KAMKUS COLLEGE OF LAW

LL.B. IV SEM
CRIMINOLOGY AND PENOLOGY
CODE – (K-4004)

Detailed Questions Answers

Q.1. “Criminology is the body of knowledge regarding crime as a social

phenomenon which includes the processes of making laws, braking laws and
reaction to breaking laws.”
Ans. "Criminology is the body of knowledge regarding delinquency and crime as a social
phenomena. It includes within its scope the process of making laws, breaking laws, and of
reacting toward the breaking of laws. These processes are three aspects of a somewhat unified
sequence of interactions. The objective of criminology is the development of a body of general
and verified and principles and of other types of knowledge regarding this process of law,
crime, and reaction to crime."
(Edwin Sutherland, 1974: 3)
Edwin H. Sutherland
Differential Association Theory
Sutherland asserts that the excess of definitions favorable to deviance over definitions
unfavorable to violation of law enforces a person become a deviant while associating with other
persons.
Criminal behavior is learnable and learned in interaction with other deviant persons. Through
this association, they learn not only techniques of certain crimes, but also specific rationale,
motives and so on. These associations vary in frequency, duration, etc. Differential association
theory explains why any individual forwards toward deviant behavior. His assertion is most
useful when explaining peer influences among deviant youths or special mechanism of becoming
certain criminal.
Differential Association Theory
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Differential association theory was Sutherland's major sociological contribution to criminology;

similar in importance to strain theory and social control theory. These theories all explain
deviance in terms of the individual's social relationships.
Sutherland's theory departs from the pathological perspective and biological perspective by
attributing the cause of crime to the social context of individuals. "He rejected biological
determinism and the extreme individualism of psychiatry, as well as economic explanations of
crime. His search for an alternative understanding of crime led to the development of differential
association theory. In contrast to both classical and biological theories, differential association
theory poses no obvious threats to the humane treatment of those identified as
criminals."(Gaylord, 1988:1)
The principle of differential association asserts that a person becomes delinquent because of an
"excess" of definitions favorable to violation of law over definitions unfavorable to violation of
law. In other word, criminal behavior emerges when one is exposed to more social message
favoring conduct than pro-social messages (Sutherland, 1947).
Sutherland argued that the concept of differential association and differential social organization
could be applied to the individual level and to aggregation (or group) level respectively. While
differential association theory explains why any individual gravitates toward criminal behavior,
differential social organization explains why crime rates of different social entities different from
each other's.
The first explicit statement of the theory of differential association appears in the 1939 edition
of Principles of Criminology and in the fourth edition of it, he presented his final theory. His
theory has 9 basic postulates:
1. Criminal behavior is learned.
This means that criminal behavior is not inherited, as such; also the person who is not already
trained in crime does not invent criminal behavior.
2. Criminal behavior is learned in interaction with other persons in a process of communication.
This communication is verbal in many cases but includes gestures.

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3. The principal part of the learning of criminal behavior occurs within intimate personal groups.
Negatively, this means the impersonal communication, such as movies or newspaper play a
relatively unimportant part in committing criminal behavior.
4. When criminal behavior is learned, the learning includes (a) techniques of committing the
crime, which are sometimes very simple; (b) the specific direction of motives, drives,
rationalizations, and attitudes.
5. The specific direction of the motives and drives is learned from definitions of the legal codes
as favorable or unfavorable.
This different context of situation usually is found in US where culture conflict in relation to the
legal code exists.
6. A person becomes delinquent because of an excess of definitions favorable to violation of law
over definitions unfavorable to violation of law.
This is the principle of differential association. When people become criminal, they do so not
only because of contacts with criminal patterns but also because of isolation from anticriminal
patterns. Negatively, this means that association which is neutral so far as crime is concerned
have little or no effect on the genesis of criminal behavior.
7. Differential association may vary in frequency, duration, priority, and intensity.
Priority seems to be important principally through its selective influence and intensity has to do
with such things as the prestige of the source of a criminal or anti-criminal pattern and with
emotional reactions related to the association. These modalities would be rated in quantitative
form and mathematical ratio but development of formula in this sense has not been developed
and would be very difficult.
8. The process of learning criminal behavior by association with criminal and anti-criminal
patterns involves all of the mechanisms that are involved in any other learning.
Negatively, this means that the learning of criminal behavior is not restricted to the process of
imitation. A person who is seduced, for instance, learns criminal behavior by association, but this
would not be ordinarily described as imitation.
9. While criminal behavior is an expression of general needs and values, it is not explained by
those general needs and values since non-criminal behavior is an expression of the same needs

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and values. Thieves generally steal in order to secure money, but likewise honest laborers work
in order to money. The attempts to explain criminal behavior by general drives and values such
as the money motive have been, and must completely to be, futile, since they explain lawful
behavior as completely as they explain criminal behavior. They are similar to respiration, which
is necessary for any behavior, but which does not differentiate criminal from noncriminal
behavior. (Sutherland, 1974: 75-76)
In summary, he believed that an individual’s associations are determined in a general context of
social organization (for instance, family income as a factor of determining residence of family
and in many cases, delinquency rate is largely related to the rental value of houses) and thus
differential group organization as an explanation of various crime rates is consistent with the
differential association theory. (Sutherland, 1974: 77)
Much of Sutherland’s theory relied upon the work of Chicago school theorists, Shaw and
McKay (1931,1969). According to Shaw and McKay, they found that "delinquency rates
increased as one moved away from the center of the city, and ecological rates of delinquency
remained stable over generations despite a complete turnover of ethnic composition and social
disorganization explained the high rates of delinquency in the inner-city." (Matsueda: 1988:
280) As a matter of fact, this statement requires qualification because once you pass through the
zone in transition, delinquency rates drop as you move out towards the suburbs.
A second contribution to differential association was Sellin, Wirth and Sutherland's works on the
influenced of culture conflict on crime. They claimed that crime in modern societies is rooted in
the conflict of competing cultures. Different crime rates were explained by the culture conflict
approach.
A third factor was drawn from his own interviews, particularly those of Chic Conwell done for
The Professional Thief. Sutherland concluded that not everyone can become a professional thief,
but rather one must be accepted into a group of professional thieves and then indoctrinated into
the profession (Matsueda: 1988: 280). In the book, he emphasized differential association by
saying that "the final definition of the professional thief is found within the differential
association. A person who is received in the group and recognized as a professional thief is a
professional thief. The differential element in the association of thieves is primarily functional

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rather than geographical." (Jacoby, 1994:11) In sum, he showed general characteristic of

professional thief and their peculiar way of living in detail in terms of differential association:
The professional thief is one who steals professionally. He makes a regular business of stealing
and every act is carefully planned. He has different technical skills and methods that are different
from those of other professional criminals. He is generally migratory and may work in all the
cities of the U.S.
The attitude of one thief toward another is very friendly. Not only does one thief warn another
thief of danger but also he avoids doing things that will put other thieves in danger. Thieves also
give much assistance to other thieves who are in trouble. Personal feelings seldom affect this.
Thieves are all professionally united against law-enforcement bodies, which are the only
common to all thieves.
Codes of ethics are much more binding among thieves than among legitimate commercial firms.
They seldom betray other thieves. Prisoners squawk (inform) for one purpose only-to relieve
themselves of punishment. The worst penalty is to keep him broke by spreading the news that he
has squawked, which makes it impossible for him to get into any mob.
If one mob come into a place and finds another mob already at work, it will leave at once. It is
partly from professional courtesy and partly for safety.
The professional thief lives in the underworld and has sympathetic and congenial relationships
there. Because the underworld is an exclusive society, it is necessary that the stranger be
identified before he is admitted. The language of the underworld is both an evidence of this
isolation of the underworld and also a means of identification. (ex. nailed=arrested,
shed=railroad station) What he knows about these mutual acquaintances will show whether he is
trustworthy.
A person can become a professional thief only if he is trained by those who are already
professionals. (Sutherland, 1937, 3-26)
His theory is based upon two major assumptions:
"(1) deviance occurs when people define a certain human situation as an appropriate occasion
for violating social norms or criminal laws and

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(2) Definitions of the situation are acquired through an individual’s history of past experience,
particularly in terms of past associations with others." (Pfohl, 1994: 302). By doing so, people
make their own subjective definitions of their situation in life.
Sutherland did not mean that mere association with criminals would lead to criminal behavior,
which was often misunderstood by other critics, but he viewed crime as a consequence of
conflicting values. Individuals with an excess of criminal definitions will be more susceptible to
new criminal definitions and that individual will be less receptive to anti criminal definitions.
In his last major book, White Collar Crime, he analyzed the crimes committed by American
corporations and executives and pointed out the bias inherent in statistics such as UCR that
lacked data of white-collar crime. He raised doubt about the reliability and validity of
conventional data and claimed "white collar offenses should be included in the data analyzed by
criminologists, just as juvenile offenses are included in those data." He believed that
"conventional generalizations about crime and criminality are invalid because they explain only
the crime of the lower classes, at most.”(Sutherland, 1949: x).
According to Sutherland, it is important to note that there are significant dangers in
conventional explanations drawn from biased samples. If statistics are valid and reliable, they
should be free of sampling error.
First error of criminal statistics originates from the defects of UCR report. The number of crimes
known to the police is much smaller than the number actual crime. Victims may consider the
crime not worth reporting. And the number of crimes is accurate only when the police are honest,
and consistent in making their reports. Moreover, variation in the criminal law may affect the
volume of crimes known to the police. Behavior that is criminal in one place or time may not be
criminal in another place or time.
The second error is the problem of white-collar crime. Even though the by-far more serious
danger of white-collar crime to society in terms of effect on private property and social
institutions, these tend not to be included in statistics, whether official or not. This resulted from
the difficulty of detecting and punishing this crime.
Accordingly, he denied conventional theories by arguing that:

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The theory that criminal behavior in general is due either to poverty or to the psychopathic and
sociopathic conditions with poverty can now be shown to be invalid for three reasons. First, the
generalization is based on a biased sample that omits almost entirely the behavior of white-collar
criminals. Second, the generalization that criminality is closely associated with poverty
obviously does not apply to white-collar criminals because without small exception, by and
large, they are not poor. Third, the conventional theories do not even explain lower class
criminality. (Jacoby, 1994: 24-25)
Criticism and Contemporary Views
Many criticized Sutherland's differential association theory; supporters argued that criticism
often resulted from misinterpretation of Sutherland's theory.
Donald R. Cressey argued persuasively that many of the critiques were simply "literary errors"
or misinterpretation on the part of the critics. For example, the theory was judged by critics to be
invalid because not everyone who had come into contact with criminals became criminal as a
result. This misinterprets the theory's proposition that criminal behavior is learned through
differential association (relative exposure to criminal and noncriminal patterns) not simply
through any contact with persons who have violated the law. (Akers: 1996:229)
However, Cressey also pointed out two major weaknesses of Sutherland's theory:
The first problem was that the concept of "definitions" in the theory was not precisely defined,
and the statement did not give good guidance on how to operationalize the ratio or "excess of
definitions" favorable to criminal behavior over definitions unfavorable to criminal behavior.
The second real problem was that it left the learning process unspecified. There is virtually no
clue in Sutherland's theory as to what in particular would be included in "all the mechanisms
that are involved in any of other learning (Akers: 1996:229-230)
Another important criticism argued that Sutherland's theory is a "cultural deviance" theory as a
way of showing that it made wrong presumptions about human behavior and the role of culture
in deviant behavior. Matsueda (1988) believed it "reduces his (Sutherland’s) theory to a
caricature" and Bernard objected to the way in which "the cultural deviance label has been
applied to the original differential association and social learning revision"(Bernard and

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Snipes, 1995: Vold and Bernard, 1986: 227-229) But Akers denies this criticism as another
misinterpretation of Sutherland's theory:
According to this critique, differential association/social learning theory rests on the assumption
that socialization is completely successful and that cultural variability is unlimited, cannot
explain individual differences in deviance within the same group and applies only to group
differences, has no way of explaining violation of norms to which the individual subscribes, and
proposes culture as the single cause of crime. I conclude that the usual attribution of cultural
deviance assumptions and explanation to differential association is based on misinterpretations.
(Akers: 1996:229)
Perhaps the most fundamental research problem involves identifying the content of definitions
favorable to crime. This is related to the criticism that differential association theory cannot be
tested empirically. (Matsueda, 1988: 296)
Warr and Stafford (1991:862) studied the mechanism by which delinquency is socially
transmitted. They compared the effect of peer’s attitude and effect of peer’s behavior and found
that delinquency stemmed rather from behavior of peers than the consequence of attitudes
acquired from peers. This means that Sutherland’s assertion that attitude of peers is major factor
of delinquency is incomplete. The attitudes of adolescents indeed do influent delinquency.
"However, quite apart from the attitudes of adolescents and those of their friends, the
behavior of friends has a strong, independent effect on adolescents’ behavior.”
Differential association has been subject to a number of other criticisms.
"-is defective because it omits consideration of free will,
-is based on a psychology assuming rational deliberation,
-ignores the role of the victim,
-does not explain the origin of crime,
-does not define terms such as "systematic" and "excess",
-does not take "biological factors" into account,
-is of little or no value to "practical men”,
-is not comprehensive enough because it is not interdisciplinary,
-is not allied closely enough with more general sociological theory and research,

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-is too comprehensive because it applies to non-criminals, and

-assumes that all persons have equal access to criminal and anti-criminal behavior patterns."
(Sutherland, 1974: 82)
In terms of measurement problems, "The likelihood of deviant behavior could be determined by
calculating the difference between favorable and unfavorable associations. Yet, as Sutherland
recognized, the development of such a formula would be extremely difficult. Although the
importance of associations is obviously influenced by such factors, the factors themselves are
difficult to reliably measure in any standardized fashion." (Pfohl, 1994:303)
Contemporary Popularity
Though its shortcomings, differential association theory still is popular among criminologists for
its simplicity and coherence.
According to Tittle (1986, 429), "despite some important anomalies, our findings support the
major theme of Sutherland's thinking. Association with criminal definitions does seem to be a
generator of crime, and it appears to be exercise its influence indirectly through its effects on a
learned symbolic construct-motivation to engage in criminal behavior.”
Skinner and Fream demonstrate that measures of differential association, differential
reinforcement and punishment, definitions and sources of imitation are significantly related to
computer crime. (Skinner and Fream, 1997: 495) According to them, social learning theory
provides an ideal explanation of computer crime. "Social learning theory is organized around
four major concepts: differential association, differential reinforcement/punishment, definitions,
and imitation. Differential association refers to the process by which individuals operating in
different social contexts, become exposed to, and ultimately learn, normative definitions
favorable and unfavorable to criminal and legal behavior (Akers 1994)". Although family and
peer groups tend to be important differential association, other social context such as schools can
be equally important to learning normative definitions. Differential reinforcement and
punishment refers to "the balance of social nonsocial rewards and punishments associated with
behavior. As Akers (1997) contends, positive reinforces (e.g., approval from friends, family,
teachers) and negative reinforcers (e.g., the avoidance of unpleasant experiences) tend to

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increase the likelihood that a certain act will occur. Imitation refers to the modeling of certain
behavior through the observation of others" (Skinner and Fream, 1997: 498-499)
While proponents of differential association emphasize the influences of peer, control theorists
such as Hirschi emphasized family, especially parent influence. Attempts have been made to
combine research in both areas. For example, Mark Warr found parental influence as a barrier
and peer influence as an instigator. (Warr, 1993: 248).

Sutherland and Cressey said that while crime is caused by differential association, the
probability of such differential association is a function of differential social organization. (1978)
Craig Reinarman and Jeffrey Fagan analyzed differential association in relation to a function of
differential social organization and found that association with and learning from delinquent
peers, as well as bonds to family, school, and community, are important correlates of
delinquency. (Craig Reinarman and Jeffrey Fagan: 1988: 307) However, they asserted that
though different social organization is important factor to explain a differential association,
differential association is seldom varied by different social organization, which is contradict to
the assertion of Sutherland and Cressey.
Another approach by Douglas A. Smith and Robert Brame studied which models are more
appropriate to explain various dimensions of delinquency, especially initiation and continuation.
They found that "many variables are equally associated with decisions to begin and continue
offending. Other variables predict decisions to initiate or continue offending in different ways."
(Douglas A. Smith and Robert Brame, 1994: 625)
However, negative labeling was found to be one of the major factors causing persistent
delinquent behavior, while social control theory seems more applicable to initiation of
delinquency than continuation. (Douglas A. Smith and Robert Brame, 1994)
Differential association theory suggests that association with others who are delinquent will
increase the likelihood of becoming and remaining delinquent. In this view, "peers can be crucial
role models for the development of values and beliefs favorable to law violation. That exposure
to delinquent peers will increase the probability of engaging in an initial act of delinquency and
the likelihood of delinquent behavior reoccurring."(Smith and Brame: 1994: 610-611)

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No one theory can perfectly explain every aspect of crime and deviant act. It needs to incorporate
various theories for better explanation. However, even though its some defects, Sutherland’s
differential association theory has much strength. Other social learning theories have been
influenced by differential association and many scholars are continuously trying to test
empirically the usefulness and validity of Sutherland's theory. Through these efforts,
Sutherland's theory is still being modified and is being developed in order to explain variety of
deviances.

Q.2 What is Criminology? Explain its scope and importance.

Or
Q. 2. Discuss the Scope of Criminology and write the importance of its study.
Or
Q.2. What do you understand by Criminology? Discuss its scope.

Ans. Criminology is the scientific study of crime, including its causes, responses by law
enforcement, and methods of prevention. It is a sub-group of sociology, which is the scientific
study of social behavior. There are many fields of study that are used in the field of criminology,
including biology, statistics, psychology, psychiatry, economics, and anthropology.
Just as criminology is a sub-group of sociology, criminology itself has several sub-groups,
including:
• Penology: the study of prisons and prison systems
• Bio-criminology: the study of the biological basis of criminal behavior
• Feminist criminology: the study of women and crime
• Criminalistics: the study of crime detection.
Definitions
Criminology is a combination of two Latin words:
Crimen – crime
Logus or logy – science

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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.
Definitions of Various Scholars
According to Edwin Sutherland
Criminology is the body of knowledge regarding crime as a social phenomenon. It includes
within its scope the processes of making laws, breaking laws and reacting towards the breaking
of law. (From the above definition it is apparent that criminology is a combination of how the
society defines and deals with crime within a social and legal context).
According to Donald Taft
Criminology may be divided into two branches:
1. General
2. Specific
Criminology in a general sense is the study of crime and criminals. In a specific sense it seeks
to study criminal behavior its goal being to reform the criminal behavior or conduct of the
individual which society condemns.
According to Webster
Criminology is the scientific study of crime as a social phenomenon or of criminals and their
behaviors and family conditions.
Criminology can thus be said to be and academic discipline that employs scientific methodology
to study crime, its major forms, its reasons for existence or causation and how the criminal
justice system can respond to crime. In its narrower sense, criminology looks at criminal
behavior of individuals in society and how they come to be perceived as such i.e. their social,
cultural and economic background. In a wider sense, it looks at how the criminal is dealt with
e.g. how he is punished and therefore includes penology.
Criminology as a subject therefore deals with:
• Criminal acts;
• The criminal;
• It indirectly deals with the victim of the crime;

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• Crime causation and theory;

• Crime prevention and detection of potential offenders;
• The efficacy of the criminal justice system.
Criminology borrows heavily from other sciences including biology (genetically make up of a
criminal) psychology) (thinking process of a criminal mind), psychiatry (mental stability and
inclination of a criminal), philosophy, general medicine etc.
Importance of Criminology
I. The most significant purpose of criminology is its concern for crime and criminals.
There is a basic assumption that no one is born a criminal. (Check out the Lombroso
theory). Reformation is therefore treated as the ultimate object of punishment while
“individualization” i.e. according individualized understanding and treatment is the
preferred method for such reformation.
II. It is important for lawyers(when dealing with criminal clients it helps to understand their
mind set and particular circumstances for purposes of giving proper legal advise as
well as for pursuing a logical line of defense), judicial officers(for purposes of
awarding appropriate sentencing, it is important for a judicial officer to not only
understand the offender, but the society/community’s perceptions and emotions on
given offences), law enforcement officers(for purposes of investigations,
prosecutions, surveillance and crime prevention, for those holding criminals such as
prison officers), social workers, psychologists, etc to understand the criminal more.
III. It enhances official understanding of criminals, offenders, the types and prevalence of
offences committed, generally or specifically by a class of people or in certain
localities. This kind of understanding supported by data is important for crime
detection and control. The government is enabled to plan better in terms of
allocation of resources towards fighting different types of crimes.
IV. The ultimate object of criminology is to render a crimeless society. (This is of course a
very remote possibility especially considering how crimes are created and the fact
that sometimes very legitimate behavior i.e. chang’aa drinking is criminalized).
Is Criminology a Science?
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Proponents of the view that criminology is not a science base their argument on the standards of
quality and validity of what can be classified as science. To this end they argue that the validity
of a science is based on two concepts:
I. Stability i.e. it must be firmly established with unlikelihood of ad hoc and unpredictable
changes
II. Homogeneity, i.e. the quality of being alike all of the same type.
Since crime is not stable, nor is it homogenous, i.e. not all actions amounting to a crime in one
jurisdiction will amount to crime in all jurisdictions, it is therefore concluded by the said
proponents that criminology cannot be a science.
Those Against
According to George Wilber- He argued that anti-social behavior in society cannot be
scientifically interpreted. According to him, general propositions of universal validity are the
essence of a science. Such propositions can only be made regarding stable and homogenous
units. Crime is not a stable homogenous unit but varies from place to place and from time to
time. What may be regarded as a crime in one jurisdiction may not be a crime in another e.g.
abortion, euthanasia, etc.
According to Max Weber (A German criminologist) -He argued that criminology as a branch of
sociology merely researches into components of human behavior without providing for solutions
unlike normal sciences. Thus by offering an analysis of criminal acts without punitive answers
it merely exposes a situation without a solution and thus cannot be called a science. (What
about penology which offers solutions, and arguments for rehabilitation and reintegration into
society, decriminalization, which are advanced by criminologists, it is therefore not entirely true
that criminology does not offer solutions in any case do all sciences offer punitive solutions).
According to Herman Manheim - He belongs to the school that argues that criminology is not a
science as it has no techniques and methods of its own, and that it borrows heavily from others
e.g. medicine, psychology etc. He argues that so far criminology has developed no scientific
methodology of its own; its techniques of research are on the whole identical with those used in
other social sciences.

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According to Ellen burger- In response to Manheim’s arguments; His response is that: - Even
amongst the natural sciences there are some like botany and zoology which deal with the study
of facts which are not strictly unique and individual and which do not deal with general
phenomena. Criminology is based on other social sciences just like medicine is based on
anatomy, physiology, physics, chemistry etc. Neither medicine nor criminology is purely
theoretical. They have a meaning which derives from their practical application. The
justification for medicine lies in the therapeutics and public health and that of criminology in
penal reform, penology and prevention of crime.
The Concept of Crime
The concept of crime is essentially concerned with social order. Generally, a crime can be
defined as an act fit for serious condemnation or an act that is frowned upon by society it may
start off as a moral wrong that is then elevated to a prohibited act for which the society ascribes
specific sanctions.
According to Kenny - He defined a crime as a wrong whose sanction is punitive and which is in
no way remissible by any private person but is remissible by the Crown.
According to Keeton - Defined a crime as an undesirable act which the state finds most
convenient to correct by the institution of proceedings for the infliction of a penalty rather than
leaving the remedy to the discretion of the injured person.
Sutherland - He defines criminal behavior as behavior which is in violation of criminal law. No
matter what the degree of immorality, reprehensibility, or indecency of an act, it is not a crime
unless it is prohibited by criminal law. Professor Sutherland further mentions seven attributes of
a crime.
a. Before a behavior can be called a crime there must be certain external consequences or
harm. A crime has a harmful impact on social interest.
b. The external consequences or harm shall be strictly forbidden. Anti-social behavior is not a
crime unless forbidden by law.
c. There must be intention.
d. Mens rea (a guilty mind) must be present
e. There must be fusion or concurrence of mens rea and intention

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f. There must be a causal relationship between the legally forbidden harm and the misconduct
g. There must a legally prescribed punishment.
Difficulties exist in the legal definition of crime such as:
• There is no universal concept of crime
• From time immemorial certain conduct or norms were permissible but these vary with
time and place.
From a legal point of view crime can be described as:
1. from the nature of the act itself.
a. It is a wrong which causes harm
b. It is a wrong against the whole community
c. It is a wrong that directly threatens the well-being and security of society.
2. from the proceedings (i.e., the process)
a. Crime is dealt with through criminal proceedings
b. It is an illegal act whose proceedings are initiated, stopped or pardoned by the state. (role of
AG, etc)
3. from the consequences
a. It is a wrong whose sanction is punishment
b. It is a wrong whose sanction is punitive and for which the state decides on the proceedings
and the nature of that punishment.
Nature and Scope of Criminology
Criminology is, ordinarily, the science of crime and seeks to study the phenomenon of
criminality in its entirety. Criminology as a branch of knowledge is concerned with those
particular conducts of individual behaviour which are prohibited by society. It is therefore a
societal study which seeks to discover the causes of criminality and suggest remedies to reduce
crimes.
Criminology consists of two main branches - criminal biology, which investigates causes of
criminality found in the mental and physical constitution of the deviant, 'and criminal sociology
which deals with enquiries into the effect of environment as a cause of criminality.

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Criminology, penology and criminal law are inter-related fields. Penology deals with the
custody, treatment, prevention and control of crimes. Criminal law seeks to implement policies
envisaged by criminology and penology (the formulation of criminal policy essentially depends
on crime causations and factors correlated therewith). The object of criminology is to study the
sequence of law making, law-breaking and reaction to law breaking from the point of view of the
efficiency of law as a method of control.
The science of criminology aims at taking up case to case study of different crimes and suggests
measures to 'reform' the offenders. Liberalization of punishment for affording greater
opportunities for rehabilitation of offenders has been accepted as the ultimate object of penal
justice.
The most significant aspect of criminology is its concern for crime and criminals. It presupposes
the study of criminal with basic assumption that no one is born criminal. It treats reformation as
the ultimate object of punishment while individualization (treatment accorded to each individual
according to his personality) the method of it.
Criminology also seeks to create conditions conducive to social solidarity in as much as it tries
to point out what behaviors are obnoxious and anti-social. The ultimate object is to render a
crimeless society so far as possible with a view to achieving social harmony.

Q3. What do you mean by Juvenile Delinquency? What are the main causes of
juvenile delinquency? Explain.
Or
Q.3. Discuss the main causes of Juvenile Delinquency.

Ans. Juvenile Delinquency

Juvenile delinquency is a universal phenomenon. Every element which prevents children from
developing in a healthy way, both physically and emotionally, tends to bring about a pattern of
emotional disturbances, which is always at the root of antisocial or criminal behavior. Such
behavior when found in youngsters, is called juvenile delinquency. Juvenile delinquency, then,
involves any criminal act against persons or property committed by a child. According to law a
child is responsible for his crime after the age of seven and is considered juvenile until he is

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sixteen, seventeen or eighteen. Because in the eye of law any person who is seven years of age or
of such age as by the law of the land concerned, is deemed to be of sufficient mature
understanding, can be held liable if he/she commits any crime; in that case he may be termed as a
“criminal “ except in case of insanity.
Juvenile delinquency is, thus, a syndrome, it is a gateway to adult crime, and since a large
percentage of criminal careers have their roots in childhood. It is a problem that has been causing
serious concern all over the world.
Even in the developed countries the number of cases of juvenile delinquencies is increasing
every year, notwithstanding the high standard of living and availability of all kinds of necessities,
amenities and luxuries, besides compulsory education up to a fairly high age. In fact, the problem
in developed countries is more complex and deep-rooted than in developing countries.
The causal factors of juvenile delinquency can be broadly classified into two categories-
(I) Individualistic causes and
(2) Social or Environmental causes.
The social, psychological or environmental causes can be further sub-divided into two
sub-headings-
(a) Causes pertaining to family, and
(b) Causes pertaining to social environment.
Individualistic Causes
(i) If a child is suffering from some physical defect or disorder, he begins to feel that
something is lacking in him or her. In case the physical defect is laughed at, there is every
possibility that the child may adopt antisocial behaviour which would be on account of reaction
formation against the law of the society. The child will then wish to destroy the social norms and
will consider that the society is responsible for his defect.
(ii) In case the motor and physical development of a child is more rapid or slower than an
average child at that age, than adjustment difficulties are usually created and the child may adopt
delinquent behaviour.
(iii) Often low intelligence also encourages anti-social behaviour. A child who is of low
intelligence can be easily attracted towards anti-social behaviour.

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(iv) Some children also become delinquents on account of physiological disorders in them. Such
delinquents are considered as “temperamental delinquent”. For example, some girls show
delinquent behaviour during their menses. The above are the major biological determinants or
Individualistic causes which are believed to have some connections with delinquencies of
children.
Causes Pertaining to Family Environment
The causes/ factors pertaining to unfavourable family environment may be summarized as
follows:
(i) Presence of step-mother or step-father
(ii) Lack of parental affection, care and control,
(iii) quarrels among parents,
(iv) Poverty, so that the basic needs of the children are not satisfied,
(v) Use of alcohol and other drugs by the parents
(vi) High ambitions of parents which they want to realize through the achievements of their
children.
(vii) Loose or very strict discipline at home,
(viii) Broken home- -divorce, separation or death of any one of the parents,
(ix) Mother being in service, no control over the children
(x) Sexual defect in mother, or her being of low character, mental abnormality in the mother
or father etc.
Causes Pertaining to Social Environment
The factors/ determinants available in the social environment which induce children to exhibit
deviant or delinquent behaviour, can be summarized as follows:
(i) Separation of youths, that is, marginal status of adolescents in society which results
in a feeling of isolation and a feeling of not being a part of the com m unity or society. This
separation also results in peer group’s considerable influence on the youths, and this influence
extends to alcohol and drug use, as well as other anti-social activities. M ore over extensive
separation of youths from adults and lack of positive peer support may also result in isolation
from the mainstream of interaction, and then the reaction to this situation would be some sort of
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deviant behaviour. The technical terminology for this phenomenon is “anomie”- a feeling of
isolation (Anomie Theory---Emile Durkheim ).
(ii) The discrepancy between the social or cultural goals that the individual learn to aspire in
their environment and the institutionalized means available for achieving those goals, may result
in strain or frustration in the minds of the youths. This strain or frustration can produce
behaviour that is deviant, anti-social or contrary to the norm s of the society.
(iii) Economic determinism which dictates unequal distribution and consumption of goods,
may also be cited as a cause of delinquency. Economic status has a great deal to do with the rate
of delinquent behaviour. The greater economic deprivation the greater delinquency it is felt that
person in economically disadvantageous position often has the same material aspirations as
persons in economic advantageous position. This disparity very often creates situation conducive
to deviancy, delinquency and crimes. Moreover, industrialization which results in urbanization,
slum dwelling etc. is also a determinant for rise of delinquent behaviour in children. Small
children, who are employed in factories and industries, very often show delinquent or deviant
behaviour because of their economic condition, isolation from the affordable section, etc.
(iv) Association of youths with other delinquents, drug- addicts, criminals and maladjusted
children also results in deviant or delinquent behaviour in children. Because, if individuals
associate mostly with delinquents or criminals, or mal-adjusted individuals, chances are that they
will become involved in delinquent activities. (Theory of Differential Association— Edwin
Sutherland)
(v) In addition to family, community, religious institutions and the school play an important
role in socializing children, in the contemporary schools which are purveyors of middle class
values, only the students who fit within the modern school systems are likely to do well and
profit from their schooling. But those who are not so lucky— who are intellectually, socially,
emotionally or economically deprived— have difficult times in meeting their expectations and
likely to become delinquents.
(vi) Besides these, media influence and subsequent information explosion may also be blamed
for the rise in delinquent activities of children.

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Q.4 Discuss in brief the various schools of Criminology.

Ans. Various Schools of Criminology
I. Pre-Classical School or Demonological Theory
Being one of the oldest theory of the causes of crimes based on a general belief that man by
nature is simple and his actions are controlled by some super power. A man commits crime due
to the influence of some external spirit called ‘demon’ or ‘devil’. Thus, an offender commits a
wrongful act not because of his free will but due to the influence of some super power.
Criticism – They considered crime and criminals as an evidence of the fact that the individual
was possessed of devil, or demon and the cure for which was testimony of the effectiveness of
the spirit. Worships, sacrifices and ordeal by water and fire were usually prescribed to specify
the spirit and relieve the victim from its evil influence.
The evolution of criminal law was yet at a rudimentary stage. Hobbes suggested that fear of
punishment at the hands of monarch was a sufficient deterrent for the members of early society
to keep them away from sinful acts which were synonymous to crimes.
The pre-classical thinking however, withered away with the lapse of time and advancement of
knowledge.
II. The Classical School Or Free Will Theory
Beccaria, the pioneer of modern criminology, laid greater emphasis on mental phenomenon of
the individual and attributed crime to ‘free will’ of the individual. Thus, he was much influenced
by the utilitarian philosophy of his time which placed reliance on Hedonism, namely, the “Pain
and Pleasure Theory”.
Features: Shifted focus on the personality of an offender rather than religious fallacies and
myths.
The main principles of classical school of criminology are as under-
1) Reasoning rather than fear is responsible for behaviour.
2) Act rather than intent is the basis of criminality.
3) Punishment through pain, humiliation and disgrace is the principal method to curb
crime.
4) Prevention of crime is more important than punishment.
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5) Punishment should be individualised keeping in view the pleasure derived.It should be

equal for all.
6) Arbitrary powers of judges and torturous punishments are a strict no. Criminal law should
be based on positive sanctions.
Criticism
No attention to the state of mind.
No distinction between first vs habitual offenders.
III. Neo-Classical School
1) Based on Scientific approach. Extenuating situations or mental disorders play a
significant role. The rule of equal punishment for all as advocated by Classical school is not
correct.
2) Distinction between first offenders and recidivists. Some attention to be given to mental
causation.
3) Normal person is self-determining and responsible for his conduct. But those lacking
normal intelligence need to be treated differently.
4) All criminals whether responsible or irresponsible must be kept away from society
5) This theory paved the way for different correctional institutions such as parole, probation,
reformatories, open air camps etc.
6) Based on subjective approach concentrating on the conditions under which an individual
commits crime.
IV. Positive School
Neither free will as suggested by classical nor innate depravity as suggested by neo classical is
the real cause. Real cause is anthropological features of a criminal.
Main exponents of this theory are:
(1) Cesare Lombroso (1836-1909)-(Italian Psychatrist)-laid emphasis on the fact that
individual is the centre point of penology instead of crime and punishment, classified criminals
into three main categories.
i) The Atavists or Hereditary Criminals-Beyond reformation
ii) Insane criminals-Commit crime due to mental disorder
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iii) Criminoids-Suffering from inferiority complex.

Contribution of Lombroso-
1. Individualization.
2. Biological nature.
3. Impact of environment.
However at a later stage, Lombroso himself discounted his theory of atavism and extended his
theory to social and economic situation of criminals.
(2) Enrico Ferri (1856-1928)-
Besides mere biological reasons,other factors such as emotional reaction,social infirmity and
geographical conditions play a vital role.
Crime is the synthetic product of three main factors:
• Physical or geographical
• Anthropological
• Psychological or social.
Basic purpose of any crime prevention programme should be to remove conditions responsible
for the crime.
He classified criminals into five categories:
• Born criminals
• Occasional Criminals
• Passionate Criminals
• Insane Criminals
• Habitual Criminals
(3) Garofalo (1852-1934)-Started as a magistrate in Italian Courts. Rose to be Minister of
Justice in 1903.
Crime is an act which offends the sentiments of pity (karuna,daya in Hindi) and probity
(imandaari in Hindi)possessed by an average individual. Lack of pity leads to crime against
person and lack of probity leads to crime against property.

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Classification of Criminals according to Garofalo:

(i)Murderers or endemic criminals
(ii)Violent criminals affected by environmental influences such as prejudices of honour, politics
and religion
(iii)Criminals lacking in sentiment of probity (beimaan)
(iv)Lascivious or lustful (tharki)
Advocated death, life imprisonment or transportation and reparation (badla ya kshatipurti in
Hindi).Strongly advocated elimination of habitual offenders who were incapable of social
adaptation.
V. Socialistic School
Main exponents of this school-Karl Marx and William Bonger
According to Karl Marx, crime is the result of class struggle or class conflict between the rich
(haves) and the poor (have not’s). Poor people commit crime to feed themselves or fulfill their
bare necessities.
William Bonger says- Greedy and selfish nature inspires a man to do his own welfare through
some way or other.
Artificial scarcity, Exploitation of child and woman, unhealthy competition etc. all lead to
crimes.
Criticism
Economic aspects alone are not the cause of crime. Sudden provocation or other compelling
conditions may lead to crime.
White Collar Criminals are exception to this proposition.
Economic aspect is one of the factors but it is not the only factor
VI. Sociological School
According to this school, imitation is the only main factor of causation of crime. Following are
the methods of learning by process of imitation.
1. Attitude.
2. Differential Association
3. Compensation
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4. Frustration
5. Individual differences
6. Interaction Group
7. Membership of inactive group
Main Exponents of this school: Trade, Bon-listz, Prins, Van Hamol and Pointesky.
Main Principles of this school are:
1. Criminal behaviour is a result of some process of others'behaviour.
2. Social changes which cause crimes happen due to following reasons:
(i) Struggle of cultures
(ii) Competition
(iii) Socio, economic and political changes.
3. Higher density of population
i) Inequitable distribution of Wealth
ii) Education or employment
iii) process of changes
Criticism:
1. Immitation is not the only factor. Sudden provocation or other compelling circumstances
could be the cause.
2. This theory is applicable in areas inhabited by criminals. At places inhabited by educated
and law abiding citizens, this theory has little application.
VII. Cartographical/Geographical School
1. Crimes are committed more in unfavourable circumstances and less in favorable
circumstances.
2. Thickness of population-Less in sparsely populated, more in densely populated.
3. Season: More in summer, less in winter
4. Natural Resources: Less in plentiful, more in unfertile, deserted or hilly areas.
Criticism
1. Cartographical factors can be one of the reasons but not the only reason.
2. Crime is more personality oriented phenomenon-mentality and conduct.
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3. Conditions may change but criminal tendencies don't change.

VIII. Economic School
According to Aristotle: Crimes originate from poverty. Necessities of life and greed for
superfluous things result in crime.
According to Plato: Human greed is a potential cause of crime. Poverty results in hunger,
misfortune, disease and anger destroying the personality of the individual making him do
unwanted things.
According to Russell: Food prices and crime go hand in hand.
According to R.H.Walsh: Depression, unfavourable economic periods result in increased crime.
According to Goring: There is a proximate relationship between the crime and occupation of the
criminal.
According to Trade; Crimes are result of a man's crave for luxurious life on account of industrial
impact on him.
According to Dr.Morrison: Was a great exponent of Indian caste system. He observed that
there is a peculiar undercurrent of economic soundness in Indian Caste system where every
member of caste could find he completely safe and secure from economic standpoint.
According to Dr.Bonger: Failure of socialistic economies has firmly established supremacy of
capitalistic economy. While establishing a co-relationship between economic condition and
crime, he enunciated the following principles:
1. Almost 79% criminals belong to non-profitable class. Crimes relating to property increase
during depression.
2. Economic conditions like unequal distribution of wealth, hoarding etc lead to unemployment
ultimately leading to alcoholism, vagaboundary etc.
3. Economic booms and depression are recurrent in nature leading to insolvency, bankruptcy
leading to isolation and criminal tendencies.
4. Competition leads to fall in cost of production and increase in quality. But at times it may
lead to infringement of patent rights, trade marks etc.
5. Employment of Children and women leads to crimes. Increased spending power with
children coupled with lack of maturity may lead to bad habits like gambling, drinking,

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womanizing etc.
Women employees are susceptible to sex crimes.
Cohen has criticized the economic theory of Bonger of Criminality. He said:
Honesty is not the monopoly of the rich. Even big shots engage in falsification of accounts,
infringement of trademarks, hoarding, copyright crimes etc.
Arson, willful damage and sex crimes are frequent among labour class, agriculturists, seamen
and soldiers while persons engaged in commercial occupations commit crimes of acquisitive
nature or property related crimes.
IX. Multiple Causation Theory
Crime committed not attributable to a particular factor.
According to Enrico Ferri, Different causes of crime are: anthropological, physical and social.
• Anthropological: age, sex, civil status, profession, domicile, social rank, instruction,
education, organic constitution.
• Physical factors: Race, climate, fertility, meteoric conditions and temperature
• Social factors: Density of population, emigration, public opinion, customs and religion,
public-order, economic and industrial conditions, agricultural and industrial production,
public administration of public safety, public instruction and education, public
beneficiaries, civil and penal legislation.
There could be more and this list is not exhaustive.
British psychologist Dr. Cyril Burt there is no single source of crime. White collar crimes are
because of greed and not need. Violent crimes are result of revenge, lust, greed etc.
X. Mental Testers
Exponents: H.Goodard Goring, Sigmund Freud, Jean FD, Esquirol and Issac Ray etc.
Mental deficiency and animal behaviour can be determined by employing psychometric tests.
According to H.Goodard- Mental deficiency in almost half criminals.
According to Goring: Mental deficiency is a major cause except cleverness in case of fraud.
Q.5 What do you mean by Recidivism? What are the causes of Recidivism?
What are the measures which may be suggested for suppressing recidivism?
Ans. Meaning of Recidivism
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Recidivism means the commission of the crime by habitual offenders.

According to Lombroso’s Theory of Born Criminal, some people are born criminal. They
cannot abstain themselves from committing a crime due to their peculiar physical traits and
mental condition.
Essentials of Recidivism – The following are the main elements of recidivism:
(1) Frequent commission of crime.
(2) Act of recidivism by those who had already been convicted for some offence.
(3) The frequent commission of crime habitually like other routine works.
(4) Recidivism has no connection with physical or mental capacity of other offender.
(5) Recidivist or habitual offenders do not fear from law or society.
Causes of Recidivism – Prof. Sutherland attributes two major causes for recidivism, namely-
(1) Social Psychology of the Offender - Prof. Sutherland pointed out that urbanized regions are
more conductive to recidivism than rural areas. Urban places offer sufficient opportunities for
offenders to carry on their criminal activities quite unnoticed for years. Criminality becomes a
habit with them and finally makes them recidivists. The living in rural areas is comparatively
cheaper and simple and offers lesser chances for criminality. Prof. Sutherland further concludes
that men are unquestionably more recidivistic than women because of their dominating social
status in the society.
Some penologists suggest that continued isolation of inmate from normal society due to long stay
in prison renders him unfit for a normal life after release. He finds no charm in free life and
prefers a routine life of a prison to which he is accustomed to. He suffers from inferiority
complex and in an anxiety to overcome this weakness; he repeats crime which he considers to be
an adventurous task.
Yet another potential cause of recidivism is to be found in the fact that criminal by reason of his
criminal trait forms associations and devotes to loyalties and attitudes which tend to persist in the
criminal.
2. Inadequacy of Reformative Techniques Measures of Suppressing Recidivism -
1. Provision be made in Penal System for Rehabilitation of Recidivists
2. Recidivists be kept under strict security

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3. To give proper aftercare treatment

4. Summary trials should be provided for securing conviction of Recidivists.

Q. 6. Define Probation. Write its merits and demerits.

Ans. Introduction
Probation is the status of a convicted offender during a period of suspension of the sentence
in which he is given liberty conditioned on his good behavior and in which the state by a
personal supervision attempts to assist him to maintain good behavior.
(Sutherland and Cressey)
According to this definition probation is not pardon any type. There are three elements in
probation
1- Inspection It is necessary to inspect of criminals under release of probation law.

2- Direction of goal In this period of inspection offenders are advised to actual direction
about his behavior and work.
3- Aiding State Government try to provide all type of help to released offenders on
Meaning
The term ‘probation’ is derived from the Latin word ‘probare’ which means ‘to test’ or
‘to prove’? Etymologically, probation means ‘I prove my worth’. Probation is one of the
measures which may be used by Courts as an improved form of non-custodial alternative
in place of incarceration. This correctional device is being increasingly used by the
magistracy in modern times. It aims at rehabilitation of offenders by returning them to
society during the period of supervision rather than sending them into an unnatural and
socially unhealthy atmosphere of prisons. The offender is allowed to remain in the
community and develop as a normal human being in his own natural
surroundings.[1]Probation is also defined “as the postponement of final judgment or
sentence in a criminal case, giving the offender an opportunity to improve his conduct
and to readjust himself to the community, often on condition imposed by the court and
under the guidance or supervision of an officer of the court.”

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In India, probation is used as an institutional method of treatment which is a necessary

appendage of the concept of crime and probation received statutory recognition for the
first time in 1898 through Section 562 of the Code of Criminal Procedure, 1898 (now
Section 360 of Code of Criminal Procedure, 1973).
Probation is governed by the provisions of Probation of Offenders Act, 1958. In the case
of Ramji Missar v. State of Bihar, it was held that the Probation of offenders Act
provides for the release of offenders on probation or after due admonition and for matters
connected therewith. The purpose behind the enactment of this Act is to top conversion
of youthful offenders into stubborn criminals as a result of their association with
hardened criminal of mature age in case of youthful offenders are sentenced to undergo
imprisonment in jail.
Here it is important to discuss the scope of probation under provisions of Section 360 of
Cr.P.C., 1973 and under the Probation of Offenders Act, 1958. It is clear from the case of
Chhanni v. State of U.P. in which the Supreme Court held that the enforcement
Probation of Offenders Act, 1958 in particular area excludes the applicability of
provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of
Section 4 of the Probation of Offenders Act is much wider than Section 360 of the Code
of Criminal Procedure which relates only to persons not under the age of 21 years,
convicted for offences punishable with fine only or with imprisonment up to 7 years, and
any woman convicted of an offence not punishable with death or imprisonment for life .
Merits
Following are the merits or advantages of probation:-
• It is most useful in the case of juvenile delinquents.
• It gives hope for the rehabilitation of the offender who has not committed the
offence.
• Probation is a way of sending good idea in the mind of offenders.
• It is helpful for both hardcore and youthful offenders.
• It helps in reducing the crowding in the jails.
Demerits
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• The threat of further punishment should also be incurred in the mind of prisoners.
Here there is no threat in the mind of prisoner.
• It decreases the average penalty.

Q.7 What do you understand by Parole? Discuss the essential elements of

parole?
Ans. Concept of Parole
Parole as a technique of reformation and rehabilitation of the criminal hardly has a history of
more than 150 years. In India, it is comparatively a new development. Thus, conceptualization of
parole becomes necessary.
Definition and Nature of Parole
Parole is a release procedure. The offender, after having served a part of his sentence in a
correctional institution, is released according to law from the prison or reformatory. Thus, the
simple meaning of the term 'parole' is a conditional release from prison.
According to the Encyclopedia of Criminology, Parole is a method of conditional release of
persons sentenced or committed to penal or correctional institutions after serving a portion of the
sentence or term imposed by the Court.
According to Encyclopedia Americana - Parole, Pa-ral, a term with several applications, all of
which bear some relation to the meaning of the French term parole (spoken word). In
criminology, a parole is the release of a prisoner before he has served his full sentence,
conditioned on his good behavior and his regular reports to a so called parole officer for the
balance of the term of his sentence.
Prof. Sutherland explains parole in the following words: Parole is the act of releasing or the
status of being released from a penal or reformatory institution in which one has served a part of
his maximum sentence, on condition of maintaining good behavior and remaining in the custody
and under the guidance of the institution or some other agency approved by the State until a final
discharge is granted.

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Parole has not been defined under any law. But Section 2(p) of the Delhi Prisons Act, 2000,
defines Parole System. According to Section 2(p), Parole system means the system of releasing
prisoner from prison on parole by supervision of their sentences in accordance with the rules.
Therefore, the release on parole is a wing of reformative process and is expected to give the
prisoner an opportunity to transform himself into the useful citizen, (Poonam Lata V. M.C.
Wadhawan, AIR 1987 SC 1383).
Essential Elements of Parole
Parole is the best form of release from prison but to be completely effective, parole must contain
the following elements:
1. Flexibility in the Sentencing and Parole Laws
There must be sufficient flexibility in the cause governing sentence and parole to permit the
offender at the time when his release under the supervision of a social worker is in the best
interest of society.
2. Qualified Parole Board
The parole board must be composed of members qualified by character, intelligence, training and
experience to understand the complex problem of human behavior involved in parole decisions
and have the knowledge, patience and integrity required to render wise and just decisions.
3. Qualified Parole Staff
It is essential that the parole services be composed of persons selected in accordance with high
standards of ability, character, training and experience and appointed on career service basis.
4.Freedom from Political or Improper Influence
There should be complete freedom from political or improper influence. It is the status of the
person who is released from penal institution. Thus, complete freedom from improper control or
influence, political or otherwise is imperative.
5. Proper Parole Procedures
A parole procedure should be proper which makes provisions for the release of prisoners on
parole, preparation for parole Board of all data pertinent to the case, a parole hearing based upon
careful study of such data formulation and investigation of a satisfactory parole plan, release

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under adequate supervision and return to the institution of those who are unable to readjust
satisfactorily under supervision.
6. Pre-release Preparation within the Institutional Programme
Operation within the institution of a programme which aims at utilizing the period of
confinement for preparing the inmates physically, vocationally, mentally and spiritually, for his
return to the society, and puts forth intensive effort, at the close of the term, towards effecting his
release under optimum conditions as far as he, his dependents and the community are concerned.
7. Parole Research
There should be a system of gathering, presenting and interpreting data concerning the practical
operations of the parole system and its effectiveness. Such a system should be kept up to date
and be used as a guide for the evaluation of the operations and decisions of the parole board.

Q.8 What do you understand by white- collar crimes? What offences come
under this heading? What steps Indian Government has taken to check these
crimes? Explain.
Or
Q.8. White Collar Crime are least detected and its offences are least punished.
Comment.

Ans. Meaning of White Collar Crime

This notion was laid down for the first time in the field of criminology by Prof. Edwin
Sutherland in 1941. He defined white collar crime as “crime committed by persons of
respectability and high social status in course of their occupation”. Examples of it include
fraudulent advertisements, infringement of patents, publication of falsified balance sheet of
business, passing of goods, concealment of defects in the commodity for sale etc. These white
collar crimes by nature are such that the injury or the damage caused as a consequence of them is
so widely diffused in the large body of citizens that their enormity as regards personage victim is
almost trifling.
According to Hartung defines a white-collar offense as a violation of law regulating business,
which is committed for a firm by the firm or its agents in the conduct of its business.”

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Types of White Collar Crime in India

According to Bank Fraud: To engage in an act or pattern of activity where the purpose is to
defraud a bank of funds.
According to Blackmail: A demand for money or other consideration under threat to do bodily
harm, to injure property, to accuse of a crime, or to expose secrets.
According to Bribery: When money, goods, services, information or anything else of value is
offered with intent to influence the actions, opinions, or decisions of the taker. You may be
charged with bribery whether you offer the bribe or accept it.
Cellular Phone Fraud: The unauthorized use, tampering, or manipulation of a cellular
phone or service. This can be accomplished by either use of a stolen phone, or where an actor
signs up for service under false identification or where the actor clones a valid electronic serial
number (ESN) by using an ESN reader and reprograms another cellular phone with a valid ESN
number.
Computer fraud: Where computer hackers steal information sources contained on computers
such as: bank information, credit cards, and proprietary information.
Counterfeiting: Occurs when someone copies or imitates an item without having been
authorized to do so and passes the copy off for the genuine or original item. Counterfeiting is
most often associated with money however can also be associated with designer clothing,
handbags and watches.
Credit Card Fraud: The unauthorized use of a credit card to obtain goods of value.
Currency Schemes: The practice of speculating on the future value of currencies.
Educational Institutions: Yet another field where collar criminals operate with impunity
are the privately run educational institutional in this country. The governing bodies of those
institutions manage to secure large sums by way of government grants of financial aid by
submitting fictitious and fake details about their institutions. The teachers and other staff
working in these institutions receive a meager salary far less than what they actually sign for,
thus allowing a big margin for the management to grab huge amount in this illegal manner.

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Embezz1ement: When a person who has been entrusted with money or property appropriates
it for his or her own use and benefit.
Environmental Schemes: The overbilling and fraudulent practices exercised by
corporations which purport to clean up the environment.
Extortion: Occurs when one person illegally obtains property from another by actual or
threatened force, fear, or violence, or under cover of official right.
Engineering: In the engineering profession underhand dealing with contractors and suppliers,
passing of sub-standard works and materials and maintenance of bogus records of work-charged
labour are some of the common examples of white collar crime. Scandals of this kind are
reported in newspapers and magazines almost every day in our country.
Fake Employment Placement Rackets: A number of cheating cases are reported in
various parts of the country by the so called manpower consultancies and employment placement
agencies which deceive the youth with false promises of providing them white collar jobs on
payment of huge amount ranging from 50 thousands to two lakhs of rupees.
Forgery: When a person passes a false or worthless instrument such as a check or counterfeit
security with the intent to defraud or injure the recipient.
Health Care Fraud: Where an unlicensed health care provider provides services under the
guise of being licensed and obtains monetary benefit for the service.
The white collar crimes which are common to Indian trade and business world are hoardings,
profiteering and black marketing. Violation of foreign exchange regulations and import and
export laws are frequently resorted to for the sake of huge profits. That apart, adulteration of
foodstuffs, edibles and drugs which causes irreparable danger to public health is yet another
white collar crime common in India.
Insider Trading: When a person uses inside, confidential, or advance information to trade in
shares of publicly held corporations.
Insurance Fraud: To engage in an act or pattern of activity wherein one obtains proceeds
from an insurance company through deception.

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Investment Schemes: Where an unsuspecting victim is contacted by the actor who promises
to provide a large return on a small investment.
Kickback: Occurs when a person who sells an item pays back a portion of the purchase price
to the buyer.
Larceny/Theft: When a person wrongfully takes another person's money or property with the
intent to appropriate, convert or steal it.
Legal Profession: The instances of fabricating false evidence, engaging professional witness,
violating ethical standards of legal profession and dilatory tactics in collusion with the
ministerial staff of the courts are some of the common practices which are, truly speaking, the
white collar crimes quite often practiced by the legal practitioners.
Money Laundering: The investment or transfer of money from racketeering, drug
transactions or other embezzlement schemes so that it appears that its original source either
cannot be traced or is legitimate.
Medical profession: White collar crimes which are commonly committed by persons
belonging to medical profession include issuance of false medical certificates, helping illegal
abortions, secret service to dacoits by giving expert opinion leading to their acquittal and selling
sample-drug and medicines to patients or chemists in India.
Racketeering: The operation of an illegal business for personal profit.
Securities Fraud: The act of artificially inflating the price of stocks by brokers so that buyers
can purchase a stock on the rise.
Tax Evasion: When a person commits fraud in filing or paying taxes.
The complexity of tax laws in India has provided sufficient scope for the tax-payers to evade
taxes. The evasion is more common with influential categories of persons such as traders,
businessmen, lawyers, doctors, engineers, contractors etc. The main difficulty posed before the
Income Tax Department is to know the real and exact income of these Professionals. It is often
alleged that the actual tax paid by these persons is only a fraction of their income and rest of the
money goes into circulation as ‘black money.

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Telemarketing Fraud: Actors operate out of boiler rooms and place telephone calls to
residences and corporations where the actor requests a donation to an alleged charitable
organization or where the actor requests money up front or a credit card number up front, and
does not use the donation for the stated purpose.
Welfare Fraud: To engage in an act or acts where the purpose is to obtain benefits (i.e.
Public Assistance, Food Stamps, or Medicaid) from the State or Federal Government.
Weights and Measures: The act of placing an item for sale at one price yet charging a
higher price at the time of sale or short weighing an item when the label reflects a higher weight.

White Collar Crime in India

White collar criminality has become a global phenomenon with the advance of commerce and
technology. Like any other country, India is equally in the grip of white collar criminality. The
recent developments in information technology, particularly during the closing years of the
twentieth century, have added new dimensions to white collar criminality. There has been
unprecedented growth of a new variety of computer dominated white collar crimes which are
commonly called as cybercrimes. These crimes have become a matter of global concern and a
challenge for the law enforcement agencies in the new millennium. Because of the specific
nature of these crimes, they can be committed anonymously and far away from the victims
without physical presence. Further, cyber-criminals have a major advantage: they can use
computer technology to inflict damage without the risk of being apprehended or caught. It has
been predicted that there would be simultaneous increase in cybercrimes with the increase in new
internet web sites. The areas affected by cybercrimes are banking and financial institutions,
energy and telecommunication services, transportation, business, industries etc. in India.
Laws relating to White Collar Crimes
The government of India has introduced various regulatory legislations, the breach of which will
amount to white-collar criminality. Some of these legislations are Essential Commodities Act
1955, the Industrial (Development and Regulation) Act, 1951.,The Import and Exports (Control)
Act, 1947, the Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956, Prevention of
Money Laundering Act, 2002.

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The Indian Penal Code contains provisions to check crimes such as Bank Fraud, Insurance fraud,
credit card fraud etc. In case of money laundering several steps have been taken by the
government of India to tackle this problem the Reserve Bank of India has issued directions to be
strictly followed by the banks under KYC (Know Your Customer) guidelines. The banks and
financial institutions are required to maintain the records of transactions for a period of ten years.
In order to tackle with computer-related crimes, Information Technology Act, 2000 has been
enacted to provide legal recognition to the authentication of information exchanged in respect of
commercial transactions.
Section 43 and 44 of Information Technology Act prescribes the penalty for the
following offences:
• Unauthorized copying of an extract from any data.
• Unauthorized access and downloading files.
• Introduction of viruses or malicious programmes.
• Damage to computer system or computer network.
• Denial of access to an authorized person to a computer system.
• Providing assistance to any person to facilitate unauthorized access to a computer.
Though the focus of Information Technology Act is not on cybercrime as such, this Act has
certain provisions that deal with white collar crimes. Chapter XI deals with the offence of
cybercrime and chapter IX deals with penalties and adjudication of crime. Apart from this, many
issues are unresolved due to lack of focus. Some of them are:
• Inapplicability
• Qualification for appointment as adjudicating officer not prescribed
• Definition of hacking
• No steps to curb internet piracy
• Lack of international cooperation
• Power of police to enter and search limited to public places
• Absence of guidelines for investigation of cybercrime.
On the basis of the recommendations of Santhanam Committee, some of the relevant laws were
amended (on the lines of retaining the jurisdiction of ordinary criminal courts but doing away

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with some of the cumbersome provisions of criminal law in the context of white - collar crimes).
Thus, greater powers are conferred on the investigating officers and on the magistracy, and
summary trials now also possible for some of the offences (e.g. in enactments like
Anti-corruption laws (Amendment) Act, 1964; Foreign Exchange (Amendment) Act, 1964;
Prevention of Food Adulteration (Amendment) Act, 1964, etc.). The laws have also been made
less favourable to the accused person by incorporating certain presumptions against them under
certain circumstances. Under Sec. 4 of the Prevention of Corruption Act, there is a presumption
that money received other than legal remuneration by a public servant is an illegal gratification.
Regarding 'Measures to check and control the criminalization of politics', there is no dearth of
laws to prevent criminals from entering politics. No law can prevent or solve declining standards
of honesty and integrity in the society. A change in the political environment is called for so that
people with greater integrity, social commitment and genuine patriotism could come. The public
has to be less forgiving, more unsparing in its choice of politicians; the press, more adversarial,
less willing. Depoliticizing the bureaucracy and the police is another important step which
should be taken.
In 1993, the Government of India appointed a committee under the chairmanship of N.N.
Vohra, Cabinet Secretary, "to take stock of all available information about the crime
syndicates/mafia organisations which had developed links with and were being protected by
government functionaries and political personalities.”. The Vohra Committee Report while
acknowledging the existence of a nexus between the politicians and the dons of the criminal
world has spelt out the writing on the wall, saying that "Mafias" is virtually running a parallel
government pushing the State apparatus into irrelevance. The Committee said that a nodal
agency, headed by a serving bureaucrat. To be established to check/break the criminal- politician
nexus.
It is submitted that such agency should be a politically immune body involving persons of
unquestionable integrity such as sitting or retired judges. In Dinesh Trivedi v. Union of India
(1997) 4 SCC 306, the Supreme Court (in connection with the Report of Vohra Committee)
observed: "In view of the seriousness of the charges involved and the clout wielded by those who
are likely to become the focus of investigation, it is necessary that the body which is entrusted

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with the task of following the investigation through to the stage of prosecution, be such that it is
capable of enjoying the complete trust and confidence of the people. An institution like the
Ombudsman/ Lokpal could command such confidence and respect. Till its creation, a high- level
committee be appointed by the President in consultation with the Prime Minister and Speaker of
the Lok Sabha. The committee shall monitor investigations involving the kind of nexus referred
to in the Vohra Committee Report.
There are some measures to deal with white-collar crimes. Some of them are, creating public
awareness of crimes through media or press and other audio-visual aids and legal literacy
programmes. Special tribunals should be constituted with power to sentence the offenders for at
least 5 years and conviction should result in heavy fines rather than arrest and detention of
criminals. Unless the people will strongly detest such crimes, it is not possible to control this
growing menace.
Q.9 Discuss various arguments for abolition and retention of capital
punishment in India. Explain with various verdicts of the Supreme Court of
India.
Ans. "A society which felt neither anger nor indignation at outrageous conduct
would hardly enjoy an effective system of law" - Salmond.
The clemency petition filed by convicted terrorist Mohammed Afzal Guru has obtained a large
amount of attention in the media. Mercy plea advocated by the Jammu and Kashmir Chief
Minister and the coalition partner of his government, not to talk of the violent public protests in
the Kashmir valley has polarized the whole country into Kashmir is on one side and rest of India
on the other side. All this has given rise to a debate over issues-
1. Whether death penalty be abolished?
2. Whether Afzal Guru’s case satisfies the relevant legal tests incorporated under law and laid
down in various judicial decisions?
3. Whether the provision of death penalty as an alternative punishment for murder, in sec. 302,
Penal Code is not in the public interest?

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4. Whether the provisions of section 302 of I.P.C. are against the ethos of Article 19 as well
as 14?
From the time immemorial this has for long remained a controversial question both at national
and international level. The issue has been tirelessly debated on national as well as international
level but nothing conclusive has come out till now. No doubt the problem is of serious nature but
the difficulty involved should not deter us from venturing into the pros and cons involve in the
question. The opinion of intellectuals such as Legal Philosophers, Jurists, Judges, and other
social scientists stands divided. In many countries capital punishment is an integral part of
criminal justice system and it has remained to be accepted form of justice through the ages
though its form may have been different because of reasons of geography, culture, and the
passing of time.
The Indian jurisprudence is a blend of reformative and deterrent theories. While the punishments
are to be imposed to deter the offenders, it is also inalienable part of Indian penal jurisprudence
that the offenders should be given opportunity for reformation. Bearing in mind these
fundamental tenets, the legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection
basically lays down that special reasons are to be recorded by the Court for imposing death
punishment in capital offences. Thus, the position of law after Cr.P.C. 1973 became that the
general rule was life imprisonment while the death sentence was to be imposed only in special
cases.
Crime has rightly been described as an act of warfare against the community touching new
depths of lawlessness. The object of imposing deterrent sentences is threefold:
(1) To protect the community against callous criminals for a long time.
(2) To administer as clearly as possible to others tempted to follow them into lawlessness on
a war scale if they are brought to and convicted, deterrent punishment will follow, and
(3) To deter criminals who are forced to undergo long-term imprisonment from repeating
their criminal acts in future. Even from the point of view of reformative form of punishment
"prolonged and indefinite detention is justified not only in the name of prevention but cure. The
offender has been regarded in one sense as a patient to be discharged only when he responds to
the treatment and can be regarded as safe"1for the society.

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Hobbes asserted that every man had under the natural order has the right of reprisal for wrongs
done to himself or anyone else. Then he said that social contract had left this right to the
sovereign while taking it away from everyone else. Kant viewed that every political society had
a duty to enforce retributive justice. Rousseau felt that the subject ought not to complain if the
sovereign demanded the subject’s life. He considered death as a proper punishment, if the
criminal was beyond redemption. "A society which felt neither anger nor indignation at
outrageous conduct would hardly enjoy an effective system of law" (Salmond).
England abolished death penalty by murder. In spite of the Murder (Abolition of Death Penalty)
Act, 1965 in England death sentence can be lawfully imposed in cases of high treason, setting
fire to Queen’s ships, arsenals etc and in piracy with violence. In the Soviet Union Death Penalty
was abolished in May 1947 and in May 1950 it was reintroduced for Treason, espionage and
sabotage and in 1954 for intentional homicide under aggravating circumstances. French Penal
Code of 1810 as amended in 1959 retained Death Penalty. Death Penalty has been retained by
the prepatory draft for the revised Penal Code of Japan, though it should be invoked with great
caution. This points out towards the fact that most of the nations are reluctant to do away with
the Death Penalty.
One of the arguments of abolitionists is that death penalty is against Hindu Philosophy but this
will not stand the scrutiny of mythological texts. The imposition of death penalty in India:
appears to go back to ancient times according to the country’s epics and mythology: stories
abound in our mythology of the destruction of demons who, became a deadly menace to the life,
property and authority of mortals and the divine race alike; tales of Hiranyakashyapu, Bali and
Mahishasura etc. No doubt religion preaches against killing of human being but that
presupposes an ideal society and if we cannot provide ideal conditions then we cannot of
particular aspect in isolation. The statistics, which talks of absence of any relationship between
death penalty and occurrence of crime, cannot be straightway trusted for such an important
policy decision as that of death penalty. The statistics derived from a quantitative method may
not be an appropriate method to judge the basic truth about the qualitative aspects of those
results.
Retributive character

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The punishment is retributive in character. The object of sentencing should be to see that the
crime does not go unpunished and the victim of crime as also the society has the satisfaction that
justice has been done to it lest it may lead to Lynch Law. There have been instances where
victim’s relative killed the accused. Criminal Law has its origin in vengeance. Punishment
mechanism revolves around the satisfaction of law-abiding person’s anger. Anger is not always
bad but it is the indifference of community towards the circumstances, which is more harmful.
One of the purposes of law is to calm the community’s anger by punishing the criminal. Anger
which is not selfish like greed or jealously is socially constructive and when it erupts for right
cause it should be rewarded. Punishment is primarily satisfaction of private revenge and at the
same time an emphatic denunciation of the crime by the society. Any civilized society which
shies away from showing righteous indignation has nothing to distinguish it from maim soul The
Criminal Law stands to the passion of revenge in much the same relation as marriage to sexual
appetite. Retributive punishment tends to control recidivism.
The theory of deterrent punishment draws its inspiration from the hedonistic philosophy of
Beccaria’s classical school of criminology. A rigorous and maximum punishment as against a
moderate and lesser punishment helps to prevent the commission of a crime. For the
incorrigibles and habitual and hardened criminals death penalty is best suited and it is the only
method teaching hardened criminals. The incorrigible and hardened criminal as a rotten limb of
the society must be eliminated. The prevalence of recidivism offers a serious stumbling block to
a too ready acceptance of the idea of readily achieved reformation. The recidivist becomes the
criminal who after having experienced rehabilitation treatment returns to crime and ultimately to
prison again to be rehabilitated further. Making murder a safer proposition, a less deadly
proposition for the killer will have a hostile effect on society. The capital punishment is an
effective tool to curve the grave wrong act such as of killing and it can also be instrumental in
preventing society from becoming ever more imperfect than it need be.
Previous efforts to abolish the Death Penalty
Legislative attempts to abolish the death penalty in India have failed. Before Independence a
private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for
penal code offences. The British Home Secretary at the time however rejected the motion.

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The Government of independent India rejected a similar Bill introduced in the first Lok Sabha .
Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958
and 1962 but were withdrawn after some debate.
The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha
in 1971 concluded that the death penalty should be retained and that the executive (President)
should continue to possess powers of mercy.
The issue of constitutional validity of Sec. 302, the SC in Jagmohan V/s State of U.P. Apart
thrashed out I.P.C. in detail from the constitutional validity, the SC also discussed position in
other countries, the structure of Indian Criminal law, the extent of Judicial discretion etc.
It was held in Jagmohan Singh v. State of U.P. that death sentence act as deterrence but as
token of emphatic disapproval of the crime by the society, where the murder is diabolical in
conception and cruel in execution and that such murderers cannot be simply wished away by
finding alibis in the social maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and so also the general intellectual
levels are different. The court referred to the 25th Report of the Law Commission of India, in
which it was stated that India cannot risk the experiment of abolition of capital punishment. The
fact that the possibility of an error being committed in the matter of sentence can be corrected by
appeals and revisions to higher courts was relied upon.
The approach of our Supreme Court in the matter of death sentence is cautious as well as
restrictive which is in consonance with the modern and liberal trends in criminal jurisprudence.
The doctrine of Rarest of Rare evolved by the apex Court reflects the humanist Jurisprudence.
There have been ample instances where the Supreme Court has restricted the use and imposition
of death penalty only to cases coming within the category of rarest of rare. Under sec 354(3) of
the Criminal Procedure Code, 1973 a new provision has been introduced to say that when the
conviction is for an offence punishable with death or, in the alternative with imprisonment for
life or imprisonment for a term of years, the judgment shall state the reason for the sentence
awarded and in the case of sentence of death, the special reason for such sentence.
Rarest of rare cases

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Whether a case falls under the category of rarest of rare case or not, for that matter the Apex
court laid down a few principles for deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances. Court opined that while
deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in
that particular case has to be drawn. Full weightage should be given to the mitigating
circumstances and even after that if the court feels that justice will not be done if any punishment
less than the death sentence is awarded, then and then only death sentence should be imposed.
In Machhi singh vs. State of Punjab, the court laid down: - "In order to apply these guidelines
inter-alia the following questions maybe asked and answered:
(a). Is there something uncommon about the crime, which renders sentence of imprisonment for
life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weight age to the mitigating circumstances which speak
in favor of the offenders?"
Aggravating Circumstances mitigating circumstances
1. Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner
so as to arouse intense and extreme indignation of the community.
2. Murder- for a motive, which evinces total depravity and meanness.
3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath (not for personal
reasons).
4. Bride burning/ Dowry death.
5. Murderer in a dominating position, position of trust or in course of betrayal of the motherland.
6. Where it is enormous in proportion.
7. Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and
respected by the community.
1.That the offence was committed under the influence of extreme mental or emotional
distribution;
2. If the accused is young or old, he shall not be sentenced to death.

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3. The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat to society.
4. The probability that the accused can be reformed and rehabilitated; The state shall by evidence
prove that the accused does not satisfy the conditions (3) and (4) above.
5. That in the facts and circumstances of the case, the accused believed that he was morally
justified in committing the offence.
6. That the accused acted under the duress of domination of another person.
7. That the condition of the accused showed that he was mentally defective and that the s aid
defect impaired his capacity to appreciate the criminality of his conduct.
Where two members of an unlawful assembly went forward to deal with their target by disposing
him of and, on being not able to get him, gunned down his two young girls whom they chanced
to spot on way back, the Supreme Court held that it was not one of those "rarest of rare" cases
in which death penalty would be warranted.
Supreme Court in Dhananjoy Chatterjee v. State of W.B., held that the measure of punishment
in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the
defenseless and unprotected state of the victim. Imposition of appropriate punishment is the
manner in which the courts respond to the society's cry for justice against the criminals. Justice
demands that courts should impose punishment fitting to the crime so that the courts reflect
public abhorrence of the crime. The courts must not only keep in view the rights of the criminal
but also the rights of the victim of crime and the society at large while considering imposition of
appropriate punishment.
As already stated that opinion on Capital Punishment stands divided and large segment of
population including notable penologists, judges, jurists, legislators and other enlightened people
still believe that death penalty for murder and certain other capital offences does serve as a
deterrent and a greater deterrent than life imprisonment. Courts must administer shock therapy to
deter certain crimes, as threat of death to the offender may still be a promising strategy in some
frightful areas of murderous crime. Death penalty serves as a deterrent as well as retributive.
Only penalty of death, will provide maximum deterrence. No other punishment deters men so
effectually from committing crimes, as the punishment of death. Death is death, its terrors cannot

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be described more forcibly. Prima Facie, the penalty of death is likely to have a stronger effect as
a deterrent to normal human behaviour than any other form of punishment, though it is difficult
to unravel the innermost recesses of the minds of potential murderers. The truth is that some
crimes are so outrageous that society insists on adequate punishment, because the wrongdoer
deserves it, irrespective of whether it is a deterrent or not. If accepted that death penalty have no
deterrent effect then it will be most illogical and irrational to ask for continuances of a scheme of
penalties for lesser offences against society. How can lesser punishment have a deterrent effect
when the severest in the scheme of penalties have no such effect?
Some of the observations made by the apex court in Bachan Singh's case are worth mentioning.
On the question of reasonableness of death penalty, the SC observed- “...if not withstanding the
view of the abolitionists to the contrary , a very large segment of people, the world over,
including sociologists, legislature, Jurists, judges and administrators still firmly believe in the
worth and necessity of capital punishment for the protection of society, if in the perspective of
prevailing crime conditions in India, contemporary public opinion canalized through the peoples
representatives in parliament, has repeatedly including the one made recently to abolish or
specifically restrict the area of death penalty, if death penalty is still a recognized legal sanction
for murder or some types of murder in most of the civilized countries in the world , if the farmers
of the Indian constitution were fully aware of the existence of death penalty as punishment for
murder, under the Indian Penal Code, if the 35th report and subsequent reports of law
commission suggesting retention of death penalty, and recommending revision of the Cr.P.C. and
the insertion of the new sections 235 (2) and 354 (3) were before the Parliament when it took up
revision of the Cr.P.C.
Further the opinion of Sir James Fitziames Stephen, a great Jurist, who was concerned with the
drafting of I.P.C., is very important to mention- “No other punishment deters man so
effectually from committing crimes as the punishment of death. This is one of those
propositions which is difficult to prove simply because they are in themselves more obvious
than any proof can make them. In any secondary punishment, however terrible, there is hope,
but death is death, its terrors cannot be described more forcibly.” These views are very strong

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answers to the people who oppose death punishment with the arguments that it does not serve
penological purpose.
Constitutional validity of death sentence
In the case of Jagmohan V/s State of U.P. the question of constitutional validity of death
punishment was challenged before the SC, it was argued that the right to live was basic to
freedom guaranteed under Article 19 of the constitution. The S.C. rejected the contention and
held that death sentence cannot be regarded as unreasonable per se or not in the public interest
and hence could not be said to be violative of Article 19 of the constitution.
In Bachan singh’s case it was categorically opined by the Apex court… it is not possible to held
that the provision of death penalty as an alternative punishment for murder, in sec. 302, Penal
Code is unreasonable and not in the public interest. The impugned provision in Sec. 302,
violates neither the letter nor the ethos of Article 19". [Para 132]. Sarkaria J. delivered the
judgment for majority discussed all these issues at length, and the SC, with the majority of 4:1
rejected the challenges to the constitutionality of sec.302 I.P.C.
Indispensability of Capital Punishment in India
Life imprisonment in our country is not of much significance as it can be substantially reduced
(limitation is that it cannot be reduced below 14 years). Life imprisonment under no
circumstances should be reduced as it is in most heinous crimes that the sentence life
imprisonment is awarded. Even if this is accepted still there are other valid objections. Death
penalty cannot be removed or abolished on humanitarian grounds or on the grounds of other
alternative mode of punishment are available. A killer who is a perpetrator of other’s right to live
can’t claim to have an inviolable right to live. The focus should be on the mischief flowing from
what the criminal has done to his victim and those near and dear to him and greater attention be
paid to victimlogy and therefore to the retributive aspect of punishment. The abolitionist needs to
shift their focus from criminal to victim, as a killer is a proven enemy of society. Even if option
to decide on death penalty or life imprisonment is to be given it should be left to the victim’s
family who have suffered due to the killer and know more about cruelty than the abolitionists.
The demand of abolition of death penalty is a demand in wrong direction and represents a trend
reversal when society is considering the issue whether mercy killing be accepted or not. Death

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penalty to a killer is a sort of mercy to an ailing society, which wants to get rid of its enemy. The
process of reformation of criminals with an unascertained record would entail a great risk as a
sizable number of criminals instead of being reformed may be encouraged to commit offences
after offences and become a serious and horrendous hazard to the society. The question,
therefore, is--should the country take the risk of innocent lives being lost at the hands of
criminals committing heinous crimes in the holy hope or wishful thinking that one day or the
other, a criminal, however dangerous or callous he may be, will reform himself, Valmikis are not
born every day and to expect that our present generation, with the prevailing social and economic
environment, would produce Valmikis day after day is to hope for the impossible.
Even for the sake of argument if it is accepted that capital punishment has no deterrence then it
means that criminal is not afraid of death and it will be difficult for the state to keep such a
person in prison after all it is the fear of death that keeps a criminal in jail. After all criminal
facing life imprisonment need a single chance to set himself free for taking a revenge from
adverse witnesses and the prosecution who according to him were responsible for sending him to
jail. Judge may also become the victim of his anger. As there is a saying so long as there is life,
there is scope for irrepressible hope and hope for a break for freedom. A prisoner serving life
imprisonment can go on a killing spree and there can be no further punishment from the
punishment he is already facing. One important question that arises is shall we sacrifice the lives
of future victims in order to spare the life of a murderer. Argument that goes against death
penalty is that the societies do not have the right to take anyone’s life since it cannot give life
then why to kill soldiers of enemy, terrorist. One may say what is the need of providing arms to
security forces if no human being can be deprived of his/her life whatever may be the
circumstances. Prima Facie, the penalty of death is likely to have a stronger effect as a deterrent
to normal human behavior than any other form of punishment, though it is difficult to unravel the
innermost recesses of the minds of potential murderers.
The conditions prevailing in some western countries that have abolished death penalty are
incomparable with India. In abolitionist States even the most notorious criminals are effectively
segregated from civil society for the rest of their natural life.

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Contrastingly, in India life sentence can be reduced to 14 years. Our prison system is inadequate
and unable to hold capital offenders for longer periods as in most western countries. How many
times we have read the reports in newspaper about recovery of cell phones from prisons and
many criminals find it suitable to operate from jails as they are protected from their rival
criminals.
Conclusion
"Each extreme is a vice; virtue lies in the middle" - Aristotle
The death penalty is a part of Indian law, and unless it is altered by legal or constitutional
amendment, it is a given which every judge of every Indian court is bound to apply, whenever
the relevant legal test are fulfilled.
The Indian jurisprudence is a blend of reformative and deterrent theories. While the punishments
are to be imposed to deter the offenders, it is also inalienable part of Indian penal jurisprudence
that the offenders should be given opportunity for reformation. Bearing in mind these
fundamental tenets, the legislatures drafted Sec. 354 (3) of the Cr.P.C. This subsection basically
lays down that special reasons are to be recorded by the Court for imposing death punishment in
capital offences. Thus, the position of law after Cr.P.C. 1973 became that the general rule was
life imprisonment while the death sentence was to be imposed only in special cases.
Prima facie, the penalty of death is likely to have a stronger effect as a deterrent to normal
human being than any other form of punishment, though it is difficult to unravel the innermost
recesses of the mind of the potential murderers. The truth is that some crimes are so outrageous
that society insists on adequate punishment, because the culprit deserves it, irrespective of
weather it is a deterrent or not. Retribution is still a socially acceptable function of punishment.
The instinct for retribution is part of the nature of man. Retribution and deterrence are not two
divergent ends of capital punishment. They are convergent goals, which ultimately merge into
one. Death penalty to a killer is a sort of mercy to an ailing society, which wants to get rid of its
enemy. Anger which is not selfish like greed or jealously is socially constructive and when it
erupts for right because it should be rewarded.
Even for the sake of argument if it is accepted that capital punishment has no deterrence then it
means that criminal is not afraid of death and it will be difficult for the state to keep such a

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person in prison after all it is the fear of death that keeps a criminal in jail. The abolitionist needs
to shift their focus from criminal to victim, as a killer is a proven enemy of society.
If the law is not enforced then cure is enforcement, not repeal. If death penalty is an evil it is a
necessary evil and a criminal chooses this voluntarily.

Q.10 Criminal behavior is a disease which requires treatment rather than

punishment”. Write critical notes on this statement.
Or
Q.10. Explain the concept of Punishment. What are the different theories of
Punishment? Discuss.
Or
Q. 10. What are the different theories of Punishment?

Ans. Punishment is the coercion used to enforce the law of the land, which means it is one of
the pillars of modern civilization. Providing a peaceful society and life is the duty of the state.
Lack of punishment causes the law to lose its force and eventually creates a society unable to
maintain law and order and a government unable to protect its people.
However, the reformative approach to curb crimes such as these and reform the convicts has
come up in order to protect the basic rights a human is entitled to. Developed by psychologists,
sociologists, and physiologists in order to create a system where the convicts could be reformed
and released back into society as citizens. The author has identified that this method has been
sustained in several Supreme Court proceedings and that the procedure has been used in the
case of juvenile offenders.
Rehabilitation seeks to bring about fundamental changes in offenders and their behavior. As in
the rehabilitation generally works through education and psychological treatment to reduce the
likelihood of future criminality.
The Concept of Reformative Theory
According to this theory, the object of punishment should be the reform of the criminal, through
the method of individualization. It is based on the humanistic principle that even if an offender
commits a crime, he does not cease to be a human being.

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He may have committed a crime under circumstances which might never occur again. Therefore
an effort should be made to reform him during the period of his incarceration. The object of
punishment should be to bring about the moral reform of the offender. He must be educated and
taught some art or industry during the period of his imprisonment so that he may be able to start
his life again after his release from jail.
While awarding punishment the judge should study the character and age of the offender, his
early breeding, his education and environment, the circumstances under which he committed the
offence, the object with which he committed the offence and other factors. The object of doing
so is to acquaint the judge with the exact nature of the circumstances so that he may give a
punishment which suits the circumstances.
The advocates of this theory contended that by a sympathetic, tactful, and loving treatment of the
offenders, a revolutionary change may be brought about in their characters. Even the cruel
hardened prisoners can be reformed and converted into helpful friends with good words and mild
suggestions.
Severe punishment can merely debase them. Man always kicks against pricks. Whipping will
make him balk. The threat will result in resistance. Prison hell may create the spirit of defiance
of God and man. Hanging a criminal is merely an admission of the fact that human beings have
failed to reform the erring citizen. Corporal punishments like whipping and pillory destroy all the
finest sentiments and tenderness in man. Mild imprisonment with probation is the only mode of
punishment approved by the advocates of reformative theory.
According to the view of Salmond, if criminals are to be sent to prison to be transformed into
good citizens by physical, intellectual and moral training, prisons must be turned into
comfortable dwelling places. There are many incorrigible offenders who are beyond the reach of
reformative influences and with whom crime is not a bad habit but an instinct and they must be
left to their fate in despair. But people criticize; the primary and essential end of criminal justice
is deterrence and not reformation.
The reformative theory is also known as rehabilitative sentencing. The purpose of punishment is
to “reform the offender as a person, so that he may become a normal law-abiding member of
the community once again. Here the emphasis is placed not on the crime itself, the harm

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caused or the deterrence effect which punishment may have, but on the person and the
personality of the offender.”
The Reformative theory is supported by criminology. Criminology regards every crime as a
pathological phenomenon a mild form of insanity, an innate or acquired physiological defect.
There are some crimes which are due to willful violation of the moral law by normal persons.
Such criminals should be punished adequately to vindicate the authority of the moral law.
In terms of the theory, offenders largely commit crime because of psychological factors,
personality defects, or social pressures. Sentences are consequently tailored to the needs of the
individual offender, and typically include aspects of rehabilitation such as community service,
compulsory therapy or counseling. The pre-sentencing report by a probation officer or
psychologist plays a substantial role in assisting the judicial officer to arrive at an appropriate
sentencing decision.
According to the supporters of the Reformative theory, punishment is not imposed as a means for
the benefit of others. Rather, punishment is given to educate or reform the offender himself.
Here, the crime committed by the criminal is an end, not a means as in the Deterrent theory. This
view is commonly accepted in the present time.
Punishment is inflicted on a criminal for his reformation. This theory does not justify capital
punishment. Punishment is inflicted only to educate or reform the criminal himself. Punishment
does not always make reform in a criminal. On the other hand, kind treatment sometimes
produces a better result than punishment. It may be more favorable to the reformation of the
criminal.
Forgiveness can change the nature of the criminal and give the scope of repentance and
reformation to the criminal. It is clear that the reformative theory does not justify capital
punishment. It supports the reformation of the criminal. According to this theory, a crime is
committed as a result of the conflict between the character of a man and the motive of the
criminal.
One may commit a crime either because the temptation of the motive is stronger or because the
restraints imposed by character is weaker the reformative theory wants to strengthen the
character of the man so that he may not become an easy victim to his own temptation this theory

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would consider medicine. According to this theory, crime is like a disease so you cannot cure by
killing.
For this reason, a punishment like imprisonment should be given to criminal and all prisons
should be transformed into residences where physical moral and intellectual training should be
given in order to improve the character of criminal. A crime is committed as a result of the
conflict between the character and the motive of the criminal. One may commit a crime either
because the temptation of the motive is stronger or because the restraints imposed by character is
weaker.
This theory would consider punishment to be curative or to perform the function of medicine.
According to this theory, crime is like a disease. This theory maintains that you can cure by
killing. The ultimate aim of reformists is to try to bring about a change in the personality and
character of the offender, so as to make him a useful member of society.
It must be noted that the reformative theory shows a radical departure from the earlier theories
and seeks to bring a positive change in the attitude of the offender so as to rehabilitate him as a
law-abiding member of society. Thus punishment is used as a measure to reclaim the offender
and not to torture him. This theory condemns all kinds of corporal punishments.
The major thrust of the reformist theory is rehabilitation of inmates in penal institutions so that
they are transformed into law-abiding citizens. It focuses greater attention on humanly treatment
of prisoners inside the prison. It suggests that instead of prisoners being allowed to idle in jail,
they should be properly taught, educated and trained so as to adjust themselves to normal life in
the community after their release from penal institution.
This purpose may be achieved through the agencies of parole and probation which have been
accepted as modern techniques of reforming the offenders all around the world. Thus the
advocates of this theory justify prisonisation not solely for the purpose of isolating criminals and
eliminating them from the society, but to bring about a change in their mental attitude through
effective measures of reformation during the term of their sentence. In Narotam Singh v. State
of Punjab, AIR 1978 SC 1542, the Supreme Court has taken the following view-
“Reformative approach to punishment should be the object of criminal law, in order to
promote rehabilitation without offending community conscience and to secure social justice.”

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Existing Law supporting the view of Reformative Theory

In progressive states, provision is made for the prevention of habitual offenders. Bortal schools
have been set up. Provision is made for a system of probation for First Offenders. This theory is
being growingly adopted in the case of Juvenile Offenders. The oldest legislation on the subject
in India is the Reformatory Schools Act, 1890 which aimed at preventing the depraved and
delinquent children from becoming confirmed criminals in the coming years. It applied to
children under the age of 15 years. The Reformatory Schools Act has been extensively
amended in its application to the various States by State legislatures.
The Government of India passed in 1960 the Children Act which applies to the Union
Territories. This Act was amended in 1978. This amendment broadened the aim of the Children
Act, 1960.
The Probation of Offenders Act, 1958 has been passed with a similar object in view. About the
Act, the Supreme Court observed in Rattan Lal v. State of Punjab, AIR 1965 SC 444 that the
Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
In Musa Khan v. State of Maharashtra, AIR 1976 SC 2566 the Supreme Court observed that
this Act is a piece of social legislation which is meant to reform juvenile offenders with a view to
prevent them from becoming hardened criminals by providing an educative and reformative
treatment to them by the government.
Section 27 of the Criminal Procedure Code, 1973 provides that any offence not punishable
with death or imprisonment for life committed by any person who, at the date when he appears
or is brought before the court, is under the age of 16 years, may be tried by the court of a Chief
Judicial Magistrate or by any court especially empowered under the Children Act, 1960 or any
other law for the time being in force providing for the treatment, training and rehabilitation of
youthful offenders.
Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the release
on probation of good conduct or after admonition.
Supporters of Reformative Theory
(a) Physiologists

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Physiologists hold that crimes are due to physiological defect. Therefore, criminals should not be
punished. Rather, they should be treated in hospitals by psychologists or
psycho-analysts. That is why, according to this theory, crime is not a deliberate act of violation
on part of the criminal. It is only due to his mental instability. Criminal anthropologists hold
that criminals should not be punished. Rather, they ought to be treated in hospitals or
reformatories. But the problem is that all crimes are not due to insanity or physiological defects.
There are some crimes which are deliberate violations of the moral law and should be punished.
(b) Sociologists
Again there are some crimes which are due to social inequalities. For instance, theft is a crime.
The authority of the moral law demands that the person who is involved in theft should be
punished. But if we investigate the case properly we understand that the cause of theft is poverty.
Therefore, criminal sociologists view that we cannot think of prevention of crime without
improving the social and economic conditions of the common people. Crimes can be prevented
only if society is reconstructed on the basis of justice and equity. The advocates of this view are
called criminal sociologists.
(c) Psychologists
This theory is supported by psychologists. They hold that crimes are not due to willful violation
of the moral law. Rather, crimes are due to mental disorder or insanity. That is why criminals
should not be punished. They should be treated in hospitals or reformatories for reformation. The
treatment of the criminal should be educational or medical rather than punishment. But there are
some crimes which are a deliberate violation of the moral law committed by some people.
Therefore, they should be punished. So, punishment prevents others from committing similar
crimes. It also can refine the criminal’s mind not to take to the wrong path.
Modern Trends
The Reformative methods have proved useful in case of juvenile delinquents, first offenders &
women. Sex-psychopaths also seem to respond favorably to the reformative method of
punishment. More recently, the reformative theory is being extensively used as a method of
treatment of mentally depraved offenders. This present trend is to treat the offender rather than to
punish him.
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This is done by classifying offenders on the basis of age, sex, the gravity of the offense and
mental depravity. Thus clinical method pre-supposes punishment as a kind of social surgery
since criminal is essentially a product of conflict between the interests of individuals in the
society. In recent years, the supreme court of India has awarded compensation to victims who
suffered due to torture or negligence by the prison or jail authorities. [Sebastian Hongrey v.
Union of India AIR 1984 SC 1026]
Gandhi ji said, “Hate the sin and not the sinner”. It should be a guide in the administration of
criminal justice.
In the words of Justice Krishna Iyer: “a Holistic view of sentencing and a finer perception of
the effect of imprisonment give short shrift to draconian severity & self-defeating. Perhaps the
time has come for Indian Criminologists to rely more on Patanjali Sutra as a scientific &
curative for crimogenic factors than on the blind jail term set out in the Penal code & that
may be why Western researchers are now seeking Indian Yogic ways of normalizing the
individual & the group.”
Mr. Justice Krishna Iyer focuses on certain elemental factors which are of great significance for
criminology thoughts particularly so far as our country is concerned to him the Gandhian
diagnosis is the key to the pathology of delinquency & therapeutic role of punishment. It treats
the whole man as a healthy man & every man is born good and so the modern principles of
penology and reform and rehabilitation of the offender ought to guide and inform the Indian
criminal courts.
The spirit of correctional philosophy in criminology is rightly described by Justice Krishna Iyer,
“Every saint has a past and every sinner a future, never write off the man wearing the
criminal attire but remove the dangerous degeneracy in him, restore his retarded human
potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the
repressive, though hidden, injustice of the social order which is vicariously guilty of the
criminal behavior of many innocent convicts. Law must rise with life and jurisprudence
responds to humanism.”
In Sunil Batra, Karuna (Mercy) is treated as the mainspring of jail justice which would obviate
torture some behavior which spoils the reformatory and correctional process. According to

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Krishna Iyer J., “fair treatment will enhance the chance of rehabilitation by reactions to
arbitrariness.” [Sunil Batra v. Delhi Administration, AIR 1978 SC 1675]
Modern times understands the need to reform the criminal & he commits crimes because of
social; inequalities & injustice i.e. poverty, illiteracy, squalor & disease. The offender is to be
treated as a sick man to be healed rather than as a malefactor to be chastised. Further
Socialization of the offender would eliminate the factors which motivated him to commit the
crime & he gets a chance of leading a normal life in society.
The reformative theory made a special focus on greater attention on humanly treatment of
prisoners inside the prison. This purpose may be achieved through the agencies of parole &
probation which have been accepted as modern techniques of reforming the offenders all around
the world. The modern view is that “the mainspring of criminality is greed and if the offender is
made to return the ill-gotten benefits of crime, the spring of criminality would dry up”.
The Apex Curt in D.K. Basu v. State of West Bengal, 1997 Cr.L.J. 743, held that custodial
torture or death in the lockup strikes a blow at the rule of law and therefore, the court even
recommended a change in the law of evidence to throw the onus on the police or jail authorities
as to how a prisoner in their custody came to meet the death under suspicious circumstances.
State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416.
The Court has provided monetary compensation to the victims of police excesses in several
cases. [Joginder Kumar v. State of U.P. 1994 Cri L.J. 1981] In the case of Ashok Kumar,
who succumbed to injuries sustained while carrying a load at the behest of the Roorkee Sub-jail
authorities, the National Human Rights Commission directed U.P. State government to pay One
Lakh rupees to his parents as compensation & issued guidelines that an under-trial cannot be put
to hard task.
Kautilya regarded the object of punishment as reformatory. Reformative punishment may mean
either that the offender is reformed while being punished or that he is reformed by the
punishment itself qua the punishment.
Conclusion

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Crime & conflict result in harm to people, Restorative Justice seeks to heal & right the wrongs,
focusing on the needs of the harmed & those responsible for the harm. It encourages
accountability, healing & closure for all.
The reformative theory is also known as rehabilitative sentencing. The purpose of punishment
is to:
“Reform the offender as a person, so that he may become a normal law-abiding member of the
community once again. Here the emphasis is placed not on the crime itself, the harm caused
or the deterrence effect which punishment may have, but on the person and the personality of
the offender.”
Rehabilitation seeks to bring about fundamental changes in offenders and their behavior. As in
the rehabilitation generally works through education and psychological treatment to reduce the
likelihood of future criminality. In terms of the theory, offenders largely commit crime because
of psychological factors, personality defects, or social pressures.
Sentences are consequently tailored to the needs of the individual offender, and typically include
aspects of rehabilitation such as community service, compulsory therapy or counseling. This
theory favors the humanitarian sentiments of the age. Therefore, punishment is imposed for the
welfare of the criminal himself. This Theory aims at transforming the criminal minds in a way
that the inmates of the peno-correctional institutions can lead the life of a normal citizen.
It aims at their rehabilitation and conforming to the norms of the society; into the law-abiding
member. This theory condemns all kinds of corporal punishments. It looks at the seclusion of the
criminals from society as an attempt to reform them and to prevent the person from social
ostracism. Though this theory works stupendously for the correction of juveniles and first-time
criminals as relies upon humanitarian modes of punishment in the case of hardened criminals,
this theory may not work with the effectiveness.
A recent increased public awareness of alternatives to the classic prison system has created a
favorable social climate for the growth of reformative justice in the public domain. The growth
of the victim identity and victimization of our society has created satisfactory conditions for
public acceptance of the ideas of restorative justice, especially through mass media.

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Q.11 What are the main causes of sexual offences? Is it stimulation? Explain
in detail.
Ans. Crime is eternal-as eternal as society. It is true that struggle against crimes was above all
a struggle against poverty, sickness, alcoholism and prostitution. This in other words, means that
if these social evils could be eliminated, the problem of crime prevention would be considerably
eased. There are, however, certain categories of crime which do not respond to these hypotheses
favorably because of the pervasive tendency of human nature. Sex crime is obviously one among
such crimes which prevails in almost all societies through ages. Prof. Tannenbaum has rightly
says that "crime is inevitable in society". Sexual violence occurs today in the context of rapid
westernization, with new forms of female subservience the effects of urbanized lifestyles on
male-female relations.
In this chapter, we are trying to study the determinants of offences and criminological aspects of
sexual offences in the society.
With the advance of science, civilization and culture, the complexities of life have enormously
multiplied. Modern mechanization and urbanization has brought about total disintegration of the
‘family’ institution which has created serious problems in human life. The control of parents
over their wards has weakened considerably. In fact, it is this parental negligence which is
mainly responsible for growing indiscipline, rowdies and vagrancy among youngsters. It has
been observed that uncontrollable hooliganism among youths has become a serious problem for
law enforcement agencies throughout the world. It has rather become a social disease. As a result
of unhappy development, the incidence of sex delinquency in the form of unmarried motherhood
abortion, rape, kidnapping, enticement, abduction, adultery, incest, indecent assault etc has
become too common.
As in other developed countries, offences are categorized on the basis of the harms they
generate.
A distinction is made between two types of sexual offences: rapes and other sexual offences.
Firstly, rapes belong to the most harmful category of the "sexual crimes". Secondly,
other sexual offences include indecent assaults, engaging minors in indecent acts and
other offences against public decency; they are defined as "délicts".
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Like western country, the sex delinquency in India has also recorded an upward trend in recent
decades. Despite repressive socio-legal measures to control sex crime, the ‘permissive’ trend of
the modern Indian society is causing obstruction for prosecution and punishment of
sexual-offenders. These offences, therefore, have thrown a great challenge before the criminal
justice administration.
So far the criminological aspects of sexual offences is concerned, prior to the codification of
Hindu Law, polygamy was in vogue for a long time. Perhaps, the justification for the acceptance
of this practice was that it provided legitimate outlet for persons to pacify their sex urge within
the family itself.
Theory Regarding Criminological aspects of Sexual Behaviour:
The theories about why sexual offenders commit sexual violence or assault are numerous and
varied. They range to both ends of the "nature vs. nurture" debate, and include biological factors
such as evolution, physiology, substance abuse, and psychopathology as well as environmental
factors such as attitudes, sex roles, sex and power motives, social learning, and dynamics within
a relationship.
It has been popular to attribute criminal behaviour to one cause or factor, or to one set of factors.
It is difficult to explain delinquency and crime or any other form of human behaviour. No
unilateral theory, however profound, whether it is nurtured and expounded by biologists,
psychologists, psychiatrists, or sociologists, can ever hope to answer the question of the totality
of criminal behavior. The traditional approach to causation in India has been the socio-economic.
However some criminologists have insisted that biological or constitutional factors are more
influential in eliciting antisocial behavior. The geographical determinists have espoused weather,
the seasons, topography, humidity, and the like to explain why people behave as they do. The
psychiatrists, the sociologists, the endocrinologists, the psychologists and the religionists, as well
as the racists and the eugenics, have all attempted to give us the answer. The problem is indeed
complex. Yet this riddle of crime causation remains to bedevil society. No unilateral theory,
however profound, whether it is nurtured and expounded by biologists, psychologists,
psychiatrists, or sociologists, can ever hope to answer the question of the totality of criminal
behavior.

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Bio-scientists have opined that sex involvement is necessary for procreation, physical fitness and
mental satisfaction of mankind. Like any other society, the Indian society expects that sexual
activities must be confined to martial relationship and sex indulgence outside marriage wedlock
is an offence punishable under the penal law. Another notable feature regarding sexuality is that
chastity is stressed more on women than men.
Commenting on sexual behavior of mankind Donald Taft observes that sexuality being a
biological phenomenon needs no specific training. The bio-physical changes with the growth of
human body automatically prepare men and women for sex behavior. Sex-crimes have
now-a-days become so common that people have lost all seriousness about them and they are
looked upon as an ordinary mode of human behavior.
The factors which are mainly responsible for steep rise in sex offences are as
follows:-
Man is a creature of endless moods and caprices. Just as he wants change and variety in food he
eats and clothes he wears and the music he hears, so he finds it difficult to remain absolutely
faithful to one sex-partner. Thus, variety being the essence of enjoyment, men and women
indulge in extra-marital relations which are not always approved by the society or the law.
The institution of religion which was once regarded as potential weapon of social control has lost
its force in modern times. So is the case with moral and ethical values of life. Due to the impact
of western culture, the age-old traditional norms and customs are fast losing their hold on Indian
society.
In spite of legal restrictions imposed on illegal sex indulgence, the incidence of this vice is on a
constant increase. The obvious reason for the upward trend in sex-offences is that sexuality
which is bio-physiological phenomenon is as essential to human organism as food or water. In
fact, life and sex are inseparable. When harnesses along correct lines, it is a great creative force
in all walks of life. That apart, sexual impulse affects all alike whether male or female, rich or
poor, educated or illiterate, men of high status or lower status. The intensity of sex emotion
among individuals may, however, vary depending on their personal traits and bio-physical
factors. Sex crimes arise out of the physiological urge of human beings to satisfy their sexual
impulse. If this basic urge is not pacified through legitimate means, the individual may resort to

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forbidden sexual acts which eventually result in sexual crime. The problem of prostitution as a
worse type of sex delinquency necessarily arises out of this basic consideration about the sex
activities of mankind. The forms of sex-crimes are rape, or sexual activities, adultery, incest,
outraging the modesty of a woman, prostitution, sodomy, pornography, fornication,
homosexuality, exhibitionism, etc. The list is only illustrative and not exhaustive. Obscenity,
though not a sex- offence may, however, act as a catalyst for sexual criminality. Minors may also
be kidnapped for the purpose of prostitution.
In particular, it is now well established that sexual activities with young girls of immature age
have a traumatic effect which often persists through life, leading subsequently to disorders,
unless there are counter-balancing factors in family life and .n social attitudes which could act as
a cushion against such traumatic effects.
Note should also be taken of sentimental interest in the crime problem i.e fear, desire for
revenge, a certain fascination, and a morbid interest either in the victim or the perpetrator of
crime. It has been somewhat extravagantly said that morbid interest in crime express
unconscious desire to be criminals - a desire to throw off the restraints of civilized existence. It is
clear that sentimental interest in crime, whether taking the form of negative hate or positive
morbid sympathy, is not what is needed for the objective understanding and prevention of crime,
and that its prevalence may be listed as a factor in the causation of crime. No child enters life as
a criminal. The interest is enhanced by the discovery of the wide variety of human traits which
the criminal possesses and the wide variety of types of which the criminal class is composed.
Paradoxical though it sounds, one may hardly even describe criminals as a class as antisocial.
Their criminal acts are indeed by definition antisocial, and no one would minimize the
seriousness of some of them. Yet their criminal behaviour on investigation is often found to be
but one aspect of their total behaviour.
Here in this regard, Lombroso’s ‘discovery’ was old news, the significance he gave to it was
altogether novel. For him, the apparent distinctiveness of the criminal type prompted an idea that
no one had imagined before: the idea of a distinctive science of the criminal. His conception of
the criminal as a naturally occurring entity - a fact of nature rather than a social or legal product -
led Lombroso to the thought of a natural science which would focus upon this entity, trace its

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characteristics, its stigmata, its abnormalities, and eventually identify the causes which make one
person a criminal and another a normal citizen.
Beccaria had been right in his argument that, rather than being entirely the product of free will,
crime must be influenced by factors in the larger society. But Lombroso proposed that criminals
were biological throwbacks to an earlier evolutionary stage, people more primitive and less
highly evolved than their noncriminal counterparts. Criminal behavior is associated, in greater or
lesser degree, with such social and personal pathologies as poverty, bad housing, slum-residence,
lack of recreational facilities, inadequate and demoralized families, mental retardation, emotional
instability, and other traits and conditions. It has been found that many persons with those
pathological traits and conditions do not commit crimes and that person in the upper
socio-economic class frequently violate the law, although they are not in poverty, do not lack
recreational facilities, and are not mentally retarded or emotionally unstable. Obviously, it is not
the conditions or traits themselves which cause and they also are sometimes absent when
criminality does occur. A generalization about crime and criminal behavior can be reached by
logically abstracting the conditions and processes which are common to the rich and the poor, the
males and the females, the blacks and the whites, the urban and the rural-dwellers, the young
adults and the old adults, and the emotionally stable and the emotionally unstable who commit
crimes. An explanation of criminal behavior should be consistent with a general theory of other
human behavior, but the conditions and process said to produce crime and criminality should be
specific.
On the other hand, E. H. Sutherland, have tried to discover processes or relationships which
will explain all crime, in spite of its great variety. Thus we have theories of social
disorganization and differential association, theories of delayed maturation, theories of economic
exploitation, theories of anomic or formlessness, theories of subgroup influence, and so forth.
Sutherland explains how it was that criminals came to commit acts of deviant behavior. In his
theory, Sutherland assess’ that criminal behavior is not to be explained away by deeming the
criminal ‘simple.’ Sutherland alleges that just as societal norms are learned through social
interaction and observance, so too are social deviations.
According to his Differential Association theory which says the followings:

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Criminal behavior is learned

• Criminal behavior is learned in interaction with others in a process of communication.
• Learning criminal behavior occurs within primary groups (family, friends, peers, their
most intimate, personal companions)
• Learning criminal behavior involves learning the techniques, motives, drives,
rationalizations, and attitudes.
• The specific direction of motives and attitudes is learned from definitions of the legal
codes as favorable or unfavorable.
• A person becomes a criminal when there is an excess of definitions favorable to violation
of law over definitions unfavorable to violation of law.
• Differential associations vary in frequency, duration, priority, and intensity.
• The process of learning criminal behavior involves all the mechanisms involved in any
other learning.
Although criminal behavior is an expression of general needs and attitudes, criminal behavior
and motives are not explained nor excused by the same needs and attitudes, since non-criminal
behavior is explained by the same general needs and attitudes.
Causation of Sexual Offences:
In treating the causes of crime, it is necessary to bear in mind just what we mean in this
connection by "causes." We can never be sure that a given set of factors will always produce a
crime or a delinquent act. As a result, some criminologists on criminal behavior state that it is
futile to discuss causes at all. As a first step to a better understanding of crime- and its causes- it
is well to cease discussing crimes and criminals in any general sense and concentrate solely on
individual crime situations and individual criminals. However, it will be not easy to study what
personal and social factors encourage antisocial behaviour.
1. Cultural Factors:
In some cultures, sexual activity is considered acceptable only within marriage, although
premarital and extramarital sex is also common. Some sexual activities are illegal either
universally or in some countries, and some are considered against the norms of a society. For

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example, sexual activity with a person below some age of consent and sexual assault in general
are criminal offenses in most jurisdictions.
Sex is mostly viewed as a biological urge; it has a socio-cultural dimension as well. India is a
vast country with great socio-cultural diversity and many different ethnic groups, each with its
own distinct cultures. However, the entire Indian culture is religion based and finds its root from
the ancient Holy Scriptures. The sexual culture of Indian society stems from the Kama Sutra of
Vatsyana, an epic on sex. This text is considered holy and is accepted culturally, even though
many practices contained therein are offences under modern law. In some cultures, sexual
activity is considered acceptable only within marriage, although premarital and extramarital sex
is also common.
Many of the conflicts observed between the sexual practices that are accepted in Indian culture
but not by the law can be explained on the basis that the Indian legal system is borrowed from
that of the British. Therefore, traditional British culture has a great influence over the legal
system of India. Although some changes to the law have taken place over the last 65 years of
independence in order to meet quintessential India needs, the basic structure and framework
remains the same. A majority of Indian are unaware of the various aspects of statutory sexual
offences, although 150 years have elapsed since the inception of the Indian Penal Code (IPC).
Sexual practices that are accepted culturally and have become part and parcel of Indian society
but which, nonetheless, are considered offences in the eye of the law.
Where the ideology of male superiority is strong—emphasizing dominance, physical strength
and male honour—rape is more common. In many societies, for example, "women, as well as
men, regard marriage as entailing the obligation on women to be sexually available virtually
without limit." Even outside of marriage, women may have "extremely few legitimate options
to refuse sexual advances." When looking at sexual assault as a learned behavior, the
underlying theory is that "social conditions, such as cultural norms, rules, and prevailing
attitudes about sex, mold and structure the behavior of the rapists within the context of the
broader social system, foster rape-prone environments and, in effect, teach men to
rape." Sometime sexual violence was linked to larger patterns of violence within a society, an
ideology that encourages male aggressiveness (particularly when males are encouraged to be

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sexually aggressive), and male dominance. The combination of cultural values that emphasize
male dominance with economic transition may be particularly problematic, as "men turn their
aggression against women when they can no longer control patriarchally or support
economically." Cultural norms that devalue women can combine with norms that value male
dominance and aggressiveness to create a subculture that sanctions sexual violence. In addition,
sexual assault is associated with cultures experiencing high levels of violence and conflict:
"Countries with a culture of violence, or where violent conflict is taking place, experience an
increase in almost all forms of violence, including sexual violence."
In some cultures, rape was seen less as a crime against a particular girl or woman than as a crime
against the head of the household or against chastity. As a consequence, the rape of a virgin was
often a more serious crime than of a non-virgin, even a wife or widow, and the rape of a
prostitute or other unchaste woman was, in some laws, not a crime because her chastity could not
be harmed. Furthermore, the woman's consent was under many legal systems not a defense. In
seventeenth-century France, even marriage without parental consent was classified as rape. The
penalty for rape was often a fine, payable to the father or the husband whose "goods" were
"damaged".
It has been observed that in some laws the woman might marry the rapist instead of his receiving
the legal penalty. This was especially prevalent in laws where the crime of rape did not include,
as a necessary part, that it be against the woman's will, thus dividing the crime in the current
meaning of rape, and a means for a couple to force their families to permit marriage.
Strange Customs and Taboos
In some societies more particularly the tribal communities, in remote areas of the world, often
have different understandings of and customs concerning sexual offences. Some of these
customs have evolved into customary law, either operating within a larger state structure or
being utilized in a clandestine manner in regions where state authorities have limited control and
tribal peoples have either little knowledge of state laws or scant respect for them, preferring their
own forms of justice. Thus, understanding tribal customs in the instance of sexual offences
involves reorienting concepts of crime as offenses that upset a pattern of social relationships
within and between communities, and justice as restorative of these relationships.

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In many tribal societies, sexual intercourse is considered consensual, and there is no concept of a
sexual offense, which offends the wider community. Customary law regulating sexual behavior
is principally concerned with adultery, considered an infringement of the exclusive sexual
privilege of the husband over the wife, or vice versa in more equalitarian bands. Take an
instances of offenders among the Garo from Meghalaya (India) can be subject either to
customary law, under which the offense is non-discriminatory in gender terms, or the (colonial)
Indian Penal Code, which discriminates against women.
The tribal society regulates, and maintains sexual behaviour as a process of socialization through
norms, and values in the name of sanction, and avoidance. Consequently, sexual bonds, and
incest have existed as universal practices of human societies, and tribals in particular, through
different social institutions such as, marriage, family, and kinship. Anthropology testifies that
variations exist between different cultural groups in their patterns of sexual behaviour. Every
society must control potentially disruptive sexual behaviour through some systems. But it is clear
that effective control can be achieved in diverse ways. Behaviour which is discouraged in one
society may be tolerated in a second, and encouraged in a third. Also, substantial differences may
exist between subgroups within a society. The sexual privilege, avoidance, taboo, and incest
among the members have been helping the tribals to sustain their discipline, continuity, and
existence. Among many primitive tribal peoples even today, a marriage is not solemnized until
the first child is born, and if no child is born the man is at liberty to leave the woman.
In the context of pressure exerted by the societal norms and legal sanctions of dominant
traditions, some tribal societies have resorted to utilizing rape as a punishment to control women,
whereas others demonstrate their inability to enforce traditional sanctions against rape in the face
of alien legal codes. Investigating rape thus highlights the plight of tribal communities
worldwide in their struggle to come to terms with colonial histories, development, and
globalization.
Sexual Assault and Male Dominance:
With the current understanding of sexual assault as an act of violence, theorists also came to
understand sexual assault as a manifestation of and means for ensuring female subordination.
"Rape is a result of long-held traditions of male dominance. This male dominance is

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reinforced by prostitution and pornography, in which women are degraded and treated in
subservient ways. In other words, rape is the male response to social inequality between men
and women."
Sexual assault must also be understood historically, in the context of legal and social frameworks
within which women were considered the property of men. Historically, the crime of rape was a
property crime: "Rape was a crime not against the victim, but against the man who owned her,
i.e her husband or father." Thus, the sexual abuse of a woman was more a violation of a man's
property than a violation of a woman's 'bodily integrity.' Rape laws, therefore, originated as a
means of protecting a man's or family's property. As a property crime, the punishment for rape
was often the payment of a sum to the father or brother of the woman. In some countries even
today, families of a victim may seek financial compensation from the rapist's family. The legal
and cultural frameworks within which women have historically been considered the property of
their husbands also support the assumption that men are entitled to sexual access to their wives
and thus contribute to the failure to view marital rape as a crime.
Sexual assault is not only a reflection of societal arrangements that devalue women (i.e., it is
acceptable to target and violate women because they are not valued), but itself serves to reinforce
women's subordination and ensure their conformity with preset gender roles: "Rape has been
used historically for the subjugation of women and as a means of ensuring that women conform
to the behavior patterns required by the community."
Individual Factors (Biological factors)
1. Sex and Power motives
Research has confirmed that motives of power and anger are more prominent in rapists’
rationalizations for sexual aggression than sexual desires are. And sexually aggressive men
openly admit that their sexual fantasies are aggressive and sadistic.
2. Sexual gratification
Though anger and power are believed, by some academics, to be the primary motivation for most
rapes, According to Richard Felson that rape is an aggressive form of sexual coercion and the
goal of rape is sexual satisfaction rather than power. Most rapists do not have a preference for
rape over consensual sex. In one study, male rapists evaluated with penile plethysmography
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demonstrated more arousal to forced sex and less discrimination between forced and consensual
sex than non-rapist control subjects, though both groups responded more strongly to consensual
sex scenarios.
3. Alcohol and Drugs consumption:
Alcohol has been shown to play a disinheriting role in certain types of sexual assault, as have
some other drugs, notably cocaine. Alcohol has a psychopharmacological effect of reducing
inhibitions, clouding judgments and impairing the ability to interpret cues. The biological links
between alcohol and violence are, however, complex. Research on the social anthropology of
alcohol consumption suggests that connections between violence, drinking and drunkenness are
socially learnt rather than universal. Some researchers have noted that alcohol may act as a
cultural break time, providing the opportunity for antisocial behaviour. Thus people are more
likely to act violently when drunk because they do not consider that they will be held
accountable for their behaviour. Some forms of group sexual violence are also associated with
drinking. In these settings, consuming alcohol is an act of group bonding, where inhibitions are
collectively reduced and individual judgment ceded in favour of that of the group.
Increased vulnerability to sexual violence also stems from the use of alcohol and other drugs.
Consuming alcohol or drugs makes it more difficult for women to protect themselves by
interpreting and effectively acting on warning signs. Drinking alcohol may also place women in
settings where their chances of encountering a potential offender are greater. Alcohol has been
shown to play a significant role in certain types of sexual assault as have some drugs, notably
cocaine.
Psychological Factors
There has been considerable research in recent times on the role of cognitive variables among the
set of factors that can lead to rape. Sexually violent men have been shown to be more likely to
consider the victims responsible for the rape and are less knowledgeable about the impact of rape
on victims. They have coercive sexual fantasies generally get encouraged by access to
pornography, and overall are more hostile towards women than men who are not sexually
violent. In addition to these factors, sexually violent men are believed to differ from other men

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in terms of impulsivity and antisocial tendencies. They also tend to have an exaggerated sense of
masculinity.
Physiology and Neurophysiology
The cause of sexual assault may be found in hormones and other chemicals in the body, as well
as head traumas or brain abnormalities. Researchers in this area have found a correlation
between testosterone levels and aggression, but it is not clear whether testosterone levels lead to
aggressive behavior or rise as a result of aggressive behavior. Trauma and violence have been
proven to have effects on hormones, neurotransmitters, and brain function. Studies examining
brain injuries and abnormalities suggest trauma and violence can lead to an increase in battering
behavior, as well as other violent or impulsive acts.
Psychopathology and Personality Traits
Men who rape have been diagnosed with a wide variety of psychiatric and personality disorders,
most often antisocial personality disorder. Nonetheless, personality testing of rapists has found
no significant differences between sexual offenders and those incarcerated for nonsexual
offenses. The degree of involvement in sexually coercive behavior appears to be related to
personality measures of irresponsibility, a lack of social conscience, and a value orientation
legitimizing aggression, particularly against women.
Most investigators have concluded that there is a great deal of heterogeneity among rapists and
that sexual aggression is determined by many factors. In fact, it has been said that the personality
profile of convicted rapists more closely matches the personality profile of men in the general
population than any other set of felons.
Attitudes and Gender Scheme
Sexually aggressive men are more likely to believe myths about rape and that use of
interpersonal violence is an effective strategy for resolving conflict than are non-aggressive men.
These sorts of beliefs may serve as rationalizations for sexual offenders, allowing them to
imagine that their victim either desired or deserved to experience forced sexual acts. Once men
have developed attitudes that support violence against women, they are likely to misinterpret
ambiguous evidence as confirming their beliefs. Acceptance of rape myths is strongly related to
adversarial sexual beliefs, tolerance of interpersonal violence, and gender role stereotyping.
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Isolation
Isolation greatly facilitates the conditions for the commission of sexual offences. Isolation may
be of many types, physical, social, psychological, religious and even cultural. Most of the rape
cases in India have taken place when the victims were found alone in isolated places like lonely
and insufficiently lit parks, streets, lanes, etc. or any such places. Social isolation refers to
individual’s social status in society. If the person is a bachelor, separated or divorcee, or even an
elderly person living alone, he/she could definitely be vulnerable to such crime. At the time of
communal riot it has been observed that mainly women and girls from the minority religious
community have become victims of sexual offences.
Societal Factors
Factors operating at a societal level that influence sexual violence include laws and national
policies relating to gender equality in general and to sexual violence more specifically, as well as
norms relating to the use of violence. While the various factors operate largely at a local level,
within families, schools, workplaces and communities, there are also influences from the laws
and norms working at the national and even international level. In India, there are some local
communities in which wives are often sexually assaulted by their husbands as a matter of
custom. Assaulted women are also not very unhappy because they also accept that sort of assault
as a mark of love shown to them by their husbands.
Sexual violence committed by men is to a large extent rooted in ideologies of male sexual
entitlement. This belief grants women extremely few legitimate options to refuse sexual
advances. Many men thus simply exclude the possibility that their sexual advances towards a
woman might be rejected or that a woman has the right to make an autonomous decision about
participating in sex. In many cultures women, as well as men, regard marriage as entailing the
obligation on women to be sexually available virtually without limit though sex may be
culturally proscribed at certain times, such as after childbirth or during menstruation. Societal
norms around the use of violence as a means to achieve objectives have been strongly associated
with the prevalence of sexual offences. In societies where the ideology of male superiority is
strong – emphasizing dominance, physical strength and male honour – rape is more common.

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However it is pertinent to discuss the following societal factors which lead to sexual offences in
society.
1. Early Childhood Environment
There is evidence to suggest that sexual violence is also a learnt behaviour in some men,
particularly in regard to child sexual abuse. Studies on sexually abused boys have shown that
around one in five continue in later life to molest children themselves. Such experiences may
lead to a pattern of behaviour where the man regularly justifies being violent, denies doing
wrong, and has false and unhealthy notions about sexuality. An early faulty socialization
continues to influence the further course of action in the matter of sexual behaviour.
There is evidence to suggest that sexual violence is also a learnt behaviour in some men,
particularly as regards child sexual abuse. Childhood environments that are physically violent,
emotionally unsupportive and characterized by competition for scarce resources have been
associated with sexual violence. Sexually aggressive behaviour in young men, for instance, has
been linked to witnessing family violence, and having emotionally distant and uncaring
fathers. Men raised in families with strongly patriarchal structures are also more likely to become
violent, to rape and use sexual coercion against women, as well as to abuse their intimate
partners, than men raised in homes that are more egalitarian.
2. Family honour and sexual purity
Another factor involving social relationships is a family response to sexual offence that blames
women without punishing men, concentrating instead on restoring lost family honour. Such a
response creates an environment in which rape can occur with impunity.
3. Global trends and economic factors
Many of the factors operating at a national level have an international dimension. Global trends,
for instance towards free trade, have been accompanied by an increase in the movement around
the world of women and girls for labour, including for sex work. Economic structural adjustment
programmes, drawn up by international agencies, have accentuated poverty and unemployment
in a number of countries, thereby increasing the likelihood of sexual trafficking and sexual
violence.
4. The way males are socialized and sexual scripts
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It has been argued that rape may be caused by the way males are socialized in regard to
sexuality. Boys are brought up to be sexually aggressive, dominant and conquering, as a way of
affirming their masculinity. Catharine MacKinnon argues that men rape "for reasons that they
share in common even with those who don’t, namely masculinity and their identification with
masculine norms and in particular being the people who initiate sex and being the people who
socially experience themselves as being affirmed by aggressive initiation of sexual
interaction". According to Check and Malamuth, men are taught to take the initiative and
persist in sexual encounters, while women are supposed to set the limits. This classical sexual
script is often popularized through television shows, popular films and pornography, which
depict the man making a sexual advance and the woman initially resisting, but then finally
positively responding by falling in love with him or experiencing orgasm. The implied message
is that men should persist beyond a woman's protest and women should say "no" even if they
desire sex. It seems that the more traditional the society, the closer the adherence to this sexual
script. For this reason, many men do not believe that a woman means "no" when she says "no",
and they feel entitled to continue to pressure the woman, and ultimately coerce or force her into
sex; consent often becomes confused with submission. In many societies, men who do not act in
this traditional masculine way are ostracized by their peers and considered effeminate. In some
cultures it is believed—by both men and women—that men have uncontrollable sexual urges and
instincts, which cannot be managed in any way, and that once they are sexually aroused they
should be provided with sex as a right. On the other hand young girls are expected to uphold the
honour of their family by maintaining their "reputation" and preserving their virginity. As a
result, assaults on women, especially those perceived as "easy" and "known" to have had sex
with many partners, are rarely judged, and are justified by the myths that men simply cannot
control their sexual needs, and that "good" girls do not get raped, but only those who act
irresponsibly and entice men.
5. Sexual Expectations and Rape Myths
Expectations transmitted by our many cultures typically encourage men to feel superior, entitled,
and that they should be always on the lookout for and ready to initiate sex in their relationships
with women. At the same time, these sexual scripts teach women to feel responsible for setting

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the limits and pace of sexual contact in their relationships with men. Rape myths typically deny
the existence of sexual assault, excuse it, and minimize the seriousness of its effects. Acceptance
of rape myths is correlated with sexually aggressive behavior.
6. Cultural Mores
Studies by anthropologists demonstrate the critical role that socio-cultural mores play in defining
and promoting offences against women. Cultures differ in the amount of intimate partner
violence, as well as the acceptability of this violence. Nearly all societies tolerate rape and have
mechanisms that perpetuate violence.
7. The sex industry and rape
It has been observed in the society that the acceptance of these sexual practices increases sexual
offences against women, by reinforcing stereotypical views about women, who are seen as sex
objects which can be used and abused by men, and by desensitizing men; this being one of the
reasons why some theorists oppose the sex industry. They argue that pornography eroticizes the
domination, humiliation, and coercion of women, and reinforces sexual and cultural attitudes that
are complicit in rape and sexual harassment. From the early days of the modern women’s
movement, feminists contended that pornography encouraged sexual aggression towards women
by portraying them as nothing more than sex objects, a view that is supported in the research. It
is depictions of violence against women, rather than sexually graphic material that encourage
acceptance of violence and callousness toward women who are its victims. Television and
movies often send the message that violence works.
8. Physical and Social Environment
While fear of rape is typically associated with being outside the home, the great majority of
sexual offences actually occurs in the home of the victim or the abuser. Nonetheless, abduction
by a stranger is quite often the prelude to a rape and the opportunities for such abduction are
influenced by the physical environment. The social environment within a community is,
however, usually more important than the physical surroundings. For instance, in some places,
rape can even occur in public, with passers by refusing to intervene. The police may also treat
complaints of rape leniently, particularly if the assault is committed during a date or by the
victim’s husband or very close relatives. Where police investigations and court cases do proceed,
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the procedures may well be either extremely lax or else corrupt – for instance, with legal papers
being ‘‘lost’’ in return for a bribe.
9. Social norms
Sexual violence committed by men is to a large extent rooted in ideologies of male sexual
entitlement. These belief systems grant women extremely few legitimate options to refuse sexual
advances. Some men thus simply exclude the possibility that their sexual advances towards a
woman might be rejected or that a woman has the right to make an autonomous decision about
participating in sex. In some cultures women, as well as men, regard marriage as entailing the
obligation on women to be sexually available virtually without limit, though sex may be
culturally proscribed at certain times, such as after childbirth or during menstruation.
Societal norms around the use of violence as a means to achieve objectives have been strongly
associated with the prevalence of rape. In societies where the ideology of male superiority is
strong, emphasizing dominance, physical strength and male honour, rape is more common.
Countries with a culture of violence, or where violent conflict is taking place, experience an
increase in almost all forms of violence, including sexual offences.
10. Poverty
Poverty is linked to both the perpetration of sexual violence and the risk of being a victim of it.
Several authors have argued that the relationship between poverty and perpetration of sexual
violence is mediated through forms of crisis of masculine identity.
Poor women and girls may have more risk of rape in the course of their daily tasks than those
who are better off, for example when they walk home on their own from workplace late at night,
or work in the fields or collect firewood alone. Children of poor women may have less parental
supervision when not in school, since their mothers may be at work and unable to afford child
care. The children themselves may, in fact, be working and thus vulnerable to sexual
exploitation.

Q.12 Explain the Sutherland’s differential association theory.

Ans. Sutherland propounded the Differential Association Theory in 1939. He says, two
explanations have mainly been forwarded for criminal behaviour: situational and genetic or
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historical. The former explains crime on the basis of situation that persists at the time of crime,
and the latter ex-plains crime on the basis of a criminal’s life experiences. He himself used the
second approach in developing the theory of criminal behaviour. Suppose a hungry boy comes
across a shop and finds the shopkeeper absent.
He steals a loaf of bread. In this case, it is not be-cause the shopkeeper was absent and he was
hungry that the boy committed the theft but it is because he had learnt earlier that one can satisfy
his hunger by stealing things. Thus, it is not the situation which motivates a person to commit
theft; it is his learnt attitudes and beliefs.
Sutherland’s main thesis (1969:77-79) is that individuals encounter many inharmonious and
inconsistent social influences in their life-time and many individuals become involved in
contacts with carriers of criminalistics norms, and as a consequence become criminals. He called
this process ‘differential association’.
The theory states that criminal behaviour is learnt in a process of communication with other
persons, principally in small, intimate groups. This learning includes the techniques of
committing the crime. The spe-cific direction of motives, drives, rationalizations and attitudes is
learned from definitions of the legal codes as favourable or un-favourable. A per-son becomes
criminal or delinquent because of an excess of definitions favourable to violation of law over
definitions un-favourable to violation of law. This is the principle of differential association.
Differential asso-ciations may vary in frequency, duration, priority and intensity.
The process of learning criminal behaviour by associations with criminal and anti-criminal
patterns involves all of the mechanisms that are involved in any other learning. While criminal
behaviour is an expression of general needs and values, it is not explained by those needs and
values since non-criminal behaviour is an expression of the same needs and values.
Sutherland’s theory was supported by James Short Junior on the basis of his study of 176
school children (126 boys and 50 girls) in 1955 (Giallombardo, 1960:85-91). Short measured
the degree of presumed exposure to crime and delinquency in the community, the frequency,
du-ration, priority and intensity of interaction with delinquent peers and knowledge of and
association with adult criminals.

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But Sutherland’s theory has been attacked by many scholars like Sheldon Glueck, Mabel Elliott,
Caldwell, Donald Cressey, Tappan, George Void, Herbert Bloch, Jeffery Clarence, Daniel
Glaser and others. The major criticism is that it is difficult to empirically test the principles and
measure ‘associations’ and the priority, intensity, duration, and fre-quency of relationships.
According to Tappan, Sutherland has ignored the role of personality or role of biological and
psychological factors in crime. Void (1958:194) has maintained that he has ignored the role of
secondary contact and formal groups in criminality. Clarence Ray Jeffery holds that
Sutherland’s theory fails to explain the origin of criminality, since criminality has to exist before
it can be learnt from someone else. Johnson (1978:158). Elliot (1952:402) says, Sutherland’s
theory explains the systematic crimes but not the situational ones.
According to Cressey, Sutherland does not fully explore the implications of the learning process
itself as it affects different individuals. Bloch (1962:158) is of the opinion that it is virtually
impossible to measure as-sociations in comparative quantitative terms.
Glueck (1951:309) maintains that an individual does not learn every behaviour from others;
many acts are learnt naturally. Caldwell (1956) says that individuals be-come what ‘hey are
largely because of the contacts they have but both the constitutional or inborn hereditary
structure and the intensity of the environmental stimuli must be appraised as well.
Daniel Glaser (1956:194) modified Sutherland’s theory a little to explain from whom an
individual learns crime. He called this new theory as ‘Differential Identification Theory’ and said
that a person pursues criminal behaviour to the extent that he identifies himself with real or
imaginary persons from whose perspective, his criminal behaviour seems acceptable.
He further says that one of the persistent problems in the Theory of Differential Association is
the obvious fact that not every-one in contact with criminality adopts or follows the criminal
pattern. What, therefore, is the difference in the nature or quality of the associa-tion that in one
case leads to acceptance of the attitudes and behaviour of a group of one individual but in the
case of another individual leads only to acquaintance with but not an acceptance of the behaviour
charac-teristics of the group.

Q.13 Distinguish between the following:

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(a) Crime and tort.

(b) Crime prevention and crime treatment.
(c) Indeterminate sentence and suspended sentence.
Ans. (a) “Difference between Tort & Crime”
Tort and crime resemble each other in this that both are violations of rights in rem and in both
the rights and duties are fixed by law irrespective of the consent of the parties. Followings are the
distinctions.
1. Definitions:
• Crime:
“Crime is an act, commission or omission forbidden and punishable by law because it is harmful
to the society.”
“Crime is an act of aggression against not only an individual but also against society as a
whole. It is offence against the state and the state is responsible for the punishment of the
offender, for maintenance of peace and tranquility. Object for punishment is protection of public
from crimes.”“Crimes are acts which are prohibited by state and sanctions or punishments are
behind them.”
• Tort:
In the words of Salmond tort can be defines as:
“A civil wrong, independent of contract, for which the remedy is an action for damages”
In the view of Ratanlal it can also be defined as:
“It is an act or omission which prejudicially affects a person in some legal private right”
There is an exception in which we must note that infliction of all civil injury is not‘tort’. A civil
injury in which an action will not lie is not a tort.
Tort can also be defined as:
“Tortious liability arising breach of duty primarily fixed by law towards the people generally
and for which remedy is an action for un-liquidated damages.”
2. Characteristics:
• Crime:

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• Harm should have been caused, mere intention is not enough.

• Harm must have been legally forbidden.
• There must be conduct, action which begins harmful.
• Mens Rea (Latin word): guilty, intention. It must be present.
• Mens Rea should be coupled with conduct (Actus Reus)
• Harm should inflict (influence) the ultimate end.
• It must carry a legal punishment.
• Tort:
• There must be a civil wrong
• There must be a legal infringement of right.
• There must be a remedy.
3. Further Differences:

As to nature of wrong: A tort is a private wrong. It is an infringement of private rights

belonging to an individual, whereas a crime is an invasion of public rights and duties affectng the
whole society.
As to remedy available: In tort the wrong-doer has to compensate the injured party, in
crime, he is punished by the state.
As to procedure: In tort the action is brought by the injured party himself. In crime, the
proceedings are taken and conducted in the name of the state.

Crime Tort
1. Crime is a wrong against the whole 1. Tort is a wrong only against an
society. individual.
2. Crime proceedings are held in 2. Tort proceedings are held in civil
criminal courts. courts.
3. In crime remedy is in the form of 3. In tort remedy is in the form of
punishment. damages.
4. Rule of criminal procedure is applied. 4. Rule of civil procedure is applied.

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5. In Crime state prosecutes regardless of 5. In tort, it is not so.

the wishes of a person who has been
wronged. 6. In tort emphasis is lay down on
6. Different crimes involve Mens Rea compensation.
7. In crime compromising is only 7. In tort, individual can
possible in compoundable offences. compromise.

4. Conclusion:
To conclude, we can say that violation of any right is condemned in law in every case, whether it
is civil or criminal. So, law protects the legal rights of every citizens of a state.

(b) Crime prevention and crime treatment.

Ans.
• Generally speaking, crime prevention is about vigilance, human services, education, and
social engineering.
• Crime control is usually seen to be about punishment, force, arrests and prosecutions.
• The former is cheaper and, on the whole, more effective. The latter is more expensive and
resource-intensive, and overall confers less benefit.
• Crime prevention is the act of circumventing illegal acts before they happen. Crime
control is to handle the commission of crime in a manner designed to reduce the
occurrences of criminal acts.
• Crime prevention would be nice but it's not feasible. Its name says it all, an effort to
prevent crime from ever occurring. Crime control simply acknowledges that all crime
cannot be stopped so the goal is to minimize it as much as possible. It is really semantics
because no professional in this field would claim to be able to stop all crime be for it
occurred.
For Example
Crime prevention -

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• a motion detecting light

• a sign saying CCTV IS RECORDING
• fake CCTV camera
Crime control -
• chucking tear gas at protesters.
• making a human shield of police and moving on / breaking up crowds.

(d) Indeterminate sentence and suspended sentence.

Ans. Indeterminate sentence, in law, term of imprisonment with no definite duration within
a prescribed maximum. Eligibility for parole is determined by the parole authority. In this
respect, an indeterminate sentence differs from a definite one in that statutes prescribing the
latter usually provide for parole eligibility after a specified fraction of the full term—in most
countries, from one-half to two-thirds of the original sentence.
Indeterminate sentences were pioneered in the reformatory movement of the last quarter of the
19th century. Release was determined by progress made under the program of training rather
than by a judicially established sentence. In current practice, release on parole from an
indeterminate sentence is initiated by the recommendation of prison staff personnel, field parole
officers, and the parole authorities. Evaluation of the offender’s conduct in prison, the nature of
his offense, his life history, his prospects in the community, his general personality, and his
attitude determine his suitability for parole.
A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a
sentence after they have been found guilty, in order to allow the defendant to perform a period
of probation. If the defendant does not break the law during that period, and fulfills the particular
conditions of the probation, the judge usually dismisses the sentence.
When a sentence is suspended entirely, the defendant does not go to jail right away. ... During
that time, the defendant must comply with certain conditions.
Violation of those conditions may lead to a charged Violation of Probation or Coditional
Discharge for which the suspended portion is the potential punishment.

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Q.14 Discuss the role of police and courts of criminal justice in the
prevention of crime in the society.
Or
Q.14. Police plays a vital role in bringing the offenders to justice. In this regard
describe the major functions. Which the police is lawfully required to perform.

Ans. Criminal justice is the delivery of justice to those who have committed crimes.
The criminal justice system is a series of government agencies and institutions whose goals are
to identify and catch unlawful individuals to inflict a form of punishment on them. Other goals
include the rehabilitation of offenders, preventing other crimes, and moral support for victims.
The primary institutions of the criminal justice system are the police, prosecution and defense
lawyers, the courts and prisons.
The role of Courts in the prevention of crime in the society
The courts serve as the venue where disputes are then settled and justice is administered. With
regard to criminal justice, there are a number of critical people in any court setting. These critical
people are referred to as the courtroom work group and include both professional and
non-professional individuals. These include the judge, prosecutor, and the defense attorney. The
judge, or magistrate, is a person, elected or appointed, who is knowledgeable in the law, and
whose function is to objectively administer the legal proceedings and offer a final decision to
dispose of a case.
In the U.S. and in a growing number of nations, guilt or innocence (although in the U.S. a jury
can never find a defendant "innocent" but rather "not guilty") is decided through the adversarial
system. In this system, two parties will both offer their version of events and argue their case
before the court (sometimes before a judge or panel of judges, sometimes before a jury). The
case should be decided in favor of the party who offers the most sound and compelling
arguments based on the law as applied to the facts of the case.
The prosecutor, or district attorney, is a lawyer who brings charges against a person, persons or
corporate entity. It is the prosecutor's duty to explain to the court what crime was committed and
to detail what evidence has been found which incriminates the accused. The prosecutor should
not be confused with a plaintiff or plaintiff's counsel. Although both serve the function of

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bringing a complaint before the court, the prosecutor is a servant of the state who makes
accusations on behalf of the state in criminal proceedings, while the plaintiff is the complaining
party in civil proceedings.
A defense attorney counsels the accused on the legal process, likely outcomes for the accused
and suggests strategies. The accused, not the lawyer, has the right to make final decisions
regarding a number of fundamental points, including whether to testify, and to accept a plea offer
or demand a jury trial in appropriate cases. It is the defense attorney's duty to represent the
interests of the client, raise procedural and evidentiary issues, and hold the prosecution to its
burden of proving guilt beyond a reasonable doubt. Defense counsel may challenge evidence
presented by the prosecution or present exculpatory evidence and argue on behalf of their client.
At trial, the defense attorney may attempt to offer a rebuttal to the prosecutor's accusations.
In the U.S., an accused person is entitled to a government-paid defense attorney if he or she is in
jeopardy of losing his or her life and/or liberty. Those who cannot afford a private attorney may
be provided one by the state. Historically, however, the right to a defense attorney has not always
been universal. For example, in Tudor England criminals accused of treason were not permitted
to offer arguments in their defense. In many jurisdictions, there is no right to an appointed
attorney, if the accused is not in jeopardy of losing his or her liberty.
The final determination of guilt or innocence is typically made by a third party, who is supposed
to be disinterested. This function may be performed by a judge, a panel of judges, or a jury panel
composed of unbiased citizens. This process varies depending on the laws of the specific
jurisdiction. In some places the panel (be it judges or a jury) is required to issue a unanimous
decision, while in others only a majority vote is required. In America, this process depends on
the state, level of court, and even agreements between the prosecuting and defending parties.
Some nations do not use juries at all, or rely on theological or military authorities to issue
verdicts.
Some cases can be disposed of without the need for a trial. In fact, the vast majority are. If the
accused confesses his or her guilt, a shorter process may be employed and a judgment may be
rendered more quickly. Some nations, such as America, allow plea bargaining in which the
accused pleads guilty, nolo contendere or not guilty, and may accept a diversion program or

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reduced punishment, where the prosecution's case is weak or in exchange for the cooperation of
the accused against other people.
The entire trial process, whatever the country, is fraught with problems and subject to
criticism. Bias and discrimination form an ever-present threat to an objective decision.
Any prejudice on the part of the lawyers, the judge, or jury members threatens to destroy the
court's credibility. Some people argue that the often Byzantine rules governing courtroom
conduct and processes restrict a layman's ability to participate, essentially reducing the legal
process to a battle between the lawyers. In this case, the criticism is that the decision is based less
on sound justice and more on the lawyer's eloquence and charisma. This is a particular problem
when the lawyer performs in a substandard manner. The jury process is another area of frequent
criticism, as there are few mechanisms to guard against poor judgment or incompetence on the
part of the layman jurors. Judges themselves are very subject to bias subject to things as ordinary
as the length of time since their last break. Manipulations of the court system by defense and
prosecution attorneys, law enforcement as well as the defendants have occurred and there have
been cases where justice was denied.
Law enforcement in India is performed by numerous law enforcement agencies. Like
many federal nations, the nature of the Constitution of India mandates law and order as a
responsibility of the state. Therefore the bulk of the policing lies with the respective states and
territories of India.
The role of Police in the prevention of crime in the society
The most unpleasant task in the Criminal Justice System belongs to the police. The Police is not
only entry point in the Criminal Justice System, but also lies at the cutting edge of the entire
system. The Police is the crucial and visible link between the people and the Government, as the
Governmental authority is translated into action by the police and resistance whatsoever is also
faced by no one else, other than police. No doubt, all the sub-systems of the Criminal Justice
System viz. police, prosecutors and judiciary are interconnected with each other and what is done
in one sub-system has a direct bearing upon the other subsystem. Police is an important
component of the total system. It is sociologically admitted that when people occupy social
position rather than by their own individual characteristic roles which are the bundles of socially

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defined attributes and expectations associated with the social positions. Police occupies a very
strategic position in respect to the social control, probably only next to the family and other
personal groups in importance.
The modern police force in India was established by the Britishers. The law relating to the sphere
of police work in the country remained more or less unaltered even after independence. The
Indian Police Act, 1861 enacted in British India, Provided for a uniform police in the country.
The functions and powers of the police are provided under the Act. Further, the Criminal
Procedure Code amended from time to time provides vast powers to the police, which among
others include power of investigation of the offences, arrest, search and seizure.
The Police being the entry point in the Criminal Justice System and is expected to perform the all
embracing function of investigation of crime that involves gathering material evidence from the
scene of crime interrogation of witness, recording of confessions and statements before
Magistrate arrest search and seizure seeking remand and release on bail etc, in addition to
maintenance of law and order, therefore, the entire burnt is mainly on the police personnel. The
basis statue, namely the Indian Police Act has continued to regulate the functioning of the Police.
The Code of Criminal Procedure, 1973 has maintained the basic framework of old provides
ones and provides a procedural system. The officer-in-charge of the police Station, who
continues to be the kingpin of the local administration, enjoys wide powers under the criminal
procedure law which often conflict with the democratic principles. The powers in question
pertain to house search, arrest on suspicious, watch after conviction and other issues regarding
maintenance of law and order.
Though Police is for the protection of the society but in reality the society fears the Police and
harbors hostility against the Police. In fact the societal perception of the Police is based on day to
day abuses and excesses that the Police organization indulge. In a way this is the consequence of
politicization and lack of professionalism in the Police Force. The Malimath Committee on
Criminal Justice Reform (2003) has reposed strong faith on the police that according to the
MCR is best shield against growing criminalization in the society, including terrorism.
The police is the crucial and visible link between the people and the Government, as Government
authority is translated into action by the police and resistance whatsoever is also faced by none

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else, other than Police. They are important, because they keep our complex society together.
They keep the citizen, working and prospering within the framework. It is an established fact that
no society can exit or function without the support of an organized police force, but the police
force howsoever, well organized and effective. It may be, cannot check completely the criminals
and increasing crime rate. It is a well-known fact the police in almost every part of the world
have failed to check completely the criminal activities and the onward march of the crime and
delinquency.
The police by virtue of their position and functioning is most hated institution of any
Government and every type of the Government. The police in India is not only an object of
dislike but hatred as well. In England in the words of Holcomb, no one loves a police man and in
U.S.A. cops are known as pigs by many, Moreover, in most of the countries, there are usually
common allegations of highhandedness, inhuman methods of investigation, torture, corruption
and inefficiency against the police. There is common belief among the masses that police work
under the undue influence of the politicians. No doubt, all the sub-systems of teh Criminal
Justice System viz. police, prosecution, courts and prisons are interconnected with each other and
what is done in one sub-system has a direct bearing upon the other sub-systems. There must be a
proper co-ordination between all the segments of the Criminal Justice System. It has been found
there is hardly any proper and effective co-ordination between the different segments of the
criminal justice system, which usually goes in favour of the offender. A proper and effective
co-ordination between the different segments of the criminal justice system is essential for
smooth functioning of the system.
Conclusion
The concept of Criminal Justice System is related with the concept of crime and norms of the
society to control the criminal activities. It is as old as the manking in itself. The methods to
control the crime have been devised by the society from time to time as per the perception of the
crime.
• The agenda for the Criminal Justice System is reflected in the socio-economic and moral
values of the society, which in the due course of time, takes the shape of legal norms to
become the binding force for the society.

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• The methods to control the crime have always depended on the perception of the crime in
the society, social sanctions, vigor and force of the State.
• The Indian Criminal Justice System has traveled through Hindu period, Muslim period
and finally the present shape to the system has been given in the British period.
• Justice during the Hindu period and Muslim period was swift and within the reach of
common people.
• In the post-independence period law has have been amended from time to time to make
the criminal justice apparatus swift and more effective.
• The Criminal Justice System including the police apparatus in a way is the reflection of
the existing social set-up. The legal norms are got executed through the apparatus of the
criminal system, which in any civilized society has be to fair, firm, impartial and
effective.

Q.15. What do you understand by Organized Crimes? Discuss its various kinds.
Ans. 1. A group is formed by the criminals. They render mutual cooperation with each other.
Proper protection is given by them to its member in trouble.
2. Criminals divide themselves in various parties. The number of such parties depends upon the
nature of crime to be committed.
3. The members of the group of criminals actively participate in the commission of crimes. They
generally run brothels, liquor shops and gambling houses.
4. They always keep in their amicable relations with the police and administrative machinery. It
helps in their protection.
Thus organized crime is a group of individuals, either local, national or international, that engage
in criminal enterprises for profit. The rationale behind why they are formed varies because they
may be politically motivated, financially motivated or an organized criminal 'gang.' We will look
at the makeup of these organizations in this lesson.
Characteristics of the Organized Crimes
1. Numbers of members.
2. Division of work
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3. Planned Manner
4. Unchallenged Leadership
5. Secrecy
Main Organized Crimes
1. Smuggling
2. Theft
3. Prostitution
4. Gambling
5. Fraud
6. Dacoity
Types of Organized Crimes
• Gang Criminality.
• Racketeering.
• Syndicated Crime.
Gang Criminality
• The Gangs are operating on a large scale.
• Hard criminals are the member of this.
• They don’t hesitate to kill or use of violence.
• They use modern arms.
• These criminals are disciplined but dangerous.
Racketeering
• It includes dishonest way of getting money.
• They live on other men’s money.
• Racketeers don’t like gang criminals.
• They give regular fixed money to their bosses.
• They take protection money from the businessmen.
Syndicated Crime
• The syndicates create their own business procedure.

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• They avoid using violence.

• Society knows these syndicate members as respectable citizens and high status persons.
• They operate in big metropolitan areas.
• The leaders gather at fixed place to discuss problems.
Remedies to Prevent Organized Crimes-
1. Penal Laws be suitably amended and the provisions be made for severe punishment for the
serious type of organized crimes like dacoity.
2. All persons guilty of committing loot, dacoity and murder must be given the punishment of
death instead of life imprisonment.
3. Police and administrative authorities be given wide powers to face every situation in this
regard to eradicate this evil.
4. The places wherefrom dacoits belong be made the subject of study to find out the economic
and other condition of such places. The proper rehabilitation and other programmes then be
made for the economic growth of people of such place.
5. A healthy public opinion be formed so that the public may assist the police in prevention of
this crime.

Q.16 What do you understand by open Prison? Discuss the specialties of open
prison. How the open prison system has helped to rehabilitate the criminals?
Ans. “Society must strongly condemn crime through punishment, but brutal
deterrence is a fiendish folly and kind of a crime by punishment, It frightens
never refines; it wounds never heals.”
(JusticeKrishna Iyer)
In December 2015, United Nations adopted the Standard Minimum Rules for treatment of
Prisoners (Nelson Mandela Rules) which enlisted the rights of the prisoners such as Right to life
including the right to contact the outside world, right to proper sleep and clothing, right to
security, right to proper healthcare etc.
The concept of Open Prisons

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The paradigm of Reformative Punishment does not support the traditional inhuman jails with
bars but is more liberal and supports the concept of open prisons, which is a trust-based prison
with minimum security.
The concept of Open prisons was first developed in U.K in the 1930s and was based on the idea
of ‘carrots’ rather than ‘sticks’.
This open prison helps the prisoner to gradually connect with the world before the release.
In India currently, there are 69 Open Jails:
• Rajasthan (29), and
• Maharashtra (13) having the highest number.
As per the data of 2015:
• Open prisons have 3786 prisoners out of which 2227 prisoners are in the Maharashtra and
Rajasthan prisons.
• Almost 60% of the total prisoners in the open prisons are concentrated in two states.
• Many states have an open prison but do not accommodate any prisoners.
• The reasons for this overcrowding and at the same time under-utilization could be
because the Jails are a part of the state list and hence a collaborative approach cannot be
adopted by the states.
• Open Jails are prisons without boundaries and cells.
In open jails the prisoners are given the liberty:
• To live with their families
• Allowed to find employment
• Prisoners can move out of the prison for their work and are supposed to come back to the
prison campus after their working hours.
The open jails in India involve the prisoners in activities like:
• Farming,
• Animal husbandry etc.
• Convicts can be sent to Open jails for two purposes

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• For the purpose to slowly cut down his/her level of socialization, instead of directly
confining the convict in a closed prison, as this can negatively affect the mental health of
the prisoner.
Secondly, in order to help the prisoner to slowly re-socialize with the world. While serving in the
closed prison, the prisoner is bound to lose touch with the outside world and hence wouldn’t be
able to rehabilitate himself after the release.
However, in India, only the second scenario is accepted. Rajasthan, Maharashtra and Himachal
Pradesh have the maximum number of active open prisons in India. Some of the most popular
Open Prisons are located in:
• Yerwada
• Akola
• Kolhapur
• Paithan
• Sangamner
• Bikaner etc
Prisoners are transferred from closed to traditional prison. Only selected prisoners are transferred
from closed or traditional prison to an open prison. These prisoners in Maharashtra generally do
agricultural work to earn their living and prisoners in Rajasthan also work at factories and
industries.
The money earned by these prisoners is spent by them for their families and no amount except a
small administration charge is to be paid to the Jail.
Every morning at 6 a.m. a roll call takes place after which the prisoners are allowed to move out
and another roll call is scheduled at 7 p.m., till then the prisoners are expected to return to the
prison.
These prisons exist for almost 8 decades now, however, no complaints of any prisoner escaping
have come forward.
The condition open prisons in India
The conditions of prisons in India have been severely criticized. There have many cases of-
• Custodial violence

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• Custodial deaths
• Suicides, and
• Overcrowding etc. in Indian jails.
As per the NCRB’s 2015 data:
1. 77 deaths were caused due to custodial suicide, and
2. 11 deaths due to custodial murders which shows the poor administration and structure of
Indian Prison system.
3. The Supreme Court has time and again given directions on Prison Reforms, In many
cases, the Supreme Court has actively endorsed the Open Jail system.
4. The basis on which the selection of these prisoners is done.
Open Prison rules in Maharashtra
The selection is governed by Maharashtra Open Prison Rules, 1971. As per the act a Selection
Committee consisting of:
• Inspector General
• Deputy Inspector general
• Superintendent of the Prison, and
• Superintendent of the Open Prison is formed
• Selection is done on the basis of:
• Good behavior
• Mental and physical fitness
• The period of imprisonment etc.

However, there is a long list of the ineligibility criteria, of which some are completely arbitrary
for e.g.
• Women prisoners
• Convicts of narcotics
• Prisoners with any history of mental illness
• Professional murderers
• Convicts of crimes like:

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• Collection of arms
• Sedition
• Crimes against the army etc.
This provision eliminates the possibility of rehabilitation of a large number of convicts, who are
actually in need of it and offers rehabilitation to those are who are not in dire need of it.
However, the committee can consider certain special cases even if they’re ineligible.
Open Prison Rules in Rajasthan
As per the Rajasthan Prisoners Open-Air Camp rules, 1972 the Open Jails aim at encouraging
and rewarding good behavior and give prisoners an opportunity to social adjustment and
economic independence.
In Rajasthan the Jail Superintendent sends the list of potential prisoners to the Open Air Camp
Advisory Committee and the decision is taken by the committee.
The eligibility criteria are similar to that of Maharashtra however, the convict is expected to
spend 1/3rd of the sentence in a closed prison.
Even in Rajasthan, arbitrary provisions for ineligibility exist such as:
• Convicts not having an abode in Rajasthan or
• Have a place of Residence outside Rajasthan
• Prisoners below the age of 25 or above the age of 60
• Civil prisoners
• Unmarried prisoners
• Prisoners with any history of mental illness
• Professional murderers
• Convicts of crimes like a collection of arms, sedition, crimes against the army etc.
Although women are given access to open jails the provisions of Rajasthan are stricter than those
of Maharashtra. Such provisions don’t provide equality to the convicts and thus are violative of
the rights of the prisoners.
The committee does not have the power to consider special cases, like Maharashtra.

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Rajasthan also provides for a unique rehabilitation system, where every open prison has a
panchayat consisting of 5 to 7 members, who are selected by the prisoners, amongst the
prisoners.
This Panchayat looks after the daily management of the prison. This helps in improving
communication and leadership in the prisoners.
Open Prison Rules in Himachal Pradesh
Himachal has 7 open prisons. The working is governed in a similar way as Rajasthan, however,
the rape convicts, and convicts of other heinous crimes are also ineligible.
Criticisms of the Open Jails in India
Unnecessary and arbitrary provisions for ineligibility, which filter out many deserving convicts -
• Under-utilization of the Open Prisons. These prisons have a capacity to accommodate
25776 prisoners however, only 3786 prisoners are currently in these prisons (as of 2015).
This shows that despite the heavy overcrowding in the closed prisons, open prisons are
vacant.
• The prisoners in most states are selected by a committee who has no accountability over
them, as they are not expected to provide reasons for their selections. This leads to
partiality and corruption.
• No measures are taken for the convicts beginning their sentence. At least, semi-open
prisons should be made open for the fresh convicts.
• No provision of Open Jails to under trial prisoners.
• Inadequate Open Prisons in every state. Some states are concentrated with Open Prisons
while some have just one and no Union Territory in India has an Open Prison. Due to the
state list subject, this inequality exists among different states.
• Open Prisons are the only rehabilitative prisons in India. Which also favor only a small
number of convicts? There is a need for more rehabilitative provisions for other convicts,
in order to reduce the amounts of custodial deaths.
• The rules and laws governing the selection and administration are extremely old and thus
unfit for the present situations.
Reforms needed in the status quo
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• The number of Open Prisons and better utilization of the currently existing ones through
amendments to the rules and relaxation of the strict eligibility criteria.
• Efforts should be taken to move the subject of prisons to the union list. As this will bring
in uniform reforms and every prisoner will get similar rights.
• In order to bring accountability in the selection procedure, the state committee should be
compelled to provide reasons to the Chief Minister of the concerned state for the
selection made. These documents should also be made available within the ambit of RTI
so that common people can also get access to it.
• Semi-open Jail in order to provide rehabilitation to mentally disturbed prisoners,
semi-open jails should be promoted. They do not provide complete liberty, but there are
no prison cells and prisoners are provided with employment opportunities within the Jail
campus. One of the finest semi-open jail in India is the Tihar Semi-Open Jail in Delhi.
• Supreme Court or the concerned High courts should also be given the jurisdiction to
allow certain prisoners to directly go to the Open Prison.
• Every prisoner whether in open or closed prison should be made aware of his/her rights
and should be informed about the process of selection to open prisons. This will not only
give the required information to the prisoners but will also reinforce good behavior
among these prisoners.
Conclusion
The concept of open prison has existed in India since almost 7/8 decades; however, many states
still do not have enough open prisons. With the current scenario of overcrowding of Jails, it is
extremely important to build and utilize the open prisons. Open prisons are excellent in
providing rehabilitative justice, as it helps the convicts to re-socialize with the world before
they’ve completed their sentence. Although the existing open prisons are well- managed and has
a good record in the past there is still room for improvement in terms of laws and rules. Active
measures should be taken to amend these rules, to provide access to justice to all the prisoners.
This system if properly utilized will also help in reducing the custodial deaths.

Short Question-Answer
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Q.1 Write a note on professional rehabilitation.

Ans. Rehabilitation
Rehabilitation is the process of re-educating and retraining those who commit crime. It
generally involves psychological approaches which target the cognitive distortions associated
with specific kinds of crime committed by particular offenders - but may also involve more
general education such as literacy skills and work training. The goal is to reintegrate offenders
back into society.
Rehabilitation is a central goal of the correctional system. This goal rests on the assumption that
individuals can be treated and can return to a crime free lifestyle. Rehabilitation was a central
feature of corrections in the first half of the twentieth century. The favorability of rehabilitation
programming declined in the 1970s and 1980s but has regained favor in recent years.
Rehabilitation includes a broad array of programs including mental health, substance abuse, and
educational services. In addition, specialty programs have been developed for women, sex
offenders, and parolees. Rehabilitation has also been introduced in the court system. The
following literature summarizes the prominent works in this area and provides sources of reliable
data on a range of treatment and rehabilitation programs.
As noted, the popularity of rehabilitative programs has varied over time. Although rehabilitation
has always been a part of correctional programming, the “nothing works” conclusions
of Martinson 1974 brought down the rehabilitative ideal that had gained prominence in the
preceding decades. Cullen and Gendreau 2000 present an excellent summary of the historical
trends in treatment and describe the principle elements of modern treatment services. More
recently, researchers have focused instead on what works for which offenders and under what
circumstances. Mackenzie provides an excellent description of model treatment and
rehabilitation programs for juveniles and adults. Gaes, et al. 1999 presents a similar summary of
best practices in correctional treatment, and describes some of the challenges in conducting
evaluation studies of treatment programming. A number of meta-analyses have also been
conducted that provide a statistical summary of the efficacy of treatment programs. Andrews
1990 evaluates the components of effective treatment with adult offenders. Lipsey 1992 presents
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a similar analysis with juvenile offenders; both researchers highlight the efficacy of cognitive
programming. Students interested in a general overview of treatment modalities for juvenile
offenders should look to Howell 2008. Most recently, researchers on behalf of the National
Research Council detail the extant literature on institutional and community treatment for
offenders (Committee on Community Supervision and Desistance from Crime 2008). Much of
the program evaluation literature is conducted on the local level. The National Institute of
Corrections provides a superb resource for local research studies.

Q.2 What is the role of prisons in modern penology?

Ans. Prison is an important and integral part of the criminal justice system in every country.
Used appropriately it plays a crucial role in upholding the rule of law by helping to ensuring that
alleged offenders are brought to justice and by providing a sanction for serious wrongdoing. At
best prisons should be able to offer a humane experience with opportunities for prisoners to
obtain assistance and help with rehabilitation.
The modem progressive view, however, regards crime as a social disease and favours treatment
of offenders through non-penal methods such as probation, parole, open jail etc. Whatever be the
reaction of society to crime, the lodging of criminals in prison gives rise to several problems of
correction, rehabilitation, and reformation which constitute vital aspects of prison administration.
Subsequently, with the march of time and advancement of knowledge and civilization, the
conditions of prisons also improved considerably. Since the present day penology centers round
imprisonment as a measure of rehabilitation of offenders, the prisons are no longer mere
detention houses for the offenders but they seek to reform inmates for their future life. The
modern techniques of punishment lay greater emphasis on reformation, correction and
rehabilitation of criminals.
The modern prison system in India is essentially based on the British prison model which in
itself is an outcome of prison developments in America during the late eighteenth century. It will
therefore, be proper to trace the evolution of prison system in America, Britain, Russia etc.
before dealing with the prison developments in India.

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Q.3. What is the effect of Mental Disorder or disability of a person to commit

crime and what remedial measures can be adopted to prevent the same?
Ans. Effect of Mental Disorder or Disability of a Person on Crime - Mental disorder is
generally found either in the form of ‘feeble-minded’ or ‘insanity’. Law provide protection to
such persons because whatever they do, it is done by them without any motive and without any
knowledge of the nature and consequences of their act. One of the reason of granting exemption
from criminal liability to a person of unsound mind is that it is said about them that he had
already been punished by God by his own madness.
According to famous criminologist ‘Farris and Durham’, their views are as follows-
(i) those social background which give birth to criminal behavior do not have effect on the
mental patients.
(ii) Some mental patients or mentally disordered persons do not cause harm to others.
(iii) Some persons take plea of insanity after committing an offence.
(iv) Such criminal and non-criminal persons can be found out by adopting some principles and
procedures.
Various measures to prevent the commission of crime by such persons -
i) Insane person or the person suffering from any mental disease or disorder deserve mercy and
sympathy from society. As such the duty of each member of the society is to do nothing which
causes irritation or provocation to such type of persons.
ii) All aspects including the actual state of mind of the accused, his previous history, part
character and family background should be examined thoroughly and properly before taking any
decision about their criminal liability.
iii) Such person found committing a criminal act should not be punished by law like other
criminals.
iv) Adequate and proper arrangement should be made by institutions as well as by government
for the proper treatment of those patients of mental diseases who can be cured.

Very Short Question-Answer

Q.1. What is Political Graft.

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Ans. Graft, as understood in American English, is a form of political corruption, being the
unscrupulous use of a politician's authority for personal gain. Similarly, political graft occurs
when funds intended for public projects are intentionally misdirected in order to maximize the
benefits to private interests.

Q.2. What do you understand by ‘Victimology’?

Ans. Victimology is the scientific study of victimization, including the relationships between
victims and offenders, victims and the criminal justice system, and victims and other social
groups and institutions, such as the media, businesses, and social movements. Victimology
studies victims of crimes and other forms of human rights violations that are not necessarily
crime.
It is hoped that through an in-depth examination of victims, law enforcement officials can know
the perpetrator a little better. It is believed that the victim's background may provide important
information about past activities or lifestyle, possibly leading directly to the generation of a
suspect.
Q.3. Explain prevention of crime.
Ans. Crime prevention is the attempt to reduce and deter crime and criminals. It is applied
specifically to efforts made by governments to reduce crime, enforce the law, and maintain
criminal justice.
Q.4. Define Interpol.
Ans. Interpol is an international police agency that helps other law-enforcement agencies
track criminals who operate across national borders. ... The full name of Interpol is the
International Criminal Police Organization, or the ICPO.
Q.5. What is Furlough?
Ans. In Layman’s term furlough refers to granting of leave of absence. In legal term it refers to
granting leave of absence for a specified time period to a convict from the prison. The board
concept of furlough remains the same across all the states and only the procedure to be carried
out varies from state to state.
Q.6. What is the distinction between prohibition and parole?
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Ans. Distinction between prohibition and parole

Probation and parole can be differentiated on the following grounds-
1. Historical Evolution The system of probation owes its origin to John
Augustus of Boston (U.S.A.) around 1841 whereas the system of parole came into
existence much later somewhere around 1900.
2. Punitive Reaction In probation, there is no punitive reaction to the crime. It is
purely a treatment of offender. But in parole, the punitive reaction to the crime is
present. Few part of sentence is served i.e. punitive.
3. Nature Probation is judicial in nature whereas parole is quasi-judicial in nature
and civilized or respected members of society constitute Parole Board.
4. Sentence In probation, no such formal penalty is imposed, if imposed is not
executed. But parole is granted after serving a part of sentence in prison.
5. Substitute for Punishment Probation is granted as a substitute of the
punishment. But parole is granted after completing a part of sentence.
6. Punishment and Treatment Probation is only a treatment in which the
sentence is suspended. But parole implies both punishment and treatment.
7. Stage Probation is probably the first stage of correctional scheme whereas parole
is the last stage of correctional scheme.
8. Stigma or Disqualification No stigma in case of probation because use no
sentence whereas a prisoner released on parole suffers stigmatization as a
convicted criminal in the society.
Q. 7. Define Female Criminality.
Ans. Theories on Female Criminality
Lombroso (1903) maintained that his researches produced fewer indications of physical stigmata
or biological anomalies among women, supporting his belief that women are organically
conservative.
This conservation tendency of women accounts not only for the lesser involvement of women in
criminality but also for the cause of crime (atavistic features) among females.
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Freud’s (see, Klein Dorie, 1973) physiological explanation holds that law breaking by
females represents a perversion of or rebellion against the biologically natural female role, or is
evidence of ‘masculinity complex.’
He maintained that all females experience some degree of jealousy of males but ‘normal’ women
manage to accept and internalize societal definitions of femininity, centered about a
single-minded interest in motherhood.
Kingsley Davis (1937) presented a functionalist interpretation of one specific type of crime
by women, namely, prostitution. He argued that commercial prostitution arises as a black-market
in sex.
It arises in circumstances where demands for sexual novelty cannot be supplied within the
framework of marriage and/or where some males are cut off from access to sex partners because
they are unmarried, ugly or deformed.
Otto Pollak (1950) claimed that women engage in hidden crimes like abortions, murder by
poisoning, offences against children, etc. because of their greater skill at deceit and cunning
behaviour acquired through sexual socialization.
Besides the surreptitious and cunning nature of women acquired through differential
socialization process, Pollak also suggested that biological factors including lesser physical
strength, as well as psychological concomitants of menstruation, pregnancy, etc. enter into the
etiology of female crime.
The shared proposition of all these four scholars is that female crime is the result of
physiological or psychological characteristics of individuals.
They have not given any importance to socio-cultural factors but have viewed the biological
characteristics as pathological distortions or departures from the normal inherent nature of
women.
Obviously, the assumptions in all these explanations about biological and psychological traits of
‘normal’ and criminal women are questionable. Rita James Simon (1975) has also contended that
all the above explanations are incorrect because they contain erroneous presuppositions about
‘normal’ traits of women.

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After the analysis of the viewpoints of the scholars of the past few decades, let us now examine
some recent theoretical contributions. A few criminologists have used Role Theory to explain
women’s crimes.
While advocating this theory, it is pointed out by scholars like Frances Heidensohn (1968:

170), Marie Andree Bertrand (1969: 74), etc. that owing to close supervision and social
restrictions on women, socialization and development of consciousness, and self-perception,
vary considerably between boys and girls.
Girls are usually trained to be passive, domesticated and non-violent and are not allowed to learn
how to fight or use weapons. Contrary to this, boys are aggressive, ambitious and outward-going.
Girls thus shrink from violence and do not possess the necessary technical ability or strength to
engage in crimes of violence, armed robberies, gang fights, etc.
At worst, they engage in petty or domestic offences. Talcott Parsons (1949) also held that
the low incidence of female crime was due to the ready availability of a female adult (since
mother normally stayed at home) upon which the female child modeled her behaviour.
Grosser (see, Mukherjee and Scutt, 1981: 72) maintained that it was the inability of
females to express themselves through their criminality that accounted for the high disparity in
the sex ratio in crime statistics.
Cohen (1955) contended that the subculture of delinquency which presented a solution to the
status problems of adolescents was uniquely male in character. Females were unable to ‘prove’
themselves by acts such as theft or vandalism as they represented the very antithesis of their sex
role expectations.
Smart (1976: 71) and Scutt (1976: 28) attempted in 1976 to update the role theory by
incorporating within the role of school, peer group and occupational group, besides family, as
socializing agents. But both of them had strong reservations about the value of role theory as an
explanation for female criminality.

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