F.Y L.L.

B SEM II CLASS TEST

SUB: LAW OF CRIMES

1. Theories of Punishment
 What is Punishment
According to the dictionary, punishment involves the infliction of suffering
or forfeiture; it is the imposition of a fine, punishment, or sentencing by the
State's judicial branch. However, if the only goal of punishment is to harm
the offender physically. It is just marginally useful. However, a punishment
is deemed to have succeeded if it causes the offender to recognise the
seriousness of the offence he committed, repent, and make apologies for it
(neutralising the impact of his wrongful act).

A person is said to be ”punished” when some pain or detriment is inflicted

on him. This may range from the death penalty to a token fine

1. RETRIBUTIVE THEORY.
The Retributive idea of Punishment, sometimes known as the 'Theory of
Vengeance' by many in society, is the most basic, yet callous, idea of inflicting
a punitive term on a wrongdoer. It is founded on a relatively modest doctrine
known as Lex talionis, which translates as "an eye for an eye." When seen in
the context of extremely serious and heinous crimes, such as the Delhi gang
rape case, individuals may believe that it is preferable to inflict such retributive
punishments in order to ensure that a deterrent is established across society
in order to prevent such crimes in the future.

‘The concept of retributive justice has been used in a variety of ways, but it
is best understood as that form of justice committed to the following three
principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically

serious crimes, morally deserve to suffer a proportionate punishment;

2. that it is intrinsically morally good—good without reference to any other

goods that might arise—if some legitimate punisher gives them the
punishment they deserve; and

3. that it is morally impermissible intentionally to punish the innocent or to

inflict disproportionately large punishments on wrongdoers.’

Case Law:

Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted
had already undergone a six month imprisonment term, before being officially
convicted by the Court. The Court held that since the convict had been
convicted and also, the required ‘blemish’ had also been imposed upon him, it
was not necessary to sentence him again in the name of ‘retributive
punishment’, as it would inflict a very big loss upon the family as well.
Pros and Cons:

Pros-
Acts as a strong deterrent.
Helps in giving moral justice to the victim.
Instils the feeling of trust within the society, towards the judiciary.

Cons-
Sometimes, may become disproportionate with the seriousness of the crime.
Society develops feelings of vengeance and destructive tendencies follow.
The State may become autocratic in its functioning, using the punishment to
torment people.

2. DETERRENT THEORY.
The term "DETER" in the Deterrent Theory of Punishment implies to refrain
from committing any wrongful conduct. The primary goal of this philosophy is
to "deter" (prevent) criminals from attempting or repeating the same act in the
future. As a result, it asserts that the goal is to deter crime by instilling fear in
individuals or the entire society by punishing the guilty.

That simply means that, according to this theory, if someone commits a crime
and is punished severely, the people of the society may become aware of the
severe punishments for certain types of crimes, and as a result of this fear in
the minds of the people of the society, the people may refrain from committing
any kind of crime or wrongful act. In this case, I used the word "may stop"
rather than "will stop." That suggests there is a chance of committing a
criminal or repeating a crime.

The utilitarian nature of the prevention idea of punishment is evident. For a

better comprehension, we might remark, "The man is punished not only
because he committed a wrongful act, but also to ensure that the crime will
not be committed again." It is best expressed by Burnett, J, who said to a
prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other
horses may not be stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a
crime, the deterrent theory hopes to control the crime rate in the society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally
been served to “India’s Daughter” and though the decision came after a
staggering seven years, it will help to secure the safety of women and prevent
rape cases in the future. But it seems to further, as starting of the year 2020
has seen a slew of rape cases continue unabated. As an example, we can see
for a recent gang rape case which was happened at Hathras, Balrampur, on
1st October 2020. So, simply we can see that there is no improvement through
severe punishments also. “Death penalty does not act as a deter to rape
cases”- This is the actual message we have understood. So that’s why we can
say that in today’s generation there is no major implication of ‘Deterrent
Theory of Punishment’.

3. PREVENTIVE THEORY.
Preventive theory of punishment seeks to prevent prospective crimes by
disabling the criminals. Main object of the preventive theory is transforming
the criminal, either permanently or temporarily. Under this theory the
criminals are punished by death sentence or life imprisonment etc.

Case Law:

Dr. Jacob George v state of Kerala: In this case, the Supreme Court held that
the aim of punishment should be deterrent, reformative, preventive, retributive
& compensatory. One theory preferred over the other is not a sound policy of
punishment. Each theory of punishment should be used independently or
incorporated on the basis of merit of the case. It is also stated that “every saint
has a past & every sinner has a fortune”. Criminals are very much a part of the
society so it is a responsibility of the society also to reform & correct them and
make them sober citizens of the society. Because the prevention of crime is the
major goal of the society and law, both of which cannot be ignored.

4. COMPENSATORY THEORY.

The primary goal of criminal law is to penalise the criminal and/or seek his
reformation and rehabilitation using all of the resources and goodwill available
through the courts and other governmental and non-governmental
organisations. It must be ensured that criminals receive proper punishment for
their crimes as well as the harassment caused to the victim, their family
members, and their property. Victims of crime might be reimbursed primarily
on two grounds:

(a) A criminal who had inflicted an injury against the person (or group of
persons), or the property must be compensated for the loss caused that has
caused to the victim, and

(b) The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.

Compensation is the true essence of deterrent, reformative and a necessary

contribution of retribution.

Case Law:

In the landmark case of DK Basu v. State of West Bengal the Apex Court held
that a victim who is under the custodial right, has every right to get
compensated as her Right to Life, which is under Article 21 of the Constitution,
has been breached by the officer of the State.
5. REFORMATIVE THEORY.

The Reformative Theory is based on a postulate. According to this idea, the

goal of discipline should be to modify the attitude through the individualization
technique. It is based on the humanistic principle that regardless of whether a
wrongdoer commits a transgression, he continues to be a person. In this way,
an effort should be made to modify him/her throughout his/her detention. For
example, he may have engaged in inappropriate behaviour under
circumstances that will never occur again. As a result, every attempt should be
made to alter him throughout his incarceration. The goal of the order should
be to make a moral difference in the liable party. He should be told and do
some type of craftsmanship or industry.

2. Stages of Crime
 Introduction:
Intention, preparation, attempt, and accomplishment are the stages of
crime or elements of a crime. A crime's composition contains all of the
ingredients. Some of these factors are punishable even before the offence is
committed. All of the stages are further discussed below:

1. Intention
The fundamental ingredients of a crime are'mens rea' and 'actus reus,' with the
former being the intention to commit a crime and the latter being the act
carried out in furtherance of the intention. A person's criminal responsibility is
determined solely when he or she possesses a malicious intent. The decision is
suggested by the direction of action towards the objects chosen after
considering the motive. Because it is nearly difficult to determine a person's
intentions, mere intent shall not constitute a crime. As the old adage goes, "the
devil himself knows not a man's intention." Because it is difficult to ascertain a
man's intentions, a criminal culpability cannot be formed at this time.

Mens rea is Latin for "guilty mind." This basically means that the individual
committing the crime is aware of his or her acts and is aware that carrying
them out will result in a crime. To put it simply, the individual committing a
crime should have malicious intent. Mens rea is further classified into four
categories based on the degree of purpose to do the crime. These four stages
are as follows:

(a) Negligence: This is the simplest and most mild form of mens rea, in which
the individual is negligent of his/her actions and fails to exercise reasonable
care in his/her act/omission.

(b) Recklessness is a slightly larger amplitude than negligence in that the

individual can anticipate the crime that may result from the act/omission
but does not expect or intend the same and acts negligently.

(c) Knowledge: The third stage is knowledge, in which the person is aware of
the risks involved with his act/omission and continues to engage in such
act/omission. In this case, he or she is not careless.
 (d) Intent: This has the greatest amplitude when the person knowingly
performs or fails to perform an act in order to commit the crime.

Actus reus is the act or omission on part of the person which causes a crime and
involves some physical activity. It is imperative to note that not just an act but an
omission can also be a crime. For example, non-payment of taxes or maintenance is a
crime.

2. Preparation
Preparation is the next stage of a crime. It can be defined as an act committed
in pursuit of a person's malicious aim. It is an act committed in order to
attempt and complete the crime. In the prior example, if A legally acquires a
weapon and carries it with him, he is preparing to commit a crime.

Reasons Why Preparation is not Punishable?

The usual rule under the law is that planning a crime is not punished. The
general rule is based on the fact that it is nearly impossible to prove that the
accused made preparations to commit the crime. Aside from that, the locus
poenitentiae test is used when the guilt of preparation is in issue. The test
provides an option for a person to withdraw from his behaviour before
committing the intended crime.

Exceptions:
1. Preparation to wage a war against the Government of India Section 122
2. Counterfeiting coins Section 233, 234, and 235
3. Manipulation of the weight of the coins Section 244, 246, 247
4. Counterfeiting Government stamps Section 255
5. Preparation to commit a dacoity Section 399
6. Possession of forged documents Section 474

3. Attempt
There is a fine line between preparing to commit a crime and actually
attempting to commit one. It can be described as an action taken in
furtherance of a person's purpose and preparedness to commit a crime. As a
result, an effort to commit a crime is frequently referred to as a "preliminary
crime." Under the Code, attempting to commit a criminal is a crime. It is
included in various provisions for certain offences. However, Section 511 of the
Code comes into play when there is no punishment for attempting to commit a
specific crime. The following are some of the specific Code prohibitions that
apply to an attempt to commit a crime:

Section 121 – Attempt to wage a war;

Section 131 – Attempt to seduce a soldier, sailor or airman from his duty;
Section 307 – Attempt to murder;
Section 308 – Attempt to culpable homicide;
Section 309 – Attempt to suicide;
Section 326B – Attempt to throw suicide;
Section 356 – Attempt to commit theft;
Section 357 – Attempt to wrongfully confine a person;
Section 393 – Attempt to commit robbery;
Section 397 – Robbery or dacoity with an attempt to cause death or grievous hurt;

Tests for determining an attempt to commit a crime

1. The proximity rule states that in circumstances when the accused does a
series of activities in furtherance of his intent to commit a crime, the
liability is determined by the proximity with the completion of the Act.

2. Locus Poenitentiae - The idea of locus poenitentiae states that if a person

refrains from actually committing a crime, it is considered mere preparation.
The idea was developed after determining that a person has a reasonable
opportunity to refrain from committing the offence.

3. The equivocality test holds that when a person's actions demonstrate

beyond a reasonable doubt the likelihood of committing a crime, it is
considered an attempt to commit the crime rather than simple preparation.

4. Accomplishment
When an attempt to commit a crime is successful, the crime is accomplished.
Everyone is responsible for the act, transgression, or crime that they conduct
or complete. The rules of the Code establish precise sanctions for certain
offences committed in the country.

Conclusion

For a long time, the judiciary has identified and adopted the four stages of a
crime. These stages must be classified in order to determine the guilt of a
crime at each step. As the courts cannot ignore the legal maxim of locus
poenitentiae, responsibility generally emerges during the attempt and actual
conduct of the crime. The distinction between the planning and the attempt to
commit a crime is a frequent issue before the courts.

3. Actus Non Facit Reum, Nisi Mens Sit Rea

 (I) Literal Meaning: An act does not make one guilty unless there is a
criminal intent

(II) Origin: Latin

(III) Explanation: According to this maxim, to be guilty of a crime under

criminal law, two elements are considered which include a guilty act and a
guilty state of mind. Without a guilty mind or a criminal intent, there is no
crime. In general, the act itself does not make a man guilty, unless his
intention is so. There must be a vicious will or criminal intention as well as
an unlawful act. For committing a crime, the intention and the act both are
taken to be constituents of the crime. Under Section 14 of the Indian
Evidence Act, 1872 the facts which indicate the state of mind or intention
are relevant facts in issue.
 (IV) Illustration: An accused who commits a motor vehicle accident leading
to the death of a victim shall be charged for murder if the accused had the
intention of killing Le. his act and mind worked in unison to execute the
crime. Otherwise, it would be considered as an accident or negligence on
part of the occused. Also, in other words, a person who is suffering from a
mental disorder cannot be said to have committed a crime as he does not
know what he is doing.

(V) Case Law: The Supreme Court in the State of Rajasthan vs Shera Ram
held that "for committing a crime, the intention and act both are taken to be
the constituents of the crime, actus non facit reum nisi mens sit rea. Every
normal and sane human being is expected to possess some degree of reason
to be responsible for his/her conduct and acts unless the contrary is
proved. But a person of unsound mind or a person suffering from a mental
disorder cannot be said to possess this basic norm of human behaviour."

4. Territorial & Extra Territorial Operation of IPC

 The Indian Penal Code, 1860 is one of the most comprehensive penal code
anywhere in the world as it came into force on 1st January 1862 where it is
a territorial law. It extends to the whole of India except the State of Jammu
and Kashmir.

Sections 1 to 5 of Indian Penal Code, 1860 deals with the provisions relating
to title, extent, operation and Jurisdiction of the code.

Jurisdiction
It is an aspect of state sovereignty and it refers to judicial, legislative and
administrative competence. Jurisdiction may be defined as power or
authority of a court to hear and determine a case, to adjudicate and exercise
any judicial power in relation to it by taking cognizance of matters presented
before the court. There are two kinds of the jurisdiction of courts-

Inherent Jurisdiction- Here the court is not empowered to try the case;

Local Jurisdiction- It means the limit of the area in which the court can
exercise its powers.

Intra-Territorial Application of the Code (Section-2)

Section 2 talks about the Punishment of offences committed within India. It
lays down that for every act or omissions contrary to the provisions of the
Code, every person shall be held liable. To hold a person liable under this
Code, the act or omission contrary to the law must have been committed
within India.

As seen above, the territorial jurisdiction of a State, therefore, extends into

the sea as far as twelve miles. The territorial jurisdiction includes land plus
the portion of the sea washing its coasts up to twelve miles into the sea.
This is called as Maritime territory of a State. In India, it extended to twelve
miles under the Notification of the Government of India on 30th September
1967.
In a case decided by Bombay High Court, Emp. V Kastya Rama (1871) 8
Bom H.C.R. 63, the accused sailed into the sea within three miles of the
coast, and removed the number of fishing stakes belonging to the
complainant. It was held that the local criminal court had jurisdiction over
the offenders, that the Code applied to the case, and offence amounted to
mischief,
Under Section 2, all persons are held liable for offences committed by them
without any reference as to rank or nationality, caste, or creed.

Thus if a German or Frenchman commits adultery in India, he will be held

liable under this code, He cannot plead that, in his country adultery is not
an offence. Although such ignorance of Indian law is not the defence, yet, it
is a matter to be considered by the court for mitigation or punishment.

There is an interesting case decided by the Calcutta High court (Crown v.

Esop, (1836) 7 C & P. 456), the accused was indicted for an unnatural
offence committee on board an East India ship, lying in St. Katherine's
Docks. It was argued that he was a native of Baghdad where his actions
would not have amounted to an offence. However, the court held that this
was not a legal defence.

Section 2 mentions Every Person-

The IPC is primarily meant to punish offences committed by natural
persons. Section 2 of the Code makes it clear that ‘every person' shall be
amendable to the jurisdiction of the code irrespective of caste, creed,
nationality[1], religion, rank, or sex, for offences committed within Indian
territory.

In case of Mobarak Ali vs. State of Bombay AIR 1957 SC 857, a Pakistani
citizen, while staying in Karachi made false representations and induced the
complainant to part with money amounting to over rupees five lakh to the
agents of the accused at Bombay, so that rice could be shipped from
Karachi to India as per agreement.

But the rice was never supplied. The accused was arrested, while he was in
England, and brought to Bombay through extradition proceedings, where he
was prosecuted and convicted under Section 420 of the Penal Code for
Cheating. The Supreme Court upheld the conviction and held that the
offence was committed by the accused at Bombay, even though he was not
physically present there at that material time.

It includes not only citizens but non- citizens and even foreigners visiting
the country. However, it does not include a non- judicial person such as a
corporation or a company, because a company cannot be indicted and
charged for offences, such as murder, dacoity, robbery, adultery, bigamy,
rape, etc as these can only be committed by a human being. Of course, a
corporation is liable for criminal acts or omissions of its directors or agents
or servants[2] and for contempt of court on the principles of vicarious
liability.
 Thus, a foreigner entering into India and committing an offence is
punishable under the Code. Section 2 is based on the principle that every
person present on the country's soil is under the protective net of its laws
and therefore, must also be accountable for any offence, that he may
commit while present in that contrary, according to its laws.

But there are a few classes of persons who are not liable to be
punishable for any crime under the code:
1. The President and the Governor of the State: Under Article 361of
Constitution of India, the President and the Governor of States are
exempted from civil and criminal proceedings.
2. Foreign Sovereigns: A foreign Sovereign cannot be punished under the
code according to the rules of international law[3].

Extra-Territorial Operation of The Code:

Section 3 and 4 relate to the extraterritorial operation of the code. As seen above,
in order to invoke liability under Section 2, the offence should have been
committed in Indian soil. But there are certain types of persons enumerated in
Section 4 of the Code, who are liable to be tried by Indian Courts, even though
they have committed offences outside India.

Section 3 and 4 lay down that an offence committed outside India may be
tried as an offence committed in India in the following three causes, namely
when an offence is committed by:

(a) Any citizen of India in any place without and beyond India;
(b) Any person on any ship or aircraft registered in India, wherever it may be;
(c.) Any person in any place without and beyond India committing an offence
targeting a computer resource located in India.

For the purpose of this Section, the word offence includes every act committed
outside India which, if committed in India would be punishable under the Indian
Penal Code.

Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be

tried and convicted of murder in any place in India in which he may be found.

If an offence is committed outside India, but the offender is found within

India:

(i) He may be given up for trial in the country where the offence was
committed (extradition); or
(ii) He may be tried in India (extraterritorial jurisdiction)

Meaning of Terms:

Man: Section 10 of IPC gives the meaning of Man as The word “man” denotes a
male human being of any age.
Woman: Section 10 of IPC gives the meaning of Woman as The word “woman”
denotes a female human being of any age.

Public Servant: Section 12 The words “public servant” denote a person falling
under any of the descriptions hereinafter following, namely:

Every Commissioned Officer in the Military [Naval or Air Forces] of India;

Every Judge including any person empowered by law to discharge, whether by

himself or as a member of any body of persons, any adjudicatory functions;

Every officer of a Court of Justice 10[(including a liquidator, receiver or

commissioner)] whose duty it is, as such officer, to investigate or report on any
matter of law or fact, or to make, authenticate, or keep any document, or to take
charge or dispose of any property, or to execute any judicial process, or to
administer any oath, or to interpret, or to preserve order in the Court, and every
person specially authorised by a Court of Justice to perform any of such duties;

Every juryman, assessor, or member of a panchayat assisting a Court of Justice

or public servant;

Every arbitrator or other person to whom any cause or matter has been referred
for decision or report by any Court of Justice, or by any other competent public
authority;

Every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;

Every officer of 1[the Government] whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offenders to justice, or to protect
the public health, safety or convenience;

Every officer whose duty it is as such officer, to take, receive, keep or expend any
property on behalf of 1[the Government], or to make any survey, assessment or
contract on behalf of 1[the Government], or to execute any revenue-process, or to
investigate, or to report, on any matter affecting the pecuniary interests of 1[the
Government], or to make, authenticate or keep any document relating to the
pecuniary interests of 1[the Government], or to prevent the infraction of any law
for the protection of the pecuniary interests of 1[the Government]

Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment or to levy any rate or tax for any
secular common purpose of any village, town or district, or to make, authenticate
or keep any document for the ascertaining of the rights of the people of any
village, town or district

Every person who holds any office in virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an
election;]
Every person—

(a) in the service or pay of the Government or remunerated by fees or commission

for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under

a Central, Provincial or State Act or a Government company as defined in section
617 of the Companies Act, 1956 (1 of 1956).]

Document: Section 29 The word “document” denotes any matter expressed or

described upon any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be used, as evidence
of that matter.

Valuable Security: Section 30 The words “valuable security” denote a document

which is, or purports to be, a document whereby any legal right is created,
extended, transferred, restricted, extinguished or released, or whereby any person
acknowledges that he lies under legal liability, or has not a certain legal right.

Public: Section 12 The word “public” includes any class of the public or any
community.

Person: Section 11 The word “person” includes any Company or Association or

body of persons, whether incorporated or not.

Government: Section 17 The word “Government” denotes the Central

Government or the Government of a 2***State.]