeguards to the victim of crime. Article 14 and
21 of the Constitution supports the argument.

Victim compensation under The Code of Criminal Procedure, 1973

WHERE CONVICTION AND FINE IS PART OF THE SENTENCE

When an accused is proven guilty, and the court passes an order which contains a fine of any
denomination, the court can order such fine or any part of it to be paid to the victim of crime.
The fine imposed is utilised to compensate the victim of fine in the following ways.

1 Compensating for the expenses incurred during litigation (357 1 a)

This is the essential relief which a victim of a crime must get. Litigation costs in India are very
arbitrary. The lawyer charges hefty amount. Getting justice at times adds to the burden of the
victim itself. Instead of getting justice, the victim is trapped in the honeycomb of justice delivery
system.

The court knows this fact and thus, compensate victim by providing them the expenses incurred
during litigation.
2 Compensation for loss or injury to be recovered by the civil court

If the court is of the view that, the compensation sought is beyond the jurisdiction of the court,
the court itself orders the appropriate court to look into the matter.

In the payment to any person of compensation for any loss or injury caused by the offence, when
compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

3 Compensation in case of death

One might question the fact that, who is the victim where death has been caused? As the victim
is already dead, who should be compensated for the crime?

It is the family of the victim. Think of the mental trauma they might have gone through. Medical
expenses incurred, expenses during last rites. What if the victim who died was the sole bread
earner of the family?

The Court is well aware of such situation. Therefore, the legislature and the judiciary tied their
hands to do complete justice.

Victims are entitled to recover damages from the person sentenced for the loss resulting to them
from such death. When any person is convicted of any offence for having caused the lives of
another person or of having abetted the commission of such a crime.

4 Compensation of victim of crime in offences like theft, cheating, criminal breach of

trust, etc

In cases of crime such as theft, cheating, criminal breach of trust, criminal misappropriation, the
Court either tries for recovery of goods and in the case where recovery is not possible court
orders for compensation for the price of such goods.

VICTIM COMPENSATION SCHEME

In 2009, the central government gave directions to every state to prepare a scheme which has to
be in agreement with the center’s scheme for victim compensation. The primary purpose of the
scheme is to provide funds for the purpose of compensation to the victim or his dependents who
have suffered loss or injury as a result of the crime and who require rehabilitation.

Quantum of compensation under the scheme

It is the court which orders that the victim who suffered loss needs to get compensated. Under
the scheme, whenever a recommendation is made by the Court for compensation, the District
Legal Service Authority or the State Legal Service Authority, as the case may be,  decides the
quantum of compensation to be awarded.
Compensation in cases where the accused is not found guilty or the culprits are not traced

Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the
court may make a recommendation for compensation.

Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State or the District
Legal Services Authority for an award of compensation.

Who is to provide compensation in the above case

The State or the District Legal Services Authority shall, after due enquiry-award adequate
compensation by completing the inquiry within two months.

Also, it is the duty of the State or the district legal service authority to provide an immediate
first-aid facility or medical benefits to the victim free of cost on the certificate of the police.

Treatment of victim of crime

All hospitals, public or private, whether run by the Central Government, the State Government,
local bodies or any other person, shall immediately, provide the first-aid or medical treatment,
free of cost, to the victims of any offence covered under the following of the Indian Penal Code,

I. 376 (Rape)
II. 376A (intercourse by a man with his wife during separation)
III. 376 B (intercourse by a public servant with a woman in his custody), 376 C (Intercourse
by superintendent of jail or a remand home), 376 D (intercourse by any member of the
staff of a hospital with any woman in that hospital) of the Indian Penal Code.
IV. 376 C (Intercourse by superintendent of jail or a remand home),
V. 376 D (intercourse by any member of the staff of a hospital with any woman in that
hospital) of the Indian Penal Code

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the compensation awarded
under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or
discharge and the victim has to be rehabilitated, it may make a recommendation for
compensation.

When is the compensation to be provided

Along with the duty of the offender, it is the duty of the state too, to compensate the victim.
Compensation to the victim of crime can be provided:

At the conclusion of the trial. That is on the orders of the court.

When inadequate compensation is granted by the lower court to the victim of crime, the
Appellate Court might increase the compensation.

Where accused is not traceable, it becomes the duty of the state to compensate the victim of the
crime.

CENTRAL VICTIM COMPENSATION FUND SCHEME

The Central government in 2015 formulated the CVCF scheme to compensate the determined.
Every state has their own guidelines which decide the procedure.

An attempt has been made by iPleaders to bring forth the procedure by examining different
scheme of the different states. This is a standard procedure which one might follow. To know the
exact step by step procedure, please see your state’s guidelines on Victim compensation fund.

Step 1 Making an application before the District/State  Legal Service Authority

An application can be made for temporary or final compensation. It can be filed by the Victims
or their dependents or the SHO of the area.

The application must be submitted along with a copy of the First Information Report (FIR),
medical report, death certificate, if available, copy of judgment/ recommendation of court if the
trial is over, to the State or District Legal Services Authority

Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific loss,
injury, rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

I. The gravity of the offence and the loss suffered by the victim.
II. Medical expenditure incurred during treatment.
III. Loss of livelihood as a result of injury or trauma.
IV. Whether the crime was a single isolated event (Example Theft) or whether it took place
over an extended period of time (Example multiple times, Rape with a woman who has
been locked in a house)
V. Whether the victim became pregnant as a result of such offence.
VI. In the case of death, the age of deceased, his monthly income, the number of dependents,
life expectancy, future promotional/growth prospects etc.
VII. Or any other factor which the Legal Service Authority might deem fit.

Step 4 Method of disbursement of compensation

The amount of compensation so awarded shall be disbursed by the respective Legal Service
Authority by depositing the same in a Nationalized Bank in the joint or single name of the
victim/dependent(s).

Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in a fixed
deposit for a minimum period of three years.

The remaining 25% (twenty-five percent) shall be available for utilization and initial expenses by
the victim/dependent(s), as the case may be.

In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in the
fixed deposit account and shall be drawn only on attainment of the age of majority, but not
before three years of the deposit

Police system in India and necessary reforms.

Liability of Police for custodial violence