CONCEPT OF RECIDIVISM IN INDIA

Isha Gupta

Introduction

A recidivist or a person habitually addicted to crime is one who is a

criminal by habit or by disposition formed by the repetition of crimes.
These are the persons who have embraced criminality as a mode of life
and commit crime with boldness and courage. Reformative measures of
treatment completely fail in case of such offenders. Imprisonment is the
only alternative to prevent recedivists from repeating crime. Various state
and jurisdictions may have laws targeting recidivists, and specifically
providing for enhanced or exemplary punishments or other sanctions.
They are designed to counter recidivists by physical incapacitation via
imprisonment. Laws punishing recidivists are existent in several
jurisdictions, right from the U.S.A to Pakistan, India and Australia. While
the substantive content of the law and the sentence prescribed therein may
vary from country to country, and from state to state in some countries,
but generally they apply when a person has been convicted a minimum of
twice for various crimes. Some codes may differentiate between classes of
crimes (for example, some codes only deal with violent crime) and the
length of time between convictions. Usually the sentence is greatly


LL.B. from M.D.U. Rohtak and LL.M. from RGNUL, Patiala.
enhanced, in some circumstances it may be substantially more than the
maximum sentence for the crime. Habitual offender laws may provide
for mandatory sentencing - in which a minimum sentence must be
imposed, or may allow judicial discretion in allowing the court to
determine a proper sentence. One example of a habitual offender statute is
a provision requiring the revocation of a driver's license for a
person convicted multiple times of driving under the influence.1
Recidivists are the persons who have embraced criminality as a mode of
life and commit crime with boldness and courage. Reformative measures
of treatment completely fail in case of such offenders. Imprisonment is the
only alternative to prevent habitual offenders from repeating crime.

The ever –increasing commission of crime habitually is undoubtedly a

crucial problem for penologists in the crime control and rehabilitation of
offenders.

A. Meaning

Recidivism is a tendency to lapse into a previous pattern of behavior,

especially a pattern of criminal habits. Many courts are now utilizing drug
and alcohol treatment programs to reduce the recidivism rate of offenders
who commit drug or alcohol related crimes. Recidivism is often used to
identify the success of a specific institutional program.

Recidivism means the rearrest, reconviction, or reincarceration of former

inmates. Recidivism is the critical outcome variable in corrections, but
assessing recidivism is a very complex measurement problem. Re-
 admission to prison is the most conservative measure; most studies use
arrest for a new crime.

The effect of prison or jail sentences on recidivism is an important issue to

those concerned with public safety and the cost-effectiveness of putting
convicted offenders in prison. Opinions are divided between those
advocating longer sentences in the interest of public safety, and those
advocating shorter sentences with the assumption that incarceration, or
longer prison terms, will not reduce recidivism rates.

B. Characteristics of Recidivists2
1. Age

A sizable proportion of recidivists are young or middle-aged, and they

have become younger in recent years. Among recidivists, the 20-40 years
old age group accounts for more than 85% of the total number of
offenders. Compared to first-time offenders, recidivists are generally
older. An investigation shows that the 18-25 years old age group accounts
for 53.5% of all first-time offenders, and the 26-35 years old age group
accounts for 30%; while the 18-25 years old age group accounts for 33.2%
of all recidivists; the 26-35 years old accounts for 45%. Most first-time
offenders are 18-25 years old, and most recidivists are 26-35 years old.

2. Educational Level

Recidivists’ educational level is generally on the low side. According to

the investigation conducted in India, 94.7% of all recidivists are educated
to middle or junior high school level only.
3. Occupation

Among recidivists, the number of unemployed and peasant class persons

is huge, accounting for 86.7% of the total amount.

4. Sex

99.1% of recidivists are male.

5. Living Environment

An investigation shows that most released prisoners live in the countryside

or in small towns, and many of them have no jobs. Compared to first-time
offenders, recidivists’ occupational status and employment histories are
generally humble. Because of unemployment and social discrimination,
the majority of offenders return to crime after release from prison.

6. Timeframe

A majority (57.1%) of recidivists recommit crime within three years of

release from prison. This fact demonstrates that the first three years after
release is a key period in establishing an effective return to society.

C. Causes for Recidivism3

Recidivism is the most dangerous form of criminal activity. Repeated

offences indicate a stubborn refusal to face socially useful lives. The
causes for the recidivism are as follows:
1. Shortcomings of Law Enforcement

In another reason causing commission of crimes habitually is

shortcomings of law enforcement. This failure to respond to crime, when
slowness criminal cases, and low crime-solving, and violation of the law
on the comprehensive, full and objective investigation of the
circumstances of the offence.

2. Difficulties of Social Adaptation of Persons Released From Punishment

The third reason of causes of crimes habitually should be attributed the

difficulties of social adaptation of persons released from punishment, and
especially from those already named in prison. They arise in connection
with the shutdown of the convict from normal life of society, weakening
or even complete destruction of the social formation of good relationships
and exchange of anti-social ties, "habituation" to the regime and
conditions in prisons, psychiatric disorders that appear due to prolonged
confinement in a closed and isolated system. Also a very negative effect
on the distribution of prisoners and criminals to each other to impose
customs and traditions of the criminal environment.

5. Other factors

5.2. Peer influence

A person's peer group strongly influences a decision to commit crime. For

example, young boys and girls who do not fit into expected standards of
academic achievement can sometimes become lost in the competition.
Children of families who cannot afford adequate clothing school
supplies can also fall into the same trp. Researchers believe these youth ab
andon schoolmates in favor of criminal gangs, since membership in a gang
earns respect and status in a different manner. In gangs, antisocial
behavior and criminal activity earns respect and street credibility. Like
society in general, criminal gangs are usually focused on material gain.
Gangs, however, resort to extortion, fraud, and theft as a means of
achieving it.

5.3 Drugs and alcohol

Some social factors pose an especially strong influence over a person's

ability to make choices. Drug and alcohol abuse is one such factor. The
urge to commit crime to support a drug habit definitely influences the
decision process. Both drugs and alcohol impair judgment and reduce
inhibitions (socially defined rules of behavior), giving a person
greater courage to commit a crime. Deterrents such as long prison
sentences have little meaning when a person is high or drunk.

D. Preventive Measures to Control Recidivists4

Twenty- first century materialism has contributed substantially to the

growing incidence of recidivists. The concept of morality, mutual respect,
fear, love and faith have lost their importance in modern times.
Consequently, humanity and human values have lost their credence. Under
the circumstances, resort to crime is considered as an easy mode of
earning money and satisfying egoistic needs of life. The need of the time,
 therefore, demands that law courts should take notice of this psychology
working behind the modern “criminal” and award punishment which may
suit the individual offender, the society as also the ends of criminal justice.
Some of the measures which may be suggested for suppressing recidivists
are as follow:

1. Improvised Integrated Programme of Legal Sentence and Treatment

Experience has shown that individualized methods of treatment serve no

useful purpose in case of recidivists. At the same time, deterrent punitive
measures have also proved equally ineffective in their case. It is, therefore,
desired that an integrated programme of legal sentence and treatment be
improvised in the penal system for the rehabilitation of recidivists.

2. Arrange the Prisons with Maximum Security

Recidivists should be kept in prisons equipped with maximum security

arrangements. They should be under the constant surveillance so that
security is fully protected against these miscreants.

3. Adequate After –Care Treatment

Adequate After –Care treatment at the time of inmate’s release from

prison or a correctional institution may prepare him for an upright living in
society, shedding aside his inferiority complex. This would include hope,
self –confidence and self –respect in the offender which would enable him
to adjust himself to the conditions of normal life in society.
4. Need for Amendment in the Lengthy Criminal Trials

Unduly lengthy procedure of criminal trial should be suitably amended to

secure summary conviction of recidivists and hardened offenders.
Avoiding delays in criminal trials is all the more necessary to ensure that
the gravity of the offence is not washed off by long delays. Speedy trials
and punishment can further be effective in putting a check on the offender
reaping undue benefit of his criminal act. His immediate conviction after
the incidence of crime shall act as a sufficient deterrent to dissuade him
from repeating crime.

F. Statutory Provision

1. Code of Criminal Procedure, 1973

1.1 Sec.110: Security for good behaviour from recidivists

1.1.1 Scope and Application5

Recidivists are one of the three categories of persons security can be taken
for good behaviour and desperate character. The various categories of the
recidivists are mentioned in the Section110 of Criminal Procedure Code.
The object of the proceedings under this section is prevention and not
punishment of offences.6 It is to be used solely for the purpose of securing
future good behaviour; it can be never used for the purpose of punishing
past offences.7

Section 110 confers drastic power, which should be used with extreme
caution. The passing of preliminary order under section 111 of the Code is
a condition precedent for taking further steps: no final order in proceeding
can be passes without giving an opportunity to such person to show
cause.8

1.1.2 Is by Habit A Robber, House Breaker, Thief Etc.... Clause (a)9

The expressions like ‘by habit’, ‘habitual’, ‘desperate’, ‘dangerous’,

‘hazardous’ cannot be flung in the face of a man with laxity of semantics.
The court must insist on specificity of facts and be satisfied that a
consistent course of conduct convincing enough to draw the rigorous
inference that by confirmed habit, which is second nature, the person is
sure to commit the offences mentioned if he is not kept captive. To call a
man dangerous is itself dangerous, to call a man desperate is to affix a
desperate adjective: to stigmatise a person as hazardous to the community
is itself a judicial hazard unless compulsive testimony carrying credence is
abundantly available.10

1.2 Section 365: Order for notifying address of previously convicted

offender

Section 356 (1), a Magistrate of the First Class or a judicial officer

superior to his cadre may impose a condition upon the accused that the
residential address of the accused shall be notified for a period of five
years from the date of the release of the accused from prison.

It is important to bear it in mind that the period of five years commences

from the date of the release of the accused from jail. It is obligatory on the
part of the accused to inform his residential address and any change in the
 residential address for the purpose of Section 356 Criminal Procedure
Code.

Obviously, if a conviction is preceded by an order under Section 356(1) of

Criminal Procedure Code is set aside in appeal or revision, the order as to
what to the notification of the residential address of the accused
automatically becomes inoperative

2. Indian Penal Code, 1860

2.1 Section 75: Enhancement of Punishment

This section does not constitute a separate offence but only imposes a
liability to enhanced the punishment. The meaning of this section is, that
when an offender having been convicted by a Court of India, for an
offence under Chapter XII (offences relating to coin and Government
Stamp) or Chapter XVII (offences against property) of the Code,
punishable with three years imprisonment or upwards, commits a offence
of similar description after his release from prison, he is liable to increased
punishment, on the ground that the punishment has had no effect in
preventing repetition of the crime.

2.2 Section 310 and Section 311: Thug and Punishment for Thug

Gangs of person habitually associated for the purpose of inveigling and

murders travellers or others in order to take their property, etc. are called
Thugs. Thugs are robbers and dacoits, but all robbers and dacoits are not
thugs. Thugs committed robbery or dacoity or kidnapping always
accompanied with murder. Killing of the victim was the essential thing.
Section 311 incorporates the punishment for thug, according to which a
thug, shall be punished with imprisonment for life and shall also be liable
to fine.

2.3 Section 400: Punishment for Belonging to Gang of Dacoits

This section provides for the punishment for those who belong to a gang
of persons who make it their business to commit dacoity. Its object is to
break up gang of dacoits by punishing persons associated for the purpose
of committing dacoity.

The expression ‘belong’ refers to those persons who habitually associate

with the gang of dacoits and actively assist them in their operation. The
word ‘gang’ means any band or company of persons who go about
together or act in concert. The essence of the word is that the persons
should act in concert.11

2.4 Section 401: Punishment for Belonging to Gang of Thieves

The principle enunciated in the last section is extended by this section to a

gong of thieves or robbers. It is not necessary to prove that each individual
member of gang has habitually committed theft or has committed any
particular theft in the company with the other members.

2.5 Section 413: Habitually Dealing in Stolen Property

This section punishes severely the common receiver or professional dealer

in stolen property. One who casually receives stolen property is punished
 under the two preceding sections according to that taint attaching to the
property. A person cannot be said to be a habitual receiver of stolen goods
who may receive the proceeds of a number of different robberies from a
number of different thieves on the same day. It must be shown that the
property was received on different occasions and on different dates.12

3 Indian Evidence Act, 1872

3.1 Section 54: Previous Bad Character Not Relevant, Except in Reply

In criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been that he has a good
character, in which case it becomes relevant.

3.1.1 Evidence of general bad repute and evidence of previous conviction.

In Bai Chaturi v.State13 , evidence of general bad repute is a type of

evidence of bad character. It is provided in Section 54 of the Evidence act
that in criminal proceedings the fact that the accused person has a bad
character is irrelevant, unless evidence has been given that he has a good
character in which case it becomes relevant. Explanation 1 of Sec. 54
provides that this section does not apply to case in which the bad character
of a person is itself a fact in issue. Explanation 2 of Sec. 54 provides that a
previous conviction is relevant as evidence of bad character. It is
therefore, clear that evidence of bad character is relevant only when
evidence has been given of good character of the accused and in cases
where bad character of a person is itself a fact in issue.
In Mankura Pasi v. Queen Empress14, It was held that the character of the
accused not being a fact in issue in the offence of belonging to gang of
persons associated for the purpose of habitually committing theft
punishable under Sec. 401 of the I.P.C., evidence of bad character or
reputation of the accused was inadmissible for the purpose of proving the
commission of the offence.

But in Bonai v. Emperor15, it has been observed that in cases where the
other evidence has established association for the purpose of habitually
committing theft, evidence of previous convictions whether for offences
against property or for bad livelihood, has always been admitted, not as
evidence of character, but as evidence of habit. It was also observed that:

“such evidence must of course be weighed. A single instance of theft

would account for little or nothing. There must be at least two or more
cases against the same individual to show habit”.

The question which was considered was whether evidence of previous

convictions was admissible and it was held that it is admissible in an
offence under section 401 of I.P.C, not as an evidence of character but as
an evidence of habit. Impliedly, therefore, even in this case it was held that
because evidence of bad character is not admissible, so habit has to be
proved. Previous convictions may be admissible to prove habit of
committing offences of theft.
 G. Suggestions

Promoting public safety and controlling recidivism is a complex and

systematic project. From the results of the above research work, I
believe deeply that the following process should be adopted to keep
check on the recidivists.

1. The Prison System

Every state should have at least six distinct sets of institutions to deal with
the criminal class.

1. County and city jails for the detention of offenders awaiting trial.

2. Reform schools for delinquent children under sixteen years of age who
require institutional treatment.

3. Industrial reformatories for adult first offenders between sixteen and

thirty years of age who require institutional treatment.

4. Special reformatories for vagrants, inebriates, and prostitutes.

5. A hospital prison for the criminal insane.

6. County and state penitentiaries for incorrigible, hardened criminals.

If any one of these sets of institutions is lacking in a state, it is impossible

for the state to deal properly in a remedial way with the problem of crime.
All these institutions, of course, need to be manned by experts and
equipped in the best possible way.
2. Alternatives for Imprisonment

Some classes of offenders may be reformed outside of prison walls. This

is especially true of children, of the younger misdemeanants, and of those
who have committed their first felony. It has been found that by
suspending sentences in such cases, giving the person liberty upon certain
conditions, and placing him under the surveillance of an officer of the
court who will stand in the relation of friend and quasi-guardian to him,
that reformation can, in many cases, be easily accomplished. This is
known as the probation system. It has been characterized as "a
reformatory without walls." The system, however, will not work well
without trained probation officers to watch over those who are given
conditional liberty. The practice of placing upon probation without
probation officers is a questionable one and is liable to bring in disrepute
the whole system. Probation is not mere leniency, as some suppose, but is
rather a system of reformation in line with the most scientific approved
methods.

3. Juvenile in Conflict with Law

The treatment of delinquent children constitutes a special problem in

itself. It has recently come to be well recognized that criminal tendencies
nearly always appear in childhood, and that if we can over-come these
tendencies in the delinquent child, we shall largely prevent the existence
of an habitual criminal class. Strictly speaking, of course, the child is a
presumptive rather than a real criminal. The delinquent child is socially
maladjusted and is scarcely ever to be considered an enemy of organized
society. Delinquent children should be dealt with, therefore, as
presumptive rather than as genuine criminals. In general, therefore, they
should not be arrested, should not be put in jail with older offenders, and
should be tried by a special court in which the judge representing the state
plays the role of a parent.

H. Conclusion

In order practically to wipe out crime in society, as we have already said,

three things are necessary. First, every individual must have a good birth;
that is, heredity must be controlled so that only those who are physically
and mentally sound are allowed to marry and reproduce. Second, every
individual must have a good training, both at home and at school, so as to
adjust him properly to the social life. His education must fit him to take
his place among other men, make him able to take care of himself, and to
help others; and make him, in every possible way, acquainted with the
social inheritance of the race. Last but not least, just social conditions must
be provided. Everything in the social environment must be carefully
looked after in order to insure th1e best development of the individual and
to prevent his environment from being in any way a drawback to him.

REFERENCES

1
1
Retrieved from <http://www.enotes.com/topic/Habitual_offender> visited on 18th Oct., 2012, 14:29 IST.

2
Retrieved from <http://www.unafei.or.jp/english/pdf/RS_No74/No74_11PA_Tongzhi.pdf> visited on 18th Oct., 2012,
17:48 IST.

3
Retrieved from <http://www.criminologyresearchcouncil.gov.au/reports/4-i-81.pdf> visited on 2nd Oct., 2012, 22:07 IST.

4
Retrieved from < http://www.ncpc.org/.../strategy-dealing-with-serious-habitual.pdf> visited on 8th Oct., 2012, 22:18 IST.
5
R.V. Kelkar, Criminal Procedure, 5th Edition, Eastern Book Company, Lucknow (2008), p.752.
6
Lalookhan v. M.M. Kamble, 1996 Cr.L.J. 801 Bom.
7
S Bharat Kumar v. Chief Election Commissioner of India, 1995 Cr. L. J 2608 AP.
8
Surender v. State of Maharashtra, 2001 (4) Crimes 2 Bom.
9
Supra note, 2.
10
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
11
Sharaf Shah Khan, AIR 1963 AP 314.
12
Baburam Kansari, (1891) 19 Cal 190.
13
AIR 1960 Gujrat 5(v 47 C2)
14
ILR 27 Cal 139
15
ILR 38 Cal. 408