Criminology & Penology Victimology: Central Law Publications

Criminology &
Penology
with
Victimology
By
Dr. N.V. Paranjape
M.A., LL.M., Ph.D., (Law) & Ph.D. (Pol. Sc.)
Formerly, Dean Faculty of law, Barkatullah University, Bhopal, and Head, Post-Graduate
Department of Law, Government State Law College, Bhopal, Ex-Professor, Head & Dean,
Faculty of Law, Jabalpur University.
FIFTEENTH EDITION Reprinted 2012
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First Edition 1973 Reprinted 1999

Second Edition ... 1976 Reprinted 2001
Third Edition 1980 Eleventh Edition ... 2001
Fourth Edition 1983 Reprinted 2002
Fifth Edition 1986 Reprinted 2003
Sixth Edition 1988 Twelfth Edition ... 2005
Seventh Edition ... 1990 Thirteenth Edition... 2007
Eighth Edition 1992 Fourteenth Edition... 2009
Reprinted Edition... 1993 Reprinted 2010
Reprinted Edition... 1994 I Fifteenth Edition ... 2011
Ninth Edition 1996 Reprinted 2012
Tenth Edition 1998
ISBN : 978-93-81292-10-5
Price Rs. 480.00
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flu&tice. SltantaMU Kemka/i

Judge, High Court of M.P., Indore Bench
Foreword
I feel privileged in being asked to contribute a foreword to the book of Dr. N.V.
Paranjape. The book is essentially meant to serve the needs of Bar, Bench, Students,
Researchers and for the persons imparting legal education. The author has taken note
of expanding dimensions of criminological and penological developments taken place
in the recent years globally. He has included the important topics like cyber crimes,
white collar crimes, dowry deaths, domestic violence against women, child
pornorgraphy and sex abuse. The topics regarding probation, parole, juvenile justice,
capital punishment, victimology etc. have also been comprehensively dealt with. The
book written in a lucid style is unique and serves a long felt need.
Dr. Paranjape has vast experience of writing the books as also of teaching law
in various capacities. His scholastic approach and academic acumen is depicted by
the table of cases, select bibliography, appendices and subject index incorporated in
the book. The masterly elucidation and analysis of the criminological principles and
the modern penological approaches will certainly provide a valuable place to the
book in the legal arena. I am sure that the book will be of immense use to the judicial
officers, to those who impart instructions in the judicial academy, to young lawyers
for conducting cases and to the criminal law administrators.
4th June, 2011 Indore
(Shantanu Kemkar)
( iii )
Preface to the First Edition

With the introduction of Criminology as a subject for Legal Studies in Indian
Universities, there has been a pressing demand for a comprehensive book on this
subject from the student community. It is well known that criminology is a socio-
legal subject and with the modem improvised techniques of handling criminals, a
summarisation of criminological findings for the students of this branch of
knowledge has become all the more necessary. The author has endeavoured to
achieve this purpose in the present book.
For the sake of convenience, the entire subject-matter of the book has been
split into two parts. Part I deals with the origin and development of criminal science.
The causation of crime has also been elaborately discussed in this part of the book.
Part II contains information regarding penology and modern techniques of penal
science. The subject has been approached in a legal perspective with emphasis on
recent developments in correctional field of penology.
The author feels greatly indebted to the works of eminent criminologists and
penologists, particularly those of Sutherland and Cressey, J.L. Gillin, G.B. Void,
Donald Taft, Barnes and Teeters, Curtis Bok, Allen Francis, Dr. PK. Sen, K.S. Pillai
and others which have been a source of information and guidance in the compilation
of this book. The author also acknowledges his grateful thanks to Late Professor
Narendra Singh, Head & Dean, Faculty of Law, University of Jabalpur, who wrote a
foreword to this edition. Thanks are also due to Shri Krishna Vinayak Rudra for
typing the manuscript neatly within shortest possible time.
The author also wishes to express his thanks to publishers for bringing out this
book in the present form.
Bhopal Dr. N.V. Paranjape

June, 1973
( vi )
Select Bibliography
Agarwal R.S. Prevention of Crime (Radient Publishers) 1977
Barnes & Teeters New Horizons in Criminology (3rd Ed.) 1966
Bartol urt. R. Criminal Behaviour : A Psychological Approach, 1998.
Baruah Arunaima (ed) Crime Against Children (Kalpar Pub. Delhi) 2002
Batria Puran Dr. Sex & Crime in India (1st Ed.) 1992
Bonger W.A. Criminality & Economic Conditions (1969 Reprint)
Indiana University Press
Burt Cyril The Young Delinquent (1st Ed.) 1938 London
Cavan & Cavan Crime & Delinquency in Britain
Chandra, B. Open Air Prisons (1984 Ed.)
Chang Dai H. Criminology—Cross Cultural Perspectives (Vikas)
Chaturvedi J.C. (edited) Penology & Correctional Administration (Isha Books)
2006
Cohen Frank J. Youth & Crime (New York) 1957
Cenklin John E. Criminology, 1997
Cross & Jones Introduction to Criminal Law (13th Ed.) 1995
Curtis Bok Problems of Criminal Law, 1955
Deb. R. Principles of Criminology, Criminal Law &
Investigation, Vols. I & II (2nd Ed.) 1968
Donald Taft & Criminology (4th Ed.)
R.W. England
Dressier David Readings in Criminology, 1966
Fitzgerald P.J. Criminal Law & Punishment (Oxford) 1962
Francis Allen Borderland of Criminal Justice, 1964
Garofalo Raffaele Criminology (Little Brown & Co.) Boston, 1970
Gault R.H. Criminology (Boston, Heath) 1932
Gaur K.D. Criminal Law and Criminology, (edited) 2003 Deep &
Deep Publications, Delhi
Gillin J.L. Criminology & Penology (3rd Ed.)
Glanville Williams The Criminal Law (2nd Ed.)
Gluck Sheldon The Problem of Delinquency, (Boston) 1959
Heinrich Oppenheimer The Rationale of Punishment, 1913
Howard Jones Crime & Penal System (London Univ. Press) 1956
I.P.P.F. Publication Studies in Penology, 1964
(7)
viii Criminology and Penology
Justie, Punishment & Treatment, 1983

Katherine S. Williams The English Prison & Borstal System, 1972
Comparative Criminology (Lon.) 1965
Kenny
After Care in Transition, 1964
Leonard Orland Lionel Crime Against Humanity (Cambridge University,
Fox Sir Mannheim 2005)
Harmann Martin J.P. Civil Penalties, Social Consequences, Routledge New
May Larry York 2005
Juvenile Delinquency & Indian Judicial System (Deep &
Mele Christopher & Deep Pub.)
Miller T.A. The Futures of Criminology, Sage Pub. 1994.
Mitra N.L. Dr. Crime & Punishment in Britain
Sentencing : Theory and Practice (1985) Butterworths
Nelken David Nigel
Police In Developing Society, 1972
Walker Nigel Walker
Osmania University Law Relating to Probation of Offenders in India
Publication Paranjape (B.R. Publishing Corpn., Delhi) 1988
N.V. Dr. Dimentions of Cyber Crime & Preventive Laws, with
special reference to India (2010) CLA
Paranjape Vishwanath Dr. Crime, Criminal & Convict, 1965
Paripumanand Verma Oaths & Ordeals in Dharmasastras
Pendse S.N. Dr. (M.S. University, Pub. Baroda), 1985
The Tasks of Penology (3rd Ed.) 1970
Periman Harvey &
T. Allington Theories of Criminology The Problem of Crime (New
Pillai K.S. York) 1970 Victimology (Allied Publishers) 1981
Quinney Richard Rajan Cambridge Studies In Criminology Vol. XII, 1960 Crime
V.N. Dr. Radzinowicz L. Problem (5th Ed.) 1973 New York American Prison
Reckless Walter C. System, 1989.
Richard Hawkins &
Geoffery Rubin Sol Sen Crime & Juvenile Delinquency (New York) 1958
P.K. Penology Old & New, 1943
Selhna M.J. Society & The Criminal (N.M. Tripathi), 1989
Shah Jyotsna H. Dr. Studies in Criminology : Probation Services in
India (N.M. Tripathi), 1973
Siegel Larry, J. Criminology, 2000.
The Principles of Criminology (10th Ed.), 1978 Police &
Sutherland & Cressey
Law A Sociological Analysis (Gulshan Pub. Srinagar)
Syed M. Afzal Qadri
1989
Textbook of Criminology
(1st Indian Reprint 2001)
Universal Law
Publishing Co.
Outlines of Criminal Law
(17th Ed.)
Select Bibliography
Tappen Paul W. :
Tierney John :
Urry John :
Vedder & Key :

Void G.B. :
Williams Franklin, P. :
Young Jock & Mathews :
Crime, Justice &
Correction, 1960
Criminology : Theory
and Context, 1996 Crime
and Punishment in
Contemporary Culture
(Routledge London,
2004)
Penology—Realistic
Approach
Theoretical Criminology
(Oxford University Press)
1997
Criminological Theory,
1999.
Rethinking Criminology
(1992) London.
List of Abbreviations
AC ... Appellate Court
AIR ... All India Reporter.

AIR SCW ... All India Reporter Supreme Court Weekly
All Cr C ... Allahabad Criminal Cases.
All Cr R ... Allahabad Criminal Rulings.
All ER ... All England Reporter
All LJ ... Allahabad Law Journal.
All LR ... Allahabad Law Reports.
An LT ... Andhra Law Times.
An LT (Cri) ... Aiidhra Law Times (Criminal)
An Pra LJ ... Andhra Pradesh Law Journal.
An WR ... Andhra Weekly Reports.
Assam LR ... Assam Law Reports.
AWC ... Allahabad Weekly Cases.
BBCJ ... Bihar Bar Council Journal.
Bih LJ ... Bihar Law Judgments.
Bih LJR ... Bihar Law Journal Reports.
Bom CR ... Bombay Cases Reporter.
Bom LR ... Bombay Law Reporter.
C.Cr.J. ... Current Criminal Judgments.
CHN ... Calcutta High Court Notes.
Cal WN ... Calcutta Weekly Notes.
CC Cases ... Chandigarh Criminal Cases.
CLR ... Chandigarh Law Reporter.
Cr AR (SC) ... Criminal Appeals Reporter (Supreme Court).
Cri LJ ... Criminal Law Journal.
Cr LR (SC & MP) ... Criminal Law Reporter (Supreme Court and
Madhya Pradesh).
Cr LR (Guj) ... Criminal Law Reporter (Gujarat).
Cr LR (Mah) ... Criminal Law Reporter (Maharashtra).
Cr LR (Raj) ... Criminal Law Reporter (Rajasthan).
Cr LT ... Criminal Law Times.
Crimes ... Crimes.
Cr LC ... Criminal Law Cases.
( xi )
xii Criminology and Penology
Cur LJ ... Current Law Journal.

Cut LR (Cr) ... Cuttack Law Reports (Criminal).
Cut LT ... Cuttack Law Times.
Cut WR ... Cuttack Weekly Reporter.
Del LT ... Delhi Law Times.
East Cr C ... Eastern Criminal Cases.
ER ... England Reports.
ILR ... Indian Law Reports.
ITR ... Income Tax Reporter.
Jab LJ ... Jabalpur Law Journal.
JCC ... Journal of Criminal Cases (Del).
JT (SC) ... Judgments Today (Supreme Court).
Kant LC ... Karnataka Law Chronicle.
Kar LJ ... Karnataka Law Journal.
Kash LJ ... Kashmir Law Journal.
Ker LJ ... Kerala Law Journal.
Ker LT ... Kerala Law Times.
L & SL ... Local & Special Laws
LW (Cr) ... Law Weekly (Criminal).
MP LJ ... Madhya Pradesh Law Journal.
MLJ ... Madras Law Journal.
MLJ (Cr.) ... Madras Law Journal (Criminal).
QBD ... Queen's Bench Division.
Raj Cr C ... Rajasthan Criminal Cases.
RLR ... Rajdhani Law Reporter.
Recent Cr R ... Recent Criminal Reports.
SC ... Supreme Court.
SCALE ... Supreme Court Almanac.
see ... Supreme Court Cases.
see (Cr) ... Supreme Court Cases (Criminal).
SCC (Supp) ... Supreme Court Cases (Supplement).
SC Cr R ... Supreme Court Criminal Rulings.
SCJ ... Supreme Court Journal.
SCR ... Supreme Court Reports.
SCWR ... Supreme Court Weekly Reporter.
US ... United States
WLC ... Western Law Cases (Raj).
WLN. ... Weekly Law Notes.
WLR ... Weekly Law Reports.
Contents
Page
Foreword ... iii
Preface to the Fifteenth Edition ... v
Preface to the First Edition ... vi
Select Bibliography ... vii
List of Abbreviations ... xi
Contents ... xiii
Table of Cases ... xxix
PART I
CRIMINOLOGY
Chapter I The Concept of Crime
Early concept of crime ... 3
Eighteenth And Nineteenth Century ... 5
Twentieth Century ... 6
Crime defined ... 7
Crime without a Victim ... 9
Classification of Crimes . ... 9
Classification of offences under I.P.C. ... 10
Characteristics of Crime — 10
Sin and Crime Distinguished
Crime and Morality
Conclusion —
Chapter II Nature and Scope of Criminology
Criminology—Its Nature and Scope — 17
Inter-Relation between Criminology, Penology and Criminal Law ... 20
Criminal Law—Its Nature and Elements - 21
Perception of Criminal Law in Ancient India ••• 21
Fundamentals of Modem Criminal Law — 22
The purpose of Criminal Law ••• 25
The Concept of Crime ••• 25
Intention and motive distinguished — 26
Criminology—Its importance — 26
Indian Concept of Criminology ••• 28
Radical Criminology 28
Possibility of Science of Criminology ••• 29
Neo-Criminology
Penology—Its future
Approach to Penology
( xiii )
14 Criminology and Penology
Caution against Excessive Reformation

Chapter III The Schools of Criminology
1. Pre-classical School of Criminology
2. The Classical School
3. Neo-classical School
4. Positive School
Cesare Lombroso (1836-1909)
Enrico Ferri (1856-1928)
Raffaele Garofalo (1852-1934)
Gabriel Tarde (1843-94)
An appraisal of Positive School of Criminology
5. Clinical School of Criminology
6. Sociological School of Criminology The Modem
Criminology Modem Labelling Theory of Crime
Chapter IV Causation of Crime
Heredity and Crime
Mental Disorder and Criminality
M' Naghten's Rule of Criminal Responsibility
Insanity under Indian Criminal Law
Bio-physical factors and criminality
Intelligence Testing and Crime
American View on Personality Aspect of Criminals
Hooton's View
Sheldon's Views on Criminality Donald Taft
Freud's theory of Criminal Behaviour Glueck's
Psychiatric Theory of Crime Psychological concept of
crime Aristotle's Four Laws of Association Conflict
Theory of Crime
Gender-based Explanations of Female Criminality
Group Therapy
Chapter V Sociological Theory of Crime
Sociological Theory of Criminal Behaviour Theory of
Differential Association Multiple Factor Approach to
Crime Causation
(1) Mobility
(2) Culture Conflicts
(3) Family Background ••• 78
(4) Political Ideology ••• 80
(5) Religion and Crime ••• 81
(6) Economic Conditions ... 82
(7) Ecology of Crime ••• 83
(8) Influence of Media ... 84
Crimes in Urban and Rural Areas ... 85
Neighbourhood influences ... 86
Conclusion ... 86
Chapter VI Tentative Theory of Crime
Criminality as a part of social behaviour ... 89
Cultural Transmission Theory ... 91
Contents 15
Page
Socio-cultural patterns and Criminal behaviour ... 91

Tribals Norms and Criminality ... 94
Social Disorganisation Theory of Crime ... 95
Chapter VII Crime and Economic Conditions
Relationship between economic structure and crimes ... 100
Marxists Theory ' ... 101
Bonger's Economic Theory of Criminality ... 102
Criticism of Bonger's Theory ... 104
Limitations of economic explanation of crime ... 108
Chapter VIII Organised Crimes
Definition ... Ill
(1) Organised predatory crime ... 112
(2) Crime Syndicate ... 114
(3) Criminal Racket ... 114
(4) Other Criminal Rackets ... 116
(5) Political Graft ... 117
(6) Main characteristics of organised criminals ... 118
Collective Violence ... 120
Definition of Collective Violence ... 121
Preventive Measures to reduce the potential for
collective violence ... 121
Theories of Collective Violence ... 121
Terrorism & Related Organised International Crimes _ ... 122
Chapter IX White Collar Crime
Historical Background ... 125
Definition of White Collar Crime ... 126
Criticism of Sutherland's views on White Collar Crime ... 128
Contributing Factors ... 128
White Collar Crime in India ... 130
xvi Criminology and Penology
Page
Hoarding, Black Marketing and Adulteration ... 131

Tax-evasion ... 131
White Collar Crime in certain Professions ... 132
Medical Profession ... 133
Engineering ... 133
Legal Profession ... 133
Educational Institutions ... 134
White collar crime in business deals ... 135
Fake Employment Placement Rackets : ... 136
White collar crime distinguished from conventional crime ... 136
Remedial Measures ... 138
Chapter X Cyber
Crimes
Cyber Crime—Definition ... 143
Reasons for Cyber Crimes ... 144
Viruses ... 144
Virus Hoax ... 145
1. Computer as a target of the crime ... 145
2. Computer as an Instrument Facilitating Crime ... 145
Traditional Classification ... 146
General Classification ... 146
Hacking ... 147
E-mail spoofing ... 147
Computer Vandalism ... 147
Cyber Terrorism ... 147
Cyber Pornography ... 149
Cyber Defamation ... 149
E-mail Frauds (Spam) ... 149
Money Laundering ... 150
Data diddling ... 150
Intellectual Property Crimes ... 150
Preventive Legal Measures Against Cyber Crime ... 152
Information Technology Act, 2000 ... 153
Salient Features of the Information Technology Act, 2000 ... 154
Offences under the Act ... 155
Cyber Crimes/Cases Registered and Persons Arrested under
Information Technology Act during 2004-2009 ... 160
Investigation of Cyber Crimes ... 160
Adjudicating Officer ... 161
Cyber Appellate Tribunal ... 161
International Perspective of Cyber Law ... 162
United States Cyber Law ... 162
Australian Cyber Law ... 163
Japanese Cyber Law ... 163
U.K. Computer Act ... 163
French Computer Crime Law ... 164
Chinese Cyber Law ... 164
Mauritius Cyber Law ... 164
Sri Lanka's Cyber Crime Law ... 164
Pakistan ... 165
Contents xvii
Page
Bangladesh Cyber Law ... 165

Chapter XI Sexual Offences
Indian Perspective > ... 167
Causes of Sex Delinquency ... 168
Remedial Measures ... 172
Incest ... 177
Homosexuals ... 178
Contraceptives—A Boon to Sex Offenders ... 178
Law Relating to Abortion in India ... 179
Medical Termination of Pregnancy Act, 1971 ... 179
The Pre-natal Diagnostic Techniques Act, 1994 ... 180
The Problem of Prostitution ... 180
The Immoral Traffic (Prevention) Act, 1956 ... 182
International Dimensions of Human Trafficking ... 183
Rescue Homes For Destitute Women ... 184
Sex Ethics ... 186
Women and Domestic Violence ... 186
Torture and Harassment of Women ... 187
The Protection of Women From Domestic Violence Act, 2005 ... 189
Counselling ... 191
Socio-Legal Perspective of PWDVA Act ... 191
Sexual Harassment of Women at Work Places ... 192
Dowry And Dowry Deaths ... 193
Protection of Women Against Possible Sex Harassment by
Police Personnel ... 194
Amendments of Law Relating to Rape ... 195
Law Relating to Rape Needs to redefine Gender identities ... 196
Gang Rape ... 200
Offenders of Rape Case Need to be Sternly Punished ... 201
Marital Rape ... 202
Sexual Abuse of Children ... 203
Child's Right Act, 2006 ... 203
Concluding observations ... 204
Chapter XII Alcoholism, Drug Addiction and Crime
Main Causes of Drug Addiction ... 209
International Perspective of the Problem. ... 211
Illicit Drug Trafficking ... 213
On-Line Drug Trafficking—A Menace ... 213
Classification of Drugs Alcoholism
Drug-Addicts and Crime Indian Law
Measures to Control Alcoholism & Drug Addiction Enforcement
Agencies Remedial Measures
Drunkenness and Criminal Responsibility
Chapter XIII Crime Statistics
Reliability of Crime Statistics Sources of
Criminal Statistics National Crime Records
Bureau (NCRB)
Crime Statistics in India
TABLE—Trend of Violent Crimes, Property Crimes and Economic
xviii Criminology and Penology
Crimes (2001-2009)
TABLE—Showing Trend of some Major Crime Heads Over the Years
1953- 2009 The Pattern of IPC Crimes
TABLE—Incidence & Rate of Total Cognizable Crimes under Indian Penal
Code (IPC) and Special and Local Laws (SLL) 1998-2009.
Crime Statistics of Narcotic Drug Seizures
TABLE—Showing Seizures of Narcotics and Drugs (No. of
Cases) During 2006-2009 Conclusion
PART II
PENOLOGY
Chapter XIV Theories of Punishment
Concept of Punishment
Justification for Punishment
Theories of Punishment
Deterrent Theory
Retributive Theory
Preventive Theory
Reformative Theory
Efficacy of Punishment
Early Stages
Medieval Period
Rationalisation of Punishment
Modem or New Penology
Indian Perspective
Essentials of an Ideal Penal System
Contents xix
Penal Policy in India Page
258
Concluding Observation 260
Chapter XV
Forms of Punishment and Judicial Sentencing
Dharmashastra Interpretation of Punishment 262
Punishment'—Defined 263
Constraints in the use of punishment 263
Forms of Punishment. 264
Flogging 264
Mutilation 264
Branding 265
Stoning 265
Pillory 265
Amercement 266
Fines 266
Forfeiture of Property 267
Collateral Sanctions (or Penalties) 268
Security Bond 268
Ostracism 268
Exile 269
Banishment 269
Solitary Confinement 270
Detention 271
House Arrest 272
Custodial Sentence 272
Imprisonment for Life 272
Life imprisonment as an alternative punishment to Death sentence ... 274
Imprisonment 275
Capital punishment 276
Judicial Sentencing 277
Chapter XVI Capital Punishment
Retributive Effect of Death Penalty 284

Deterrent Effect of Capital Punishment 285
Modes of Execution 285
Capital Punishment in Ancient Rome and Greece 287
English Law on Death Penalty 287
Ceylon 288
The Italian view 288
France 289
Death Sentence in U.S.A. 289
Global Perspective of Death Sentence 290
Safeguards against possibility of Miscarriage of justice due
to irrevocability of Capital Punishment 291
Arguments 'for' death penalty (Retentionist's view) 292
Arguments 'against' death sentence (Abolitionist's view) ... 292
xviii Criminology and Penology
Page
Capital punishment in India ... 293
Retention of Capital Punishment—How far justified ... 293
Retention preferred to Abolition ... 296
Law Commission's Report on Capital Punishment ... 297
Suicide as an offence ... 298
Should Euthanasia be legalised ... 299
Indian Position ... 300
Offences punishable with death sentence under IPC. ... 302
Indian Law on Death Penalty ... 305
Judicial Trend ... 307
Delay in execution of Death Sentence ... 333
Mode of Execution of Death Sentence ... 334
An Overall view. ... 334
Conclusion ... 336
Chapter XVII The Police System
Origin of Police ... 338
Development of Police Organisation ... 339
America ... 340
Police Force in India. ... 340
The Police set-up ... 344
Police Organisation Under the State Government ... 345
Police Organisation under Central Government ... 34t>
Police Commissioners ... 347
The Women Police ... 347
Home Guard Police ... 349
Preparatory Police Training Programme ... 349
The Problems of Police ... 350
Principles of Policing ... 351
The Role of Police ... 352
Legal Functions of Police ... 354
(1) Patrolling and Surveillance ... 355
(2) Preventive Functions ... 355
(3) Conditional Release of Accused on Bond etc. ... 356
(4) Investigation by Police 357
(5) Interrogation of Offenders & Suspects ... 358
(6) Search and Seizure ... 359
(7) Maintain Inquest Register ... 360
(8) To Assist the Prosecutor ... 360
(9) Identification etc. 361
(10) Control of Juvenile Delinquency 361
(11) General Welfare Functions ... 361
Duties of Civil Police ••• 362
Rural Policing in India ••• 362
Contents xxi
Page
Police Welfare Centres ... 363
The National Police Commission ... 363
Police Custodial Torture (Human Rights Violation) ... 368
Supreme Court's Directives for avoidance of Custodial Crimes ... 373
Police-Public Co-operation ... 375
NHRC Guidelines on Police Public Relations ... 376
Police Advisory Committees ... 377
Judiciary's Attitude Towards Police ... 377
Citizen's Voluntary Force ... 378
Modernisation of Police ... 379
Malimath Committee Report on Police Functioning ... 380
The Police Sniffer Dogs ... 380
INTERPOL ... 380
International Perspective of the Police ... 381
Chapter XVIII The Criminal Law Courts
Adversarial and Inquisitorial Systems ... 384
Court's Role in Dispensation of Criminal Justice ... 384
The British Criminal Law Courts ... 385
Trial by Jury ... 387
The American Criminal Law Courts ... 388
Plea Bargaining & Plea of NOLO Contendere ... 389
Prosecuting Attorney (Prosecutor) ... 389
Video-Conferencing in American Courts ... 390
Criminal Law Courts in Ancient. India ... 390
Criminal Court's of Medieval Period ... 391
Criminal Courts of British India ... 392
Criminal Court of India after Independence ... 392
The Nyaya Panchayats ... 395
Lok Adalats ... 396
The Legal Services Authorities Act, 1987 ... 397
SC/ST (Prevention of Atrocities) Act, 1989 ... 398
Law Relating to Bail ... 398
Role of Investigating Agencies ... 400
The Court of Criminal Trial ... 401
Trial Proceedings ... 402
The object of Criminal Trials ... 403
The Code of Criminal Procedure, 1973 ... 404
Code of Criminal Procedure (Amendment) Act, 2005 ... 405
Functions of Criminal Law Court ... 405
Deficiencies in Working of the Criminal Law Courts ... 405
Control over Criminal Law Courts ... 409
Fast Track Courts ... 413
Statement showing the state-wise number of Fast Track Courts
in the country as on 31st March, 2007 ... 414
Plea for Setting up a Judicial Ombudsman ... 415
Need for International Criminal Court ... 415
Concluding Observation ... 416
Chapter XIX The Prison Administration
The American Prison System ... 418
Penn's Charter of 1862 ... 418
The Pennsylvanian System ... 419
xxii Criminology and Penology
Page
The Auburn System ... 419
The Elmira Reformatory ... 420
The Illionis Prison, 1933 ... 421
The British Prison System ... 421
The Begining of Prison-Reforms in U.K. ... 422
Transportation of British Prisoners to Colonies in America
and Australia ... 422
The Standard Minimum Rules for Treatment of Prisoners ... 423
Contribution of Sir Lionel Fox to Prison Reforms in UK ... 424
The Modem British Prison System ... 425
The Russian Prisons ... 425
International Penal and Penitentiary Commission and
Prison Reforms ... 426
Prisons in Ancient India ... 428
Prisons in British India ... 428
Indian Jail Reforms Committee 1919-20 ... 429
Indian Prison onwards 1950 ... 430
Reformative Measures for Prison Inmates ... 430
Plea for setting up Prison Panel ... 431
Role of Prisons in Modem Penology ... 432
The Problem of Overcrowding in Prisons ... 433
The Problem of Prison Discipline ... 433
The Problem of Prisoners' Health ... 434
The Problem of Criminality in Prisons ... 435
Self-Government in Prisons ... 436
Prison Labour ... 437
The Prison Community ... 438
Classification of Prisoners ... 438
Overall Statistical View of Indian Prisons ... 440
Jails ... 440
Total Capacity of Jails in India ... 440
Total number of Jail Inmates ... 440 Jail
Reform Committee's (1980-83) View on Classification
of Prisoners ... 441
Prison Rules ... 441
Rights of Prisoners ... 442
The Problem of Undertrial Prisoners ... 443
Contents xxiii
Prison Authorities to inform undertrials about their legal rights Page
446
Bar Against Hand-cuffing 447
Solitary Confinement 447
Prison Reforms 448
Custodial Torture in Prisons 455
Judicial Mandates Regarding Prisoners & Detenues 459
Judicial Directives for Prison Administration 460
Rehabilitation of Prisoners 463
After-care of released prisoners 464
The Repatriation of Prisoners Act, 2003 464
Comcluding Remarks 465
Chapter XX Open Prisons
Definition of Open Prison 467

Origin of Open Prisons 467
Open Prisons in U.S.A. 468
The Californian Prison Farms 468
The Philosophy underlying Open Prisons in USA 469
International Perspective 470
Open Prison Institutions in European Countries 471
Netherlands (Holland) 471
France 471
Norway and Sweden 472
Educative Reformative Work in Hungary 472
Belgium 472
Australia 472
Thailand 472
Middle-East Countries 473
Open Air Camps in India 473
Origin and Development 474
Main Characteristics of Open Prisons 475
Advantages of open prisons 476
Open Air Prisons in Different States of India 476
Early Sampumanand Camps in U.P. 479
1. Sampumanand Camp, Chakiya 479
2. Sampumanand Camp, Naugarh 479
3. Sampumanand Camp, Shahgarh 480
4. The Saraya Ghat Camp (Varanasi) 480
Sampumanand Agricultural-cum-Industrial Camp, Sitarganj
(District, Nainital), Uttaranchal 480
Open Air Camp in India at Durgapur 482
Open Prisons in Maharashtra and Andhra Pradesh 482
Nav Jiwan Shivir at Mungaoli (Madhya Pradesh) 483
Nav Jiwan Shivir at Lakhimpur (M.P.) 484
Open Prison, Hoshangabad (MP) 484
Critical Appreciation ... 484
Chapter XXI Executive Clemency, Good Time Laws and Indeterminate Sentence
Pardoning Power ... 486
xxiv Criminology and Penology
Page
Scope of Judicial Review of Pardon Power ... 493
Commutation of Sentence ... 494
Amnesty ... 494
"Good Time" Laws ... 494
"Good time" Laws in India ... 495
Indeterminate Sentence ... 495
Origin of Indeterminate Sentence ... 496
Critical Appreciation of Indeterminate Sentence ... 499
Merits ... 499
Demerits ... 500
Suspended Sentence ... 501
Chapter XXII Parole
The Concept of Parole ... 504
Definition of Parole ... 504
Parole and Indeterminate Sentence—Distinguished ... 505
Parole and Probation Compared ... 506
Parole Distinguished from Furlough 507
Origin of Parole in U.S.A. ... 508
The Educative Reformative Scheme in Hungary ... 508
The British Parole System ... 509
Parole In India ... 510
Structural set up of Parole Boards and their Functions ... 511
Conditions of Parole ... 511
Judicial Trend ... 513
Parole Violation ... 517
Essentials of an Ideal Parole System ... 518
The Object of Parole ... 519
Chapter XXIII Probation of Offenders
Concept and Definition of Probation ... 521
Probation is a Conditional Suspension of Sentence ... 523
Object of Probation ... 524
Probation and Suspended Sentence—Distinguished ... 524
Origin of the Probation System ... 525
Probation in U.S.A. ... 525
Probation in U.K. ... 526
Probation in European Countries ... 527
Probation in Sweden ... 528
Probation System in Japan ... 528
Page
Probation in India 528
Historical Perspective of Probation Law in India ... 529
Legislative History of Probation law in India ... 530
The Probation of Offenders Act, 1958 ... 531
Procedure — 532
Other Enactments —533 Scope
of Probation under Section 360 of Cr.P.C. and Probation
of Offenders Act compared ... 534
Judicial Trend 537
Removal of Disqualification attached to Conviction ... 547
Applicability of Probation Law in Public Welfare Offences ... 551
Contents xxv
No Probation for Convicted Corrupt Persons ... 556

Age of the Offender ... 557
Pre-sentence Report ... 559
The Place of Probation in the Penal Policy ... 559
Major Functions of the Probation Officer ... 561
Critical Appreciation Probation as a Correctional Measure ... 563
Some Useful Suggestions ... 565
Public Participation in Probation Service ... 568
Chapter XXIV Juvenile Delinquency
Movement for Juvenile Justice ... 571
Juvenile Delinquency—What it means ? ... 572
Causes of Juvenile Delinquency ... 574
Justifications which the Juveniles may advance against their
Delinquent act ... 576
Juvenile Justice in U.K. ... 577
Juvenile Justice in U.S.A. ... 578
Juvenile Delinquency in other Countries ... 579
Norway ■■■ 580
Turkey ... 580
International Concern for Juvenile Justice ... 580
Juvenile Justice in India ... 581
Historical Conspectus of Juvenile Justice Law in India ... 583
The Juvenile Justice Act, 1986 (repealed by J.J. Act, 2000) ... 584
The Juvenile Justice (Care and Protection of Children) Act, 2000 ... 584
(1) The Basis for deciding wi.ether accused is a juvenile ... 585
(2) Relevant date as to determination of age of the Juvenile :
Whether it should be the date on which offence is committed or
the date on which the juvenile is brought
before the Court for trial. ... 587
Release of Juvenile on Probation ... 594
Orders which the Juvenile Justice Board cannot make: ... 594
Removal of Disqualification attaching to Conviction of Juvenile ... 595
Pending cases—Disposal of ... 595
Penalties under the JJ Act, 2000 ... 597
Children in need of Care & Protection ... 597
Social Reintegration of Juveniles in Conflict with Law and
Neglected Children ... 593
Miscellaneous Provisions Concerning Juvenile Justice
Administration ... 599
Juvenile Justice (Care and Protection of Children) Amendment
Act, 2006 ... 603
Special Juvenile Police Units ... 604
Trial of Juveniles under Cr.P.C. and the Repealed Juvenile
Justice Act, 1986 ... 605
Grant of Bail to Juvenile ...605 Trial
of Juveniles where there is no Juvenile Court
(Now Juvenile Justice Board) ... 606
Special Procedure of the Juvenile Justice Board ... 607
An Appraisal of the Juvenile Justice System in India ... 607
Table showing Incidence and Rate of Juvenile Delinquency
under IPC (1999-2009) ... 609
xxvi Criminology and Penology
Page
Juvenile Delinquency under Different Crime Heads During
the Year 2009 ... 610
Treatment of Juvenile in Conflict with Law and Children in
Need of Care & Protection ... 611
Observation Homes ... 611
Special Homes ... 611
Certified Schools ... 611
Separate Schools & Hostels for the Children of Prostitutes ... 612
Borstals 613
The English Borstal Institutions 613
Borstal system in India ... 614
Clinical Service can Serve Best to Prevent Juvenile Delinquency ... 615
Chapter XXV Recidivism
Who is a Recidivist ? ... 617
Causes of Recidivism ... 6yj
Recidivism—Psychological Perspective ... 619
Recidivistic Offenders ... 621
Measures to combat Recidivism ... 621
Recidivism in India ... 624
Table Showing Recidivists Convicted During 2001-2009 ... 624
Supreme Court on Recidivism ... 624
Prevention of Recidivism ... 625
Chapter XXVI Crime Prevention
The Present Scenario ... 629
Distinction between Crime Prevention and Treatment ... 633
' Prevention of Juvenile Crimes ... 633
Page
Suggested changes in Criminal Law & Procedure ... 636
Problems involved in Crime Prevention ... 640
International Perspective of Crime Prevention ... 645
United Nations Congresses on the Prevention of Crime and the
Treatment of Offenders ... 645
The First Congress 1955 (Geneva) ... 645
The Second Congress 1960 (London) ... 646
The Third Congress 1965 (Stockholm) ... 647
The Fourth Congress 1970 (Kyoto) ... 647
The Fifth Congress 1975 (Geneva) ... 648
The Sixth Congress 1980 (Caracas) ... 649
The Seventh Congress, 1985 (Milan) ... 650
The Eighth Congress 1990 (Havana) ... 651
The Ninth Congress 1995 (Cairo) ... 652
The Tenth Congress 2000 (Vienna) ... 654
The Eleventh Congress, 2005 (Bangkok, Thailand) ...656 The
Twelfth UN Congress on Crime Prevention and
Criminal Justice (Salvador, Brazil) 2010 ... 657
Concluding Observations ... 658
PART III VICTIMOLOGY

CHAPTER XVII Victimology
Victimology—Definition & Meaning ... 663
Historical Perspective ... 663
Contents xxvii
Theories of Victimology ... 664

'Penal Couple' concept ... 665
Victims of Crime ... 665
Providing Redress to Victims ... 667
Victims ... 669
Impact of Victimization ... 670
Psychological impact ... 671
Secondary Victimization From Criminal Justice & Society ... 672
Restorative Justice for Crime victims ... 673
Victim's Assistance Programme ... 673
Advisory Group ... 674
Type of Services ... 675
Safeguarding Victim's Rights through Legal Reforms ... 675
Care and Protection of Victims in other Countries ... 676
South Asian Society of Criminology & Victimology (SASCV) ... 677
Victims of Crime—Indian Position ... 678
Compensatory relief to victims ... 679
Compensatory Provisions in Cr.P.C. ... 679
Compensation under Probation of Offenders Act ... 680
Compensation to victim under Motor Vehicle Act ... 680
Compensatory Relief to Victims—Judicial Trend ... 680
Justice Malimath Committee Recommendation on Victims of Crime... 683
APPENDICES
I. The Unlawful Activities (Prevention) Act, 1967 ... 685
II. The Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 ... 705
III. The Immoral Traffic (Prevention) Act, 1956 ... 714
IV. The Dowry Prohibition Act, 1961 ... 734
V. The Probation of Offenders Act, 1958 ... 740
VI. The Juvenile Justice (Care and Protection of Children)
Act, 2000 747
VII. The Protectin of Women from Domestic Violence
Act, 2005 772 IX. The Protection of Women from Domestic Violence
Rules, 2006 792
Index 323
Table of Cases
A Patnaik v. State of A.P., 450
A. R. Antuley v. Union of India, 93 Biddle v. Perevich, 489 Birendra Kumar Rai v.
Abdul Mannan and others v. State of West Union of India, 218 Bishnu Dev Shaw v. State of
Bengal, 606 Abdul Qayum v. State of Bihar, 540 West Bengal, 295, 308, 536 Bishnu Prasad Sinha
Abu Ram v. Mukna and others, 282 Adamji v. State of Assam, 329
Umar Dalai v. State, 267 Adu Ram v. Mukhna & Bodhisattva Gautam v. Miss Subhra
others, 328, 660 Ajay Pratap Singh v. State of Chakraborty, 197, 681 Brij Lai u. Prem Chand,
Madhya Pradesh, 585 Allauddin Mian v. State of 632
Bihar, 306, 337 Amit alias Ammu u. State of
Maharashtra, 318
c
C. Muniappan & others v. State of Tamil Nadu,
Amrit Singh v. State of Punjab, 327 Anil Kumar
256, 332, 491
v. State of M.P., 435 Ankush Maruti Shinde v.
C. S. Bansal u. Delhi Administration, 137
State of Maharashtra, 261, 502 Apparel Export
CEHAT and others u. Union of India, 180
Council v. A.K Chopra,
Chalappan’s case, 550 Chananjoy Chatteriee alias
192
Dhana v. State of West Bengal, 318 Chawla v.
Amit Das v. State of Bihar, 587, 588 Arvind
State of Haryana, 307 Chhanni v. State of Uttar
Mohan v. Anil Kumar Biswas, 553 Arvind Yadav
Pradesh, 534 Common Cause, (A Registered
v. Ramesh Kumar and others, 517 Asgar Hussain
Society) v. Union of India, 90, 260, 444, 445
v. State of U.P., 278 Ashok Kumar v. State of
Delhi Administration, 322 Ashrafi Lai & Sons v.
State of U.P., 314 Attorney-General for Northern
Ireland v.
Gallaghar, 216 Avtar Singh
v. Emperor, 305
B
B. B. Das Gupta v. State of West Bengal,
599
Babloo Pasi v. State of Jharkhand, 590 Bablu alias
Mubarak Hussain u. State of Rajasthan, 224, 326
Babulal Das v. State of West Bengal, 514 Bachan
Singh v. State of Punjab, 256, 293,
294, 304, 310, 311, 320, 637
Baishanta v. State of Gujarat, 182 Bakshi Ram’s
case, 551 Balu alias Bakthavatchalu v. State of
Tamil Nadu, 589 Bandhua Mukti Morcha v.
Union of India, 107
Bavadas Bowri v. State of Assam, 107 Bhagwada
Boghinbhai Hirji v. State of Gujarat, 195,
Conwey v. Rinomer, 385
411 Bhikhabhai Devshi v. State of Gujarat
and others, 275, 507, 519 Bhim Singh v. State Cullen v. Rogers, 527 ( xxix )
of J. & K, 371, 378, 393, 411, 669, 681 Bhola
Bhagat v. State of Bihar, 587 Bhuvan Mohan
D Gaurav Jain v. Union of India, 117, 185, 612

D.B.M. Patnaik v. State of A.P., 455 D.K. Basu v. Gauri Shanker Sharma v. State of U.P., 636
Geneta Vijayavardhan Rao & another v.
State of West Bengal, 373, 374, 393, 669, 670, 682
State of Andhra Pradesh, 315, 491 Girja
D. K. Rajendran & others v. State of Tamil
Nath v. State, 23 Gopal Reddy v. State of Andhra
Nadu, 332
Pradesh,
D. P.P. v. Smith, 23
193
Daiya Moshya Bhil v. State of Maharashtra, 290
Gopinath Ghosh v. State of West Begal,
Dalbir Singh v. State of Punjab, 307 Dalbir Singh
593
v. State of Uttar Pradesh, 310 Gouri Shankar Sharma v. State of U.P., 370
Dalip Singh v. State of Haryana, 370 Daniel Hailey Govindaswami v. State of Tamil Nadu, 326 Gregg
Walcott v. State, 137 Daulat Ram v. State of v. George, 289
Haryana, 546 Daya Nand v. State of Haryana, 589, Gudikanti Narsimhulu v. Public Prosecutor, A.P.
600 Daya Singh v. Union of India, 333 Delhi High Court, 445 Gulzar v. State of Madhya
Administration v. Om Prakash, 552 Delhi Pradesh, 536 Gura Singh v. State of Rajasthan, 307
Administration v. Ram Singh, 183 Delhi Gurcharan Singh v. Delhi Administration, 399
Democratic Working Women Forum v. Union of Gurdeep Bagga v. Delhi Administration, 515
India, 198, 682 Dennis Councle Me G. Dautha v. Gurmeet Singh u. State of U.P., 316 Guru Bachan
State of California, 283 Deo Narain v. State of Singh v. State of Punjab,
U.P., 23 Deoki Nandan Dayma v. State of Uttar 194
Pradesh, 585 Devki (Smt.) v. State of Haryana, Guru Sevak Singh v. State of Punjab, 444 Guru
541 Dharambir v. State (NCT Delhi & Another), Swamy v. State of Tamil Nadu, 307, 310
596 Dharamvir v. State of Uttar Pradesh, 478,
Gyan Kaur v. State of Punjab, 298, 299 li
513
Dhruvendra Singh v. State of Rajasthan, Hansa v. State of Punjab, 542 Harbans Singh u.
586 State of U.P., 460, 490 Hari Chand v. Director,
Dina v. State of U.P., 312, 334 Director of Public School Education,
Prosecutions v. 595
Majewski, 223 Divisional Personal Officer
Southern Rly.
v. T.H. Challappan, 548 Duncan v. Carumell
Laird and Co., 385 Dunna Lai v. State of Utar
Pradesh, 551
E
Ediga Anamma v. State of Andhra Pradesh, 277,
307 Eerati Laxman v. State of Andhra Pradesh,
590 Emperor v. Dukhari, 334 Emperor v. Harnam
Das & another, 172 Epuru Sudhakar v. State of
Andhra Pradesh, 494
Eston Baker v. Queen, 288 Ex-Capt. P.S. Gill v.
Chandigarh Administration, 515 Eyre v.
Shaftesbury, 571
F
Florida State v. B.J.F., 200 Francis Coralie Mullin
v. Union Territory Delhi, 449, 460 Furman v. State
of Georgia, 289, 309
G
Ganesh v. Mithalal, 600
Gault, In re, 607
Table of Cases xxxi
Hari Ram v. State of Rajasthan & Another, 588, Kishore Singh v. State of Rajasthan, 370, 459,
600 Hari Singh v. State of U.R, 550 Harihar Singh 462
v. State of U.R, 308 Harold Hamreay & Allen Kishore Singh Ravinder Dev v. State of
Osland Norvegian Nationals, In re, 602 Harsh Rajasthan, 271, 448 Kishori v. State of Delhi, 316
Sawhney v. Union Territory, Chandigarh, 399 Kodali Puranchandra Rao v. Police Prosecutor,
Hava Singh v. State of Haryana, 593, 614 Andhra Pradesh, 360 Krishan v. State of
Hicklin’s case, 172 Haryana, 322 Krishan Lai v. State of Delhi, 513,
Hiralal Mallick v. State of Bihar, 460, 513 Holmes, 624 Krishna Bhagwan v. State of Bihar, 587, 592
In re, 607 Krishna Chandra v. Harbans Singh, 541 Ku.
Hussainara v. State of Bihar, 107, 444, 445 Anita v. Atal Behari, 586 Kuljeet Singh alias
Hussainara Khatoon v. State of Bihar, 399, 456 Ranga v. Union of India, 312, 489 Kuljit Singh v.
Lt. Governor, Delhi, 487 Kulwinder Singh v. State
I of Punjab, 327 Kundan Bala v. State of A.P., 194
Iqbal Singh v. I.G. Police, Delhi, 549 Ishwar Das Kunju Kunju Janardhanam v. State of Andhra
v. State of Punjab, 279, 553 Izaz Ahmad v. State of Pradesh, 256, 307
Madhya Pradesh, 585
L
J Lachma Devi v. State of Rajasthan, 286,
Jag Mohan Singh v. State of U.P., 310 Jagatguru 314
Srengeri Math v. State of Mysore, 599 Jagdev Laxman Naik v. State of Orissa, 327 Lekh Raj v.
Singh v. State of Punjab, 524 Jagmohan Singh v. State, 594
State of U.P., 293 Jai Gopal v. State, 536 Jai Lai v.
Delhi Administration, 56 Jai Narayan v. Delhi M
Municipality, 553 Jaipal Singh Tej Singh v. Ram M Naghten’s rule, 216
Avtar Devilal, 593 Jameel v. State of
Maharashtra, 595 Javed Ahmad Abdulhamid
Pawala v. State of Maharashtra, 312 Jawahar v.
State of West Bengal, 545 Jay Kumar v. State of
Madhya Pradesh, 325
Jethuram Sukhra Nagbanshi v. State, 224
Joginder Kumar v. State of U.P. and others, 371,
393 Joyannathan v. State, 108 Jugal Kishore
Prasad v. State of Bihar, 540
Jumman Khan v. State of U.P., 333 Jurek v.
Taxas, 289 Jwala Devi v. Bhoop Singh, 371 Jyoti
Prakash Rai v. State of Bihar, 589
K
K.M. Nanavati v. State of Maharashtra,
295, 489, 490 Kadra Pahadiya v. State of
Bihar, 447, 460 Kalyan Chandra Sarkar v.
Rajesh Ranjan alias Pappu Yadav, 445
Kamaroonissa v. State of Maharashtra, 539
Kamta Tiwari v. State of M.P., 314 Karam Singh
u. State of Punjab and another, 551 Karan Singh
and another v. State of Uttar Pradesh, 315 Kartik
Biswas v. Union of India, 273 Kehar Singh v.
Regional Employment Officer, Chandigarh, 548
Kehar Singh v. Union of India, 489 Kesar Singh
Guleria v. State of Himachal Pradesh, 515
Kesavananda Bharti v. State of Kerala, 411
M.H. Haskot v. State of Maharashtra, 139 Machi Singh v. State of Punjab, 193 Nathu alias Praas
E Singh and others v. State of Punjab, 311, 330 Ram v. State of Rajasthan, 463 Nathulal v. State
E Madan Gopal Kakkad v. Naval Dubey & another, of Madhya Pradesh, 22 Neelbati Behra v. State of
201 Madan Mohan Punchhi & Mrs. Sujata v. Orissa, 371, 393, 636, 669 Neera v. Life
Manohar, 295 Madhu Mehta v. Union of Insurance Corporation, 206 Niman Sha v. State of
India, 333 Madina v. State of Rajasthan, 393, 683 M.P., 57 Niranjan Singh v. Prabhakar Rajaram,
E Maharashtra v. Natwar Lai, 554 Mahendra Nath 370
E
Das v. State of Assam, 323 Nirmal Singh & another v. State of Haryanan, 317
D Mahesh v. State of M.P., 313, 660 Mahinder Pal Norott im Singh v. State of Punjab, 188
D Jolly v. State of Punjab, 23 Maneka Gandhi v.
Union of India, 412 Manindra Lai Das v.
E Oil case, In re, 552
Emperor, 224 Manohar Lai alias Munna &
D Olga Tellis & others v. Bombay Municipal
another v. Corporation, 298
E
State of Delhi, 316 Maragatham, In re, 107
D Maru Ram v. Union of India, 488, 493 Maruti
E Shripati Dubai v. State of Maharashtra, 298 P. Rathinam Nagbhusan Patnaik v. Union of
D Masarullah v. State of Tamil Nadu, 545, 546 India, 299 P.K. Tejani v. M. R. Dange, 279 P.V.
D Mathura Bai’s case, 369, 632 Maung Gyi v. Narasimha Rao y. State (CBI), 92, 135 Paras Ram
D Emperor, 223 Medha Kotwal Lele v. Union of u. State of Punjab, 56 Partington v. William, 23
India, 192 Meh Ram v. State, 56 Member alias Patrick Okeke v. State, 223 Payne v. Tfennessee,
Gudda v. State of Madhya Pradesh, 544 Michael 677
de Fraeities v. George Ramoutar Benny, 288
D Miliangos v. George Frank Textiles Ltd., 385
D
Mithu v. State of Punjab, 303, 313 Mohammad
D alias Bitiya v. State of Rajasthan, 543 Mohan Mali
& Another v. State of M.P.,
D 596
Mohd. Aziz v. State of Maharashtra, 531, 532
D Mohd. Chaman v. State of Delhi, 318 Mohd.
Dahaur Mia v. State of Bihar, 585 Mohd.
D Gaisuddin v. State of Andhra Pradesh, 254, 448,
451, 624 Mohd. Monir Alain v. State of Bihar, 543
D Mohd. Munna v. Union of India, 274 Molai &
another v. State of Madhya Pradesh, 325 Moti
D Ram v. State of Madhya Pradesh, 444
Munawar Harun Shah v. State of Maharashtra,
D 313 Municipal Corporation, Delhi v. Rattan Lai,
552
D Municipal Corporation, Delhi v. State of Delhi and
D another, 532 Munna v. State of U.p, 594
Munnuswamu v. State, 271 Munshi Singh Gautam
& others v. State of Madhya Pradesh, 374 Murari
E'
Thakur & Another v. State of Bihar, 591
Musa Khan v. State of Maharashtra, 524
Ei
N
E:
N. Bhargavan Pillai (dead) by L.R.’s and Another
E:
v. State of Kerala, 556 Nabin Chandra Das v.
E
State, 542 Naib Singh v. State, 272 Nainsukh
Mehtar v. Emperor, 271 Nanavati’s case, 307
Nandini Satpati v. P.L. Dhani, 370 Narottam
Table of Cases xxxiii
Pearson v. R., 224 Philip Grossman, Ex parte, Goa, 201

487 Phul Singh v. State of Haryana, 541 Piare Rajendra Prasad v. State of U.P., 306, 307, 308,
Dusadh v. Emperor, 307 Pickett v. Fesq, 527 309, 383, 451 Rsgesh Khaitan v. State of West
Piyarey Lai v. State, 554 Poonam Lata (Smt.) v. Bengal,
Wadhawan & others, 505, 514 Prabha Dutt 594
(Smt.) v. Union of India, 451, 460 Rajesh Kumar v. State of Rajasthan, 593
Prabhakar Pandurang v. State of Maharashtra, Rajinder’s case, 332 Rajni Kanta v. State of
455 Prabhunath Prasad v. State of Bihar, 586 Orissa, 356 Rajoo v. State of Rajasthan, 542
Prakash v. State of Madhya Pradesh, 543
Raju and others v. State of M.P., 544 Raju Singh
Prakash Singh & others v. Union of India, 365,
and others v. State of Madhya Pradesh, 541
367
Rakesh alias Duro Pravinbhai Thakar v.
Pratap Singh v. State of Jharkhand, 588,
State of Gujarat, 558 Ram Deo Chauhan
600
and another u. State of Assam, 325 Ram Naresh
Pratap Sngh v. State of Jharkhand, 586 Pratibha
Pandey v. State of M.P., 524 Ram Prakash v.
Rani v. Suraj Kumar, 411 Precious Oil
Corporation & Ors. (M/s.) v. State of Himachal Pradesh, 553 Ram Singh v.
State of Assam, 555 Prem Ballabh v. The State of Haryana, 532 Ram Suresh Singh v.
State, 539 Prem Sagar v. Dharambir & others, Prabhat Singh @ Chhotu Singh & Another, 590
323 Prem Shankar Shukla v. Delhi Ramamurthy v. State of Karnataka, 452, 457,
Administration, 356, 372, 447, 459 Priyadarshini 466, 473, 478, 479, 485, 515, 531, 532, 625
Ramdeo alias Rajnath Chouhan v. State of
Mattoo Rape case, 332 Procunier v. Martineg,
Assam, 587
443 Professor Yaspal and Another v. State of
Ramdeo Chouhan alias Rajnath v. Bani Kant Das
Chhatisgarh & others, 134 Profit v. Flourida, 289
& others, 600 Ramesh Dass v. Raghunath &
Provident Investment Company v. Income Tax
others, 535 Ramji Missar v. State of Bihar, 524,
Commissioner, 132 Public Prosecutor v. Nalan
537, 546, 557
Suryanarayanamurthy, 554 Puran Singh v. State Ramji Prasad v. Rattan Kumar Jaiswal and
of Punjab, 23 Pyarali K. Tajani v. M.R. Dange, another, 516 Ranga Billa Case, 277 Ranjit D.
554 Udeshi v. State of Maharashtra, 172
Ranjit Singh v. The State, 539 Ranjit Singh v.
Q Union Territory of Chandigarh, 313 Ratanlal v.
Queen v. Osram Sungra, 305
State of Punjab, 537 Rathinam Nagbhusan
R Patnaik v. Union of India, 298 Ravi Kant u. State,
R. v. Clarke, 55 R. v. Hardie, 216 R. v. M1 371 Ravji alias Ram Chandra v. State of
Naghten, 54 R. v. Prince, 24 R. v. R., 187 R. v. Rajasthan, 314 Reddy Samath Kumar v. State of
Tandi, 223 R. v. Tblsoh, 22 Andhra Pradesh, 330 Renuka Bai alias Rinku
R. Gandhi v. Union of India, 682 alias Ratan and another v. State of Maharashtra,
R. Mahalingam v. G. Padmavathi and another, 322 Rex v. Govinda, 295
532 R.D. Upadhayaya v. State of Andhra Ridiff Communications Ltd. v. Cyberboot and
Pradesh, 444, 449 R.K. Garg v. Union of India, Ramesh Nahata, 150 Rohtas v. State of Haryana,
132 R.S. Nayak v. A.R. Antuley, 135 Raghubir 605 Rony v. State of Maharashtra, 330 Rudal
Singh v. State of Haryana, 369, 375 Shah v. State of Bihar, 393, 411, 670, 681
Raghunath v. Mrs. T. P. Faria, 561 Ragina v.
Morgan, 23 Rahmatulla v. State, 552 Rahul
s
S.P. Anand v. State of Madhya Pradesh, 442
Mishra v. State of Madhya Pradesh, 605
S.R. Bommai v. Union of India, 412, 494 Sabestein
Raja Ram Yadav & others v. State of Bihar, 322
Hongory v. State of Bihar, 669 Saheb Singh v.
Rajbir v. State of Haryana, 256, 330, 550 Rajbir
State of M.P., 23 SAHELI v. Commissioner of
Raghubir Singh v. State of Haryana, 549
Police Delhi, 371, 378, 393, 411, 636, 669, 670, 683
Rajender Chandra v. Chandigarh
Sakila Abdul Gafar Khan (Smt.) v. Vasant
Administration, 587 Rajender Dutt v. State of
Raghunath Dhoble, 375 Sakshi v. Union of India,
Haryana, 543 Rajendra Dutta Zarekar v. State of
196 Salem Govinda Chetty v. State of Andhra
Pradesh, 552 Samir Chatteijee v. State of West v. Dr. Vimladevi, 23 State v. Ghanshyam, 593
Bengal, State (Assistant Inspector of Labour, Circle
514 II, Nagar Coil) v. S. Radhakrishnan,
Samresh Bose v. Amol Mitra, 172 Sanchu Ray v. 549
State of Assam, 540 Sanjay Suri v. Delhi State Exrel Clark v. Adams, 389 State of Andhra
Administration, 450, 456 Pradesh v. Chalia Ramakrishna Reddy, 682 State
Sanjay Yadav v. State of Bihar, 592 of Bihar v. J.A.C. Saldhana, 357 State of Gujarat
Santa Singh v. State of Punjab, 403 v. High Court of Gujarat, 442
Santenu Mitra v. State of West Bengal, State of Gujarat v. V.A. Chauhan, 555 State of
587 Gujarat & another v. Hon’ble High Court of
Sarat Chandra v. Khagendra Nath, 307 Gujarat, 437 State of Haryana v. Bhajan Lai, 401
Sarojakhan Nayar v. State of Maharashtra, 411 State of Haryana v. Hasmat, 516 State of Haryana
Sarojini v. State of M.P., 632 Sarveshwar Prasad v. Premchand, 558 State of Himachal Pradesh v.
Sharma v. State of M.P., 308
Asha Ram, 198, 206
Sarwan Singh v. State of Punjab, 681 Satbir
State of Karnataka v. M. Chandrappa and
Singh and others v. State of Haryana, 586 Satna
another, 550 State of Karnataka v. Raju, 201
Majhi u. State of Assam, 23 Satto v. State of U.P.,
State of Kerala v. KM. Anthony, 199 State of M.P.
559 Sattyam Infoway Ltds. (M/s.) v. M/s.
v. Babulal, 202 State of M.P. v. Munna Choube
Sifynet Solutions (P) Ltd., 151 Satya
and another, 330 State of Madhya Pradesh v.
Narayan Tiwari @ Jolly & Another v. State of
Kusum, 516 State of Maharashtra v. Asha Arun
U.P., 331 Satyabhan Kishore v. State of Bihar,
Gawali, 453 State of Maharashtra v. Christian
546 Satyendra v. State of Uttar Pradesh, 325
Community Welfare Council of India, 682
Sebastain M. Hongray v. Union of India, 393
State of Maharashtra v. Jagmohan Singh Kuldip
Sevak Perumal v. State of Tamil Nadu, 283
Singh Anand and others, 545 State of
Shah Bano Begum’s case, 411 Shama Bai v. State
Maharashtra v. Kapoor Chand Kesarmal Jain,
of Uttar Pradesh, 183 Shanker Dass v. Union of
555 State of Maharashtra v. Madhukar Narayan,
India, 549 Shanti v. State of Haryana, 632 Sharad
189, 206
Birdhichand v. State of Maharashtra, 194, 327
State of Maharashtra v. Nagpur Distillers, 218
Shashi Nayer (Smt.) v. Union of India, 334 Shaw
State of Maharashtra v. Ramji Ranchandra
v. D.P.P., 23
Rokade and another, 543 State of Maharashtra v.
Sheela Barse v. State of Maharashtra, 368, 456,
Ravikanth, 378 State of Maharashtra v. Suresh
458, 460, 598 Sheela Barse v. Union of India,
Pandurang Darvekar, 507 State of Punjab u.
431, 593, 598, 605, 669 Sher Singh v. State of
Gurmit Singh, 189, 206 State of Rajasthan v.
Punjab, 312 Shidagouda Ningappa v. State of
Balchand, 444 State of Rajasthan v. Kheraj Ram,
Karnataka, 307 Shiv Mohan Singh v. State, 403
329 State of U.P. v. Ashok Kumar Srivastava,
Shiv Sagar Tiwari v. Union of India, 90, 260
327
Shivaji Jai Singh v. State of Maharashtra, 333
State of U.P. v. Deoman Upadhyaya, 359 State of
Shobha Rani v. Madhukar Reddy, 193
U.P. v. Kishna Master & ors., 393 State of U.P. v.
Shreerangyee v. State of Madras, 107 Sidharth v.
Niyamat, 365 State of U.P. v. Ramesh Prasad
State of Bihar, 591 Simon and others v. State of
Misra, 333 State of West Bengal v. Orilal Jaiswal,
Karnataka, 411 State through Supdt. Police, New Delhi v.
315 Ratan Lai Arora, 556, 557 Subhash
Siriya alias Shrilal v. State of M.P., 282 Sitaram Chander v. Kishanlal and others, 274
Paswan and another v. State of Bihar, 544 Sudesh Kumar v. State of Uttarakhand, 546
Siya Saran v. State of Madhya Pradesh, 542 Suja v. State, 537
Sobraj’s case, 447 Sukhdev Singh v. State of Punjab, 331 Sunder
Som Prakash v. State of Delhi, 279 Somnath Puri Theatres v. Allahabad Bank, Jhansi, 600 Sunil &
v. State of Rajasthan, 540 Sri Ram Chits Fund another v. State, 585 Sunil Batra v. State, 271,
Investment (P) Ltd. v. 447, 450, 455 Sunil Batra-I, 459, 462 Sunil
M.'Krishnan, 600 State v. Chotelal, 56 State Batra-II, 455, 459, 460, 461, 462 Sunil
Table of Cases xxxv
Fulchand Shah v. Union of India & other, 514

Sunil Kumar Parida v. State of Orissa, 551 Sunil
Murmu v. State of Jharkhand, 256 Sunna v.
State, 540
Supreme Court Legal Aid Committee
representing Undertrial Prisoners v. Union of
India, 444 Suresh Chandra v. State of Gujarat,
279, 513, 624
Suija Ram v. State of Rajasthan, 321 Sushil
Kumar Sharma v. Union of India and Others,
191 Sushil Murmu v. State of Jharkhand, 323
Sushila Devi v. Sharda Devi, 599 Swamy
Shraddananda alias Murli Manohar Mishra v.
State of Karnataka, 261, 274, 279, 331 Swaran
Singh v. State of U.P., 490
xxxvi Criminology and Penology
T
T. Jacob v. State, 182 T.V. Vatheeswaran v. State
of Tamil Nadu, 308, 312
Tarlok Singh v. State of Punjab, 402 Times of
India (dt. 26-6-2006) v. State of Bihar, 446
Tolaram v. State of Rajasthan, 57 Trikha Ram v.
V.K. Seth, 550 Triveniben v. State of Gujarat, 333
Tukaram v. State of Maharashtra, 369, 632
u
Umesh Chandra v. State of Rajasthan, 588
Ummilal v. State of M.P., 307 Union of India v.
Union Carbide Corporation, 280 Union of India
and others v. Bakshi Ram,
550
Union of India and others v. Devendra Nath, 329
Uttam Singh v. Delhi Administration, 540
V
V.M. Arbat v. K.R. Sawant, 411 Veena Sethi v.
State of Bihar, 670 Veerumchanni Raghvendra
Rao u. State of Andhra Pradesh, 515
Venka Radhamanohari v. Venka Venkata Reddy,
411 Venkatachala v. The Panchayat Board,
Ethanu, 396 Venugopal v. State of Karnataka,
194 Vijay Kumar v. Narendra & others, 516
Vijay Kumar v. Public Prosecutor, 462 Vikas
Chaudhary v. State of NCT Delhi & Another, 596
Vikas Vasistha v. Punjab and Haryana High
Court, 279 Vimla Devi (Dr.) v. Delhi
Administration, 137, 290
Vineet Narayan v. Union of India, 366 Vishakha
u. State of Rajasthan, 94, 192 Vishal Jeet v. Union
of India, 612 Vishnu Moorthi u. State of Mysore,
552 Vishwanathan & others v. State of Tamil
Nadu, 200
w
Wilfred Joseph Dawood Lama v. State of
Maharashtra, 218
Y
Yahoo Inc. v. Akash Arora, 151 Yogendra
Moraiji v. State of Gujarat, 23 Yusuf Ali v. State
of Maharashtra, 370
Chapter I
The Concept of Crime

It is a myth to think of a crimeless society. In fact, there can be no society without the
problem of crime and criminals. The concept of crime is essentially concerned with the
social order. It is well known that man's interests are best protected as a member of the
community. Everyone owes certain duties to his fellow-men and at the same time has
certain rights and privileges which he expects others to ensure for him. This sense of
mutual respect and trust for the rights of others regulates the conduct of the members of
society inter se. Although most people believe in 'live and let-live' principle yet there are a
few who, for some reason or the other, deviate from this normal behavioural pattern and
associate themselves with anti-social elements. This obviously imposes an obligation on
the State to maintain normalcy in society. This arduous task of protecting the law abiding
citizens and punishing the law breakers vests with the State which performs it through
the instrumentality of law. It is for this reason that Salmond has defined law as a 'rule of
action' regulating the conduct of individuals in society. The conducts which are
prohibited by the law in force at a given time and place are known as wrongful acts or
crimes whereas those which are permissible under the law are treated as lawful. The
wrongdoer committing crime is punished for his guilt under the law of crime.
Early concept of .crime
Eversince the dawn of human civilisation crime has been a baffling problem. There
is hardly any society which is not beset with the problem of crime. Commenting on this
aspect of crime problem, Emile Durkheim in his treatise 'crime as a normal phenomenon’
says, "a society composed of persons with angelic qualities would not be free from
violations of the norms of that society. In fact, crime is a dynamic concept changing with
the social transformation. He argues that crime is a necessary feature of every society as
it is a fundamental condition of social organisation. Different groups have variable and
often incompatible interests in the society which give rise to conflicts eventually
resulting in the incidence of crime.
Historically, the concept of crime seems to have always been changing with the
variations in social conditions during the evolutionary stages of human society. This can
be illustrated by the fact that early English society during 12th and 13th centuries
included only those acts as crime which were committed against the State or the religion.
Thus treason, rape and blasphemy were treated as crime whereas 'murder' was not a
crime.1
Primitive societies did not recognise any distinction between the law of crime and
torts but only knew law of wrongs. Commenting on this point Fedrick
Pollock and Maitland observed that the English society prior to tenth century confused
crimes with torts because the bond of family was far stronger than that of the
community,2 the injured party and his kindred could avenge the wrong by private
vengeance and self-redress. During this period, recourse to legal remedy was
considered merely an optional alternative to self-redress. The wrongdoer was supposed
to offer compensation to the person wronged, the quantum of which depended on the
extent of the wrong caused and the status of the sufferer. The payment of compensation
known as 'bot' washed away the guilt of the wrongdoer and relegated him to a position as
1 See Oppenhimer on "Rationale of Punishment".

2 Radcliffe & Cross : The English Legal System (1954), p. 6.
if he had done no wrong. The early Anglo-Saxon laws contained minutest details of
compensation (bot) which was payable for different wrongs with a view to helping the
person wronged in seeking redress.
However, if bot was refused, the law had no other means to enforce its payment.
In that event it was for the victim or his kindred to prosecute a ‘blood-feud’ against the
wrongdoer and law could help him only by declaring the wrongdoer as an 'outlaw' who
could be chased and killed by anyone like a wild beast.
Besides the offences which could be atoned by bot (payment of compensation to
the victim) there were certain other wrongs which entailed additional fines (wite)
payable to the King. That apart, there were certain botless offences for which no
amount of compensation could wipe out the guilt and the wrongdoer had to undergo
punishment. Such cases were punishable with death, mutilation or forfeiture of
property to the King. House-breaking, harbouring the outlaws, refusing to serve in the
army and breach of peace etc., were some of the early 'botless' offences which entailed
compulsory punishment under the law of the State. As a matter of fact it is from these
'botless' offences that the modem concept of crime has emerged. The number of
‘botless’ offences increased considerably after twelfth century. Thus a distinct line of
demarcation could be drawn between the wrongs which could be redressable by
payment of compensation (bot) and those which were not so redressable by money
compensation (botless) and for which the wrongdoer was to be punished by the King. In
course of time the former came to be known as civil wrongs or 'torts' while the latter as
'crime'. It can, therefore be observed that the law did not play compelling part in
regulating the social relations in early days as it does today. The modem legal systems
provide that as soon as an offence is committed, the law is set into motion at once
irrespective of the wishes of the injured party, whereas in early societies the law was
administered only if both the parties agreed to submit themselves to the verdict.
Another characteristic feature of this period (1000 to 1200 A.D.) in the history of
crime was the preponderance of the system of ordeals by fire or by water3 to establish
the guilt or innocence of the accused. This was perhaps due to the dominance of
religion in early days and superstitions of the people who believed that their social
relations were governed by some supernatural power
3 In the ordeal by fire the accused was to carry a red-hot iron to a distance of nine feet. Thereafter,
his hands were bound up unbandaged. After three days, if the wound was healed up, he was
considered to be innocent. In ordeal by water, the accused was bound and lowered in a pool, if he
sank a certain distance, he was innocent otherwise he was considered to be guilty and punished.
which they regarded omnipotent.

According to Dharamsastra writers ordea] was a living institution in India.
Epigraphic and legal records show that ordeal was practised strictly according to the
Dharamsastra rules since times immemorial in the Indian history. Ancient writers have
referred to the ordeals as divine methods with various names such as Samayakriya,
Sapatha, Divya, or Pariksa. Ordeals were treated as a divine means of proof about guilt or
innocence of the accused. The two important aspects of ordeals were : (i) they indicated
the divine aspect of trial, and (ii) the basic idea underlying this method of trial was the
need of divine intervention at a crucial moment in dispensing justice. Thus ordeal was
an antique institution, a deep rooted custom, practised by the people in ancient India.
Yajnavalkya mentions five kinds of ordeals—Balance, Fire, Water, Poison and Kosa.4
In the Balance ordeal, the accused was weighed against a stone and if the latter
was lighter, the charge was considered to be false, but if it was otherwise, the charge
stood proved.
The fire ordeal consisted of four main forms, namely, (i) going through nine circles
with red-hot iron-ball in hand; (ii) walking over burning fire; (iii) lifting up a piece of
iron from boiling oil; and (iv) licking the red-hot iron bar with tongue.
In water ordeal, the accused was brought to a deep and rapidly flowing river or a
deep well full of water. Then he was to speak to the water; 'since thou belongest to the
pure angels and knowest both what is secret and the public, kill me if I lie and angels
preserve me if I speak the truth'. Then five men took the accused and threw him into the
water. If he was not guilty, he would not drown or die.
The poison ordeal was also used as a method of investigation. The accused was
made to eat the poison or take out a living black serpent from a pot. If he survived
harmless, he was supposed to be innocent otherwise he would be deemed guilty.
The kosa form of ordeal was the mildest ordeal meant for universal application.
The accused was taken to a temple. Then the priest poured water over the deity (idol)
and this holy water was given to the accused for drinking. If he was guilty or false, he
would at once vomit blood.
The first three ordeals were based on the principle of divine judgment. They,
however, fell into disuse in course of time.
With the march of time, human reasoning improved and the King assumed greater
responsibility for apprehending offenders, a duty which was hitherto the sole concern of
the injured party. The changes in civilization, culture and advancement of scientific
knowledge also brought about a change in the concept of crime which eventually led to
the emergence of criminology as an independent branch of knowledge.
Eighteenth And Nineteenth Century
In European countries particularly in France and Italy, the period of eighteenth
century witnessed an era of miraculous reorientation in
4 Dr. Pendse S.N. : Oaths and Ordeals in Dharamsastru (M.S. University, Baroda Publications, 1985)
p. 24.
criminological thinking. The earlier emphasis on crime, the idea that crime was the
result of divine displeasure, the superstitions and myths were all abandoned and the
study of crime and criminal was started afresh on a scientific basis. It was firmly
established that no one else than the offender himself could be attributed criminal
responsibility for his crime and the external agencies had nothing to do with it.
Thus it would be seen that the concept of crime is closely related to social policy
of a given time. With changes in ideologies the concept of crime also changes. That is to
say, certain new crimes spring up whereas some existing crimes become obsolete and,
therefore, they are deleted through adequate changes in the criminal law. It is for this
reason that the criminal law has often been considered as a barometer to gauge the moral
turpitude of the society at a given time. In other words, the social standards of the
society can conveniently be judged by studying the criminal policy adopted by it. A few
illustrations from the Indian society will support this contention. The legislative
measures to legalise abortion in certain cases sufficiently reflect the changing concept of
morality in Indian society. More recently, the stringent anti-dowry laws enacted to
prevent the incidence of dowry-deaths and bride-burning and deterrent legislation
against the practice of sati providing for death sentence and fine to those who abet this
evil practice in any form clearly indicate that the society is no longer going to tolerate
atrocities against women and desires to assure them a dignified place in the community.
The Protection of Women Against Domestic Violence Act, 2005 and the Children's
Rights Act, 2006 reflect the changing trend of society towards women empowerment
and protection of children from abuse.
Twentieth Century
There has been considerable increase in crime rate in recent decades. This
phenomenon, however, is not peculiar to India alone. The crime statistics all over the
globe have recorded a similar trend. In fact, the incidence of crime in western countries
is far greater than that of India, perhaps because of the variance of social conditions in
these countries. The factors such as greater control of family over the wards and respect
for morality and religion, etc. have acted as effective restraints to reduce the incidence
of crime in India. This is wanting in western countries. Generally speaking, the upward
trend in crime rate can be attributed to modernisation, urbanisation, industrialisation,
advance of science and technology and growth of civilization, and advent of
materialism. With economic growth, people's craze for wealth and other luxuries of life
has increased beyond limits which cannot be quenched with the available resources.
Obviously, persons who cannot resist their temptations quite often resort to unlawful
means to meet their ulterior motives. Scientific know-how has proved a boon to
offenders in carrying out their criminal activities with considerable ease. They have
provided better opportunities for escape and avoid detection which has mitigated the risk
involved in committing crimes.
Twenty-first century's Hi-tech world and use of computer network has given rise
to cyber crimes and other computer related unlawful activities. Cyber crimes are
harmful acts committed for or against a computer or against information on computer
network. These crimes differ from most terrestrial crimes in four ways. Firstly, it is easy
to learn how to commit them, secondly, they hardly require any resources, thirdly, they
can be committed in a jurisdiction without being physically present in it, and fourthly,
they are often not clearly illegal. Undeterred by the prospect of arrest or prosecution, the
cyber criminals operate around the computer network and thus are a menace to e-mail or
e-commerce users. These cyber crimes cover a wide range of illegal activities which
include frauds, hackers, viruses, pornography, harassment, stalking, data-diddling etc.
These offences call for need to recognise the fact that criminal law must continue to
The Concept of Crime 7
evolve if it is to address itself adequately to new developments in information

technology. Because of the cyber crimes' international potential, there is need for an
effective anti-cyberspace international law for preventing cyber crimes.5
These developments necessitate a fresh approach to crime and criminals so as to
cope with the new situations and keep crimes well within control.
That apart, social change which is inevitable in a dynamic society, has resulted in
disharmony, conflict and cultural deviations. On the whole, social disorganization has
taken place and the traditional patterns of social control mechanism have totally broken
down. In the wake of such rapid social transformation the incidence of crime has gone
up tremendously in urban areas, particularly in big cities. The hetrogeneity of the Indian
life has destroyed the earlier congenial social complex of the society creating fertile
ground for criminality. The criminalisation of Indian politics 6 in recent years has made
the crime situation still worse as evinced by scams, corrupt practices, bomb-blasts, sex-
scandals and all sorts of violent activities.
Crime defined
A precise definition of 'crime' is by no means an easy task. Generally speaking,
almost all societies have certain norms, beliefs, customs and traditions which are
implicitly accepted by its members as conducive to their well being and healthy
development. Infringement of these cherished norms and customs is condemned as anti-
social behaviour. Thus many writers have defined 'crime' as an anti-social, immoral or
sinful behaviour. However, according to the legal definition, 'crime' is any form of
conduct which is declared to be socially harmful in a State and as such forbidden by law
under pain of some punishment. Therefore, Tappan has defined crime as, "an intentional
act or omission in violation of criminal law committed without any defence or
justification and penalised by the law as felony or misdemeanour."7
According to Kenny, "crimes are wrongs whose sanction is punitive, and is in no
way remissible by any private person, but is remissible by the Crown alone, if
remissible at all". But this definition has evoked criticism on the ground that there are
indeed a number of compoundable offences that are remissible by the consent of the
parties.
Expressing his views on definition of crime, Roscoe Pound commented that "a final
definition of crime is impossible, because law is a living and changing thing, which
may at one time be based on sovereign will and at another time on juristic science,
which may at one time be uniform, and at another time give much room for judicial
discretion, which may at one time be more specific in its prescription and at another
time much more general."
Cross & Jones define crime as a legal wrong the remedy for which is punishment of
the offender at the instance of the State.
5 Rekha Balu's article on Cyber Crime published in Futurist, dated Jan. 17, 2001.
6 The issue of nexus between criminals and political functionaries or government high ups was
highlighted in the N.N. Vohra Report which was tabled in the House of Parliament on 2nd August,
1995. The assassination of trade union Leader Shanker Guha in 1992 and the 'Naina Sahani Murder
Case' of 2nd July 1995 are some of the recent instances of criminalisation of Indian politics. Acting
promptly, the Madhya Pradesh Government appointed one-man 'G.G. Sohani Commission' on 7th
August, 1995 to investigate into criminal links between politicians and the criminals. The gruesome
murder of the President of Sagar District Congress (1) Women Wing Smt. Sushma Singh in June
1995 by her husband Mahendra Singh who was an influential Socialist Party leader of Madhya
Pradesh is yet another example of criminalisation of political leaders. The sitting Member of
Parliament from Madhepur, Bihar, Pappu Yadav who allegedly murdered C.P.M. legislator, Ajit
Sarkar in 1998 is presently under trial. Disposing of his bail application finally the Supreme Court
in November, 2006 directed that his bail application should not be entertained in any court.
7 Tappan Paul W : Crime, Justice & Correction, p. 80.
John Gillin defines crime as an act that has been shown to be actually harmful to
the society or that is believed to be socially harmful by a group of people that has power
to enforce its beliefs and that places such act upon the ban of positive penalties. Thus he
considers crime as an offence against the law of the land.8
According to Blackstone, a crime is an act committed or omitted, in violation of a
public law either forbidding or commanding it.9 He, however, realised at a later stage
that this definition may prove to be misleading because it limits the scope of crime to
violations of a 'public law' which normally covers political offences such as offences
against the State. Therefore, he modified his definition of crime and stated, "a crime is a
violation of the 'public rights and duties' due to the whole community."
Stephen, the editor of Blackstone's commentaries further modified the above
definition and said, "a crime is a violation of a right, considered in reference to the evil
tendency of such violation as regards the community at large."
Thus both, Blackstone and Stephen stress that crimes are breaches of 'those laws
which injure the community'. Stephen further added that "crime is an act which is both
forbidden by law and revolting to the moral sentiments of the society."
Rejecting this juridical concept of crime the well known Italian criminologist
Iiaffeale Garafalo preferred sociological definition of crime and stated that crime is an act
which offends the basic sentiments of 'pity' and 'probity'- Yet another view about crime
is to treat it as an anti-social behaviour which is injurious to society.
Supporting this contention Sutherland characterises crime as a symptom of social
disorganization. The tendency of modem sociological penologists is, therefore, to treat
crime as a social phenomenon which receives disapprobation of the society.
In the words of Donald Taft, "crime is a social injury and an expression of
subjective opinion varying in time and place".
Halsbury defines crime as an unlawful act which is an offence against the public
and the perpetrator of that act is liable to legal punishment.
From the foregoing definitions, it may be said that a crime is a wrong to society
involving the breach of a legal wrong which has criminal consequences attached to it i.e.
prosecution by the State in the criminal court and the possibility of punishment being
imposed on the wrongdoer.
It is significant to note that though the legal definition of crime has been criticised
because of its relativity and variable content yet Halsbury's definition is perhaps the most
acceptable one as compared with other definitions because of its elaborate and specific
nature and element of certainty. Further, it also provides for the machinery and
procedure to determine the violations and to identify the offenders.
Crime without a Victim
There are certain offences which though punishable under the law, do not have any
direct harm on others. Such offences may be termed as victimless crime. For example,
drunkenness and related offences, sale and use of prohibited substances, vagrancy,
begging, soliciting, bestiality etc. do not cause any harm to any person and hence they
may be categorised as victimless crime. It may be stated that legality or illegality of such
crimes depends mostly upon the morality and economic interests of the community. It is
mainly for this reason that many of these activities are decriminalised and taken out
from the purview of criminal law. Thus, drunkenness and homosexuality are
decriminalised in U.K. and many other European countries when not committed in a
public place. The justification advanced for decriminalisation of these offences is that
8 Gillin J.L. : Criminology & Penology, 3rd Ed., p. 6.

9 William Blackstone : Commentaries, Vol. IV, p. 5.
use of non-criminal methods such as social service programmes etc. to help drug addicts
or drug-traffickers or homosexuals would perhaps be more helpful than the use of
criminal law to control their behaviour.
Classification of Crimes
The existence of crime in a society is a challenge to its members due to its
deleterious effect on the ordered social growth. In fact, it leads to a colossal waste of
human energy and an enormous economic loss. Therefore, with the advance in the field
of criminology and behavioural sciences, efforts are being constantly made to work out a
commonly acceptable classification of crimes and criminals for providing a rational
basis of punishment for various categories of offenders.
There are a variety of crimes such as violent personal crimes, occasional property
crimes, occupational crimes, political crimes, public order crimes, conventional crimes,
organised crimes, professional crimes, white collar crimes, sexual crimes, crimes against
property, person, decency, public order etc. Broadly speaking, these may be categorised
into three main heads, namely, (i) offences falling under Code of Criminal Procedure;
(ii) offences under Indian Penal Code; and (iii) offences under local or special laws or
enactments.
Some writers have preferred to classify crimes into legal, political, economic,
social and miscellaneous crimes.
1. Legal crimes can be termed as traditional crimes such as theft,
robbery, dacoity, rape, hurt and rioting etc.
2. Political offences are those which are motivated politically or committed in
violation of the election laws or norms set out for the politicians in course
of their political activities.
3. Economic crimes include white collar offences such as tax evasion,
smuggling, prostitution, gambling, foreign exchange violations, offences
under the MRTP (Amendment) Act, 1991 etc.
4. Social crimes are those which are committed under social legislation such as
the Child Marriage Restraint Act, 1978; Protection of Civil Rights Act,
1955; Immoral Traffic (Prevention) Act, 1956; Indecent Representation of
Women (Prohibition) Act, 1986; Commission of Sati (Prevention) Act,
1987; The Dowry Prohibition Act, 1961 as amended in 1983 and 1986;
Juvenile Justice (Care and Protection of Children) Act, 2000; Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 etc.
5. All other remaining crimes which are committed under local or special Acts,
are termed as miscellaneous crimes, for example, offences under the
Prevention of Food Adulteration Act, 1954; Drugs Act, 1940; Consumer's
Protection Act, 1986; Prevention of Illicit Traffic in Narcotic Drugs &
Psychotrophic Substances Act, 1988 etc.
More recently, a new species of crime known as cyber crime has emerged as a
result of development of computer science and information technology during last
quarter of the 20th century. These are crimes either computer generated crime or where
computer software is itself a target of crime. A special Act called the Information
Technology Act, 2000 has been enacted to tackle these offences.
Classification of offences under I.P.C.
Under the Indian Penal Code, various offences have been classified into seven
broad categories on statistical basis. They are :—
1. Offences against person.
2. Offences against property.
3. Offences relating to documents.

4. Offences affecting mental order.
5. Offences against public tranquillity.
6. Offences against State.
7. Offences relating to public servants.
This classification seems to be more rational and elaborate from the point of
view of administration of criminal law and penal justice.
Characteristics of Crime
There are certain characteristics of a crime which make an unlawful act or
omission punishable under the law of the land. The main characteristics of a crime are as
follows :—
(1) External consequences.—Crimes always have a harmful impact on
society may it be social, personal, emotional or mental.
(2) An act (Actus Reus).—There should be an act or omission to constitute a crime.
Intention or mens-rea alone shall not constitute a crime unless it is followed by some
external or overt act. Generally, omitting to do something will not amount to actus reus of
an offence. The criminal law usually punishes individuals for positive conduct and not
for inaction. There are, however, some notable exceptions. For example, a police officer
may have a duty to act to prevent an assault and if he does not, he will be liable to be
punished under the law.
(3) Mens-rea or guilty mind.—Mens-re is one of the essential ingredients of a crime.
It may, however, be direct or implied. The implied mens-rea is otherwise termed as
constructive mens-rea.10
Mens rea implies that there must be a state of mind with respect to an actus reus, that
is, an intention to act in the proscribed fashion. It is, however, important to distinguish
mens rea from motive. Thus if a person steals away a few loaves of bread from someone's
kitchen to feed a child who is dying of hunger, the motive here may be honourable and
understandable, nevertheless the mens rea being to commit the theft, the person would be
convicted for theft. His motive may, however, be taken into account in sentencing and
he may be less severely punished because of his good motive. In short, motive should be
taken into consideration at the sentencing stage and not at the time of deciding the
question of mens rea.
(4) Prohibited act.—The act should be prohibited or forbidden under the existing
penal law. An act, howsoever immoral, shall not be an offence unless it is prohibited by
law of the land.
(5) Punishment.—The act in order to constitute a crime should not only be
prohibited by the law but should also be punishable by the State. The punishment is
usually set out in terms of a maximum and the actual punishment in any particular case
is left to the discretion of the judge. Both, the defence and the prosecution have a right to
appeal against the quantum of sentence.
Sin and Crime Distinguished
Though there is some kind of semblance between sin and crime, the two radically
differ in their content, scope and consequences.
The concept of sin emanates from religion whereas crime is a legal proposition. Sin
results in violation of rules of religion or morality while crime involves breach of law. A
10 The maxim ‘actus non facit reurn nisi mens sit rea' means that an act alone does not constitute a
crime unless it is accompanied by guilty intention. The doctrine had been discussed elaborately by
Will., J. in Tolson’s case (1869) 23 QBD 168.
sinner is punished by God but a criminal is punished by the State. There is no dirt’t
injury or harm in case of a sin but a crime necessarily involves some kind of direct
injury. The remedy for a sin is penance whereas a person who commits a crime is
subjected to a term of sentence by the law court.
Crime and Morality
The word 'crime' is derived from the latin word 'krimos' which means 'to accuse. It
covers those acts which are against social order and deserve disapprobation and
condemnation of society.
Linking crime with morality, Gnmfnlo, an eminent Italian criminologist observed
that "crime is an immoral and harmful act that is regarded as criminal by public opinion
because it is an injury to so much of the moral sense as is possessed by a community."11
The perception of crime as an immoral act had its roots in the medieval legal
system when laws were mostly based on religious precepts and the State was
subordinated to the Temporal power. The Penal Code was considered as a body of
ethical rules making all immoral acts punishable. But with the change in time and
advance of legal science, the social norms too have radically changed. Therefore, now a
crime is defined as an act forbidden and punishable by law and it is immaterial whether
such an act is moral or immoral from the ethical point of view. No doubt, most of the
immoral acts which were traditionally considered as crime are treated as crime even
today, but there are a number of conducts which though immoral are not considered as
crime. For example, ingratitude, callous disregard for sufferings of others, hard-
heartedness etc. are not regarded as crime though they are against morality. It would be
pertinent to quote the observations made by the authors of the Indian Penal Code in this
regard :—
"Many things which are not punishable are morally worse than many things
which are punishable. The man who treats a generous benefactor with gross
ingratitude and insolence deserves more severe reprehension than the man who
aims a blow in passion, or breaks a window in a frolic; yet we have punishment
for assault and mischief, and none for ingratitude. The rich man who refuses a
mouthful of rice to save a fellow-creature from death may be far worse than the
starving wretch who snatches and devours the rice; yet we punish the latter for
theft, and we do not punish the former for hard-heartedness."12
It would, therefore, be seen that if the social expediency along with some other
factors which makes an act a 'crime' it is not material whether that act is moral or
immoral.
Conclusion
The recent developments in the field of psychology, sociology and other
behavioural sciences have brought in their wake a corresponding change in the
criminological trends and opened new vistas in comprehension of human behaviour. It
has been generally accepted that crime is a product of various factors which cannot
always be explained on the basis of hedonistic calculus of pain and pleasure as
propounded by Bentluim. There is need to control criminogenic influences by improvised
correctional techniques so as to bring out resocialisation and reformation of the
offenders.
Summing up, the following generalisations regarding the concept of crime may
prove useful in comprehending the subsequent developments in the field of criminology
and penology.
(1) Crime and social policy are inter-related and the concept of crime
11 Gnrnfnlo : Criminology, (1914) p. 59.

12 Draft Penal Code p. 174.
and punishment depends largely on the social values, accepted norms and
behavioural patterns of a particular society at a given time.
(2) Like the society, crimes are also a varying content changing with the
changes in social structure. What is crime today may become a permissible
conduct tomorrow and vice versa. For example, abortion which was
considered to be a heinous crime because of the immorality involved in it is
no longer an offence under certain circumstances consequent to the
enactment of law legalising abortion.13 Even pre-natal determination of the
sex of a child has been prohibited and made punishable with a view to
prevent parents aborting a girl-child.14
(3) Crime is a relative term, therefore, what is wrongful (crime) at one place
may not be necessarily so in another place. Thus adultery is a criminal
offence in India but in England it is merely a civil wrong redressible by
payment of compensation. Again, in India consuming liquor is an offence in
many States under their respective prohibition laws but it is not so in wet
areas where there is no licensing on sale of liquor. This relativity of crime
obviously reflects upon the varying social reactions to human conduct in
different places.
(4) The moral tune of the society can easily be gauged from the law of crimes
enforced in that society at a given time. This in other words means that
criminal law is an index of social progress of a given society.
(5) The emergence of law of crime and criminological knowledge has been
through a definite process of evolution corresponding to different phases of
social evolution.
(6) The modem complexities of human life have contributed to the rising
incidence of crime. But there is nothing to be purturbed about this rising
trend in criminality. In fact, it is a myth to think of a crimeless society.
Modem criminologists have even gone to the extent of reckoning increase in
crime as a symptom of social progress.
(7) With the passage of time, the emphasis has shifted from 'crime' to 'criminal'.
The modem view regarding penal policy favours individualisation of the
offender through clinical treatment methods. This has led to the emergence
of reformatory era in the field of penology thus rendering the earlier
deterrent, retributive and retaliatory methods completely obsolete and
outdated.
It is true that modern criminology owes its origin to the European criminologists
such as Beccaria, Ferri, Garafalo, Tarde and others but this does not mean that the
knowledge of criminal science was completely unknown to ancient India. The Indian
epics and other authoritative sources such as Manusmiriti, Nyaya Mimansa and Kautilya's
Arthsliastra contain exhaustive references to crime and criminals which clearly indicate
that a well defined criminal policy was in vogue in early period of Hindu society.15 The
most striking feature of the penal law of ancient India was that it used religion and
morality as the basis of determining what was criminal and what was not. People in
ancient India showed greater respect for religion, morality, ethical values and law ; the
social solidarity of the community kept people conscious about their duties towards their
fellowmen. The occurrence of crime was therefore, a rare phenomenon. Moreover, the
fear of caste expulsion and social disapprobation acted as an effective deterrent to keep
13 The Medical Termination of Pregnancy Act, 1971.

14 Pre-natal Diagonistic Techniques Act, 1994.
15 Sen, P.K. : Penology : Old & New (1943), pp. 101-107.
persons away from criminality. It was far more humiliating and disgraceful than actual
corporal punishment.
Later, with the socio-political changes due to advent of Moghul and English rule in
this country, the Indian society witnessed a radical change. Due to the impact of western
culture the past traditions and ethical values of life have lost all their significance and
there has been a drift into excessive materialism which has created an atmosphere
conducive to multiplicity of crimes. India's criminal policy, penal laws and procedural
laws are all modelled on British criminal justice system. It is therefore, difficult to link
up the ancient penal laws of India with the present law of crime and procedure.
It must, however, be emphasised that the crime and its related concepts being the
subject matter of criminology, are essentially concerned with human behaviour. Since
human behaviour cannot be defined in exact terms, opinions as to the criminological
views are bound to differ. This is evident from the fact that certain criminologists treat
criminal as a socially deviated person while others consider him as a victim of his
circumstances who needs humanitarian consideration. There are yet a few others who
treat offenders as a positive menace for the community and therefore insist on their
elimination from the society through prisonisation. Whatever may be the means adopted
for handling criminals, the ultimate object remains more or less the same, namely,
eradication of crimes from society and rehabilitation of offenders as law abiding
members of the community. Reformation of criminals through clinical approach has
been accepted as the cardinal principle of modem penology. It is for this reason that
reformation of criminals through modern clinical techniques has been acknowledged as
the ultimate object of modern penal justice. It is through this method that rehabilitation
of offenders in the community is possible so as to eliminate crime and criminals from
the society. Therefore, conventional methods of sentencing and incarceration are rapidly
falling into disuse and are being increasingly replaced by modem corrective measures
such as probation, parole and indeterminate sentence. The philosophy underlying these
reformative techniques is rehabilitation of offenders through the method of
individualisation.
While planning out a strategy for crime prevention, it must be borne in mind that
human nature is complex and no one can possibly comprehend it fully. It has, however,
been realised that all human beings do not respond to a given situation in the similar
manner because of their varying socio-economic, psychological and environmental
ramifications. It therefore, follows that all the offenders cannot be treated alike. This
necessitated the shift of emphasis on the role of prisons from mere custodial institutions
to those of treatment and training centres for offenders who indulge in law violation.
Thus treatment methods help in the resocialisation of prisoners and enable their
adjustment to healthy life patterns and improved inter-personal relationships. After-care
services also help in the rehabilitation of the relegated offenders.
The modem progressive penology which Manuel Lopez Rey prefers to call as
'applied penology' centers round three main aspects of penal justice, namely, custody,
security and control of offenders through institutional treatment.16 Its main purpose is to
ascertain the adequacy of existing penological policies and institutions and offer
solutions towards the improvement in the functioning of the existing machinery of penal
justice. This continuous analytical activity prevents penal system from being wedded to
a particular school of thought and enables it to appreciate the general context of socio-
economic and political values such as custodial rights, human rights etc.
Psychotherapists believe that analytical treatment of criminals over a period of years
may bring about profound changes in their personality and they may respond favourably
16 Manuel Lopez Rey : Studies in Analytical Penology (1964) p. 138.

to accept their social responsibilities.

Besides the preventive measures, there is also need to recognise the plight of
victims of crime by both, the criminal justice system giving them the respect they
deserve and by society providing the social support which they may need. This will
infuse confidence among them and they will cooperate with the police and other
investigation authorities in giving evidence etc.
The control of crime to be successfully tackled needs to be addressed from all
sides. Mere policing would not yield the desired results unless followed by community
involvement, support from victims and changing deep rooted attitudes like relative
deprivation by providing jobs, housing and other community facilities to the deprived
sections of society.17
It must be remembered that the essence of any criminal justice system lies in the
causation of crime and society's response to it. Since social control systems where
decide and shape the criminal sanctions in response to criminal behaviour are constantly
changing with the advance of time and technology, these should be seriously taken into
consideration for an effective criminal law administration. Law to be effective in its
governance, has to evolve with time and changing needs and emergency issues in
society. It cannot afford to the shackled to the past ignoring the contemporary changes.
The cognate conclusion that emerges from the above is that all these factors have a
bearing on criminality and, therefore need to be taken into consideration for the
prevention of crime and criminals.
17 Katherine, S. Williams : Text Book on Criminology (1st Indian Reprint 2001), p. 478.
Chapter II
Nature and Scope of Criminology
E countries thetodaynotedareItalian
nrico Ferri, criminologist once observed that most of the progressive
engaged in safeguarding the interests of their people by
adopting a criminal policy which can best protect the society from crime and criminals.
Obviously, the success in eliminating crimes from society which is otherwise known as
Social Defence, largely depends on the efficacy of criminal law administered in a
particular country. That is the reason why past few decades have witnessed
revolutionary changes in criminological thinking and frequent shifting of criminal
policies. Modem criminologists are engaged in working out a common penal
programme which could be uniformly acceptable to all countries of the world. The
ultimate object is to minimise incidence of crime by an effective administration of
criminal justice through agencies such as the court, police, prison, reformatories and
other modem correctional institutions.
The problem of crime control essentially involves the need for a study of the
forces operating behind the incidence of crime and a variety of co-related factors
influencing the personality of the offender. This has eventually led to development of
modern criminology during the preceding two centuries. The purpose of study of this
branch of knowledge is to analyse different aspects of crime and device effective
measures for treatment of criminals to bring about their resocialisation and rehabilitation
in the community. Thus criminology as a branch of knowledge has a practical utility
insofar as it aims at bringing about the welfare of community as a whole. The principles
of criminology serve as effective guidelines for formulation of penal policy. The modern
clinical methods and the reformatory measures such as probation, parole, indeterminate
sentence, open prisons and other correctional institutions are essentially an outcome of
intensive criminological researches during the twentieth century. These measures have
sufficiently demonstrated the futility of dumping offenders inside the prison cells and
infliction of barbaric punishments. Prof. Gillin has aptly observed that it is not the
humanity within the criminal but the criminality within the human being which needs to
be curbed through effective administration of criminal justice. More recently,
criminologists and penologists seem to have agreed that "individualisation of the
offender should be the ultimate object of punishment while treatment methods, the
means to attain this end". The study of crime and criminal must proceed on a scientific
basis by carefully analysing various aspects associated therewith and must necessarily
suggest measures proposed to suppress criminality. It must be added that with new
crimes emerging in modern complexities of life, we seem increasingly concerned about
the problem of crime. Today destructive acts of vandalism, highway, train and bank
robberies, looting, bomb blasts, rape, illegitimate terrorist activities, white-collar crimes,
cyber crimes, criminalisation of politics, hijacking, etc., are constantly increasing which
have posed a positive danger to human life, liberty and property. Modern criminologists
therefore seem to be seriously concerned with the problem of crime to protect the
society from such anti-social activities of criminals. It is for this reason that the two
sister branches of criminal science, namely, criminology and penology, should work
hand in hand to appreciate the problem of criminality in its proper perspective. This
aspect has been elaborately discussed in the subsequent chapters of this book.
Criminology—Its Nature and Scope
Broadly speaking, criminology deals with the legal psychiatric aspect or the
medico-psychological, biological, pedagogical or sociological aspect of criminality and

the factors related therewith.18 It, therefore, follows that criminology and criminal policy
are interdependent and mutually support one another. Thus criminology seeks to study
the phenomenon of criminality in its entirety. The science of criminology may further
be split into two, namely, (1) theoritical or pure criminology ; and (2) applied or
practical criminology.
Prof. W.A Bonder preferred to study theoretical criminology under the following
sub-heads :—
(1) Criminal Anthropology.—It seeks to understand the personality of the
offenders in physical terms. Cescire Lombroso was the first to propound this view which
eventually led to the origin of modem criminology. He was first in point of time to
explain criminal behaviour in terms of physical characteristics of the offender and
emphasised that criminals were different physically from normal persons and possessed
inferior physical characteristics. Though this view is no longer supported by modern
criminologists but it does have its theoritical importance.
(2) Criminal Sociology.—It is based on Sutherland's theory of 'differential
association' which explains criminal behaviour as a process of learning through
association with other criminals. However, this theory does not adequately take into
account the personality traits or psychological variables in criminal behaviour.
(3,) Criminal Psychology.—It seeks to co-relate criminality to emotional aspect of
human nature. French psychologist Alfred Binet and Professor jemian of USA are the main
propounders of this view. Dr. Arnold and Dr. E.A. Hooton carried further researches on this
aspect of criminal behaviour.
(4) Criminal Psycho-neuro-pathology.—This branch of criminology attributes
criminality to functional deviations and mental conflicts in the personality of the
offender. The factors such as inferiority complex, frustration, depression, anxiety etc.
may lead a person to commit crimes. Dr. Clueck and Freud are the main exponents of this
view.
(5) Penology.—It concerns itself with the various aspects of punishment and
penal policies. The various mechanisms of punishing the offenders are also studied
under penology.
Applied criminology, on the other hand, includes the study of criminal hygiene
and criminal policy which is founded on solid derivative conclusions.
18 Dr. Stephen Hurt Witz : Criminology (1948) p. 427,

NatureandScopeofCriminology 17
Besides these two, there is yet another branch of criminology called

criminalistics which connotes the police-techniques of crime investigation and
detection. It provides very useful material for study and understanding of criminal
justice administration from the point of view of field officers whose I main pre-
occupation is to deal with the law and procedure relating to investigation and
prosecution of criminal cases.
Dr. Kenny opines that criminology is a branch of criminal science which deals
with crime causation, analysis and prevention of crimes.
Criminology as a branch of knowledge is concerned with those particular
conducts of human behaviour which are prohibited by society. It is therefore a socio-
legal study which seeks to discover the causes of criminality and suggests remedies
to reduce crimes. Sociologists, however, differ in their view about criminology. In
their opinion, every anti-social act emanates from some criminogenic tendency
which needs to be cured by society. Thus they attempt to correlate the concept of
crime with other sociological and environmental factors. However, judicial approach
to criminology suggests that an act to become a crime must conform to two cardinal
principles of criminal liability, namely :—
(i) Nullum crimen sine lege,
(ii) Nnllci poena sine lege.
According to the first principle, no one is held criminally liable unless he has
done an act which is expressly forbidden under the existing criminal law of the land
and has a reprehensible state of mind to do it. The second principle suggests that no
one can be punished for an act unless it is made punishable under the law. Thus it is
doubtful whether a swimmer who keeps on watching a child drowning in a pond but
makes no effort to save the life, can be punished under the criminal law for his
omission to rescue the child.
As stated earlier, a universally acceptable definition of criminology seems to
be rather difficult. Criminologists have always differed in their views about
approach to this subject. Legalistic approach to criminology is altogether different
from that of sociologists, psychologists, biologists or economists. Legalists tackle
the issue from the criminality standpoint though they cannot afford to completely
overlook its sociological aspect because crime is a conduct of human behaviour in
society which is prohibited by law, breach of which entails punishment and is
essentially concerned with society as such.
Some authorities suggest that criminology deals with the discoursal study of all
anti-social acts which are disapproved by the society. But it may be pointed out that
the term 'anti-social' itself is very comprehensive and wide in its scope. There are
several conditions which may ultimately contribute to the incidence of crime. In case
of juvenile delinquency, a child left without proper care and attention is often not able
to adjust himself or herself to the accepted norms of society. It is, therefore, the
concern of a sociologist to find out as to what conditions or factors have really
contributed to the delinquent nature of the child. Here again, purely sociological
approach shall not serve the desired purpose unless other personality traits of the
delinquent are also taken into consideration to determine his/her guilt.
It was once believed that some persons inherit devilish tendencies by
birth. They were therefore known as born criminals or criminals by nature and were
considered incorrigibles. The only way to keep them off was their complete elimination
from the society. Later, by the mid-eighteenth century Beccaria, the pioneer of modem
criminology advocated his classical theory of criminal behaviour which was founded on
'free will' of the individual. Through a series of systematic researches he successfully
exploded the theory of born criminals and established that everyone is master of his own
self and is free to act what he wants. Thus a man resorts to criminal act out of his
intelligence and free will; Beccaria's free will theory was, however, subsequently
challenged by positivists, notably Lombroso and Tarde who suggested that man is not self-
determining agent free to act as he desires but is fundamentally a biological organism. It
is, therefore, the biological consideration which determines his acts and behaviour.
Every person, as a biological creature tries to adjust himself to social environment. It is
with this pre-supposition that sociologists precipitated the theory of 'Differential
Association' by correlating crime to environment. With the advance of knowledge and
development of criminal science, it was gradually realised that no one is a born criminal
but it is the circumstances that make him so ; not because he wants to be a criminal but
he is rather forced to lend into criminality. Now the sociologists have started gauging
with microscopic eyes the real cause of crime which may be etiological, psychological,
economic, political, cultural or social. Thus it cannot be denied that environment plays a
vital role in crime causation. To illustrate the point further it may be mentioned that
industrialisation has led to disintegration of joint family system which in turn has given
impetus to women employment and this has finally slackened the control of parents over
their wards. Consequently, there has been considerable increase in juvenile delinquency
in recent years. The liberalised legislation on divorce and legalising abortion in certain
cases has led to multiplicity of sex offences. The unethical political activities during the
post independence era have led to enormous political crimes. More recently,
criminalisation of politics has reached alarming dimensions leading to incidents of
violence including rape, murders, mass killings, etc. White collar crimes such as
hoarding, smuggling, black-marketing, monopolies, etc. have virtually paralysed India's
economic stability. In short, the problem of crime has assumed new dimensions and
needs to be tackled effectively. It is for this reason that noted criminologist Donald Taft
has rightly pointed out that criminology is behavioural science dealing with those actions
of the individual which do not have the approbation of society. Prof. Sutherland
characterised crime as a symptom of social disorganisation. In his view, just as the pain
in human body is the notification of disorganisation of some organ of the human body,
so is the crime with society. Thus sociologically 'crime' is a symptom of maladjustment
in the society. Considered from this standpoint, it is no exaggeration to say that workers'
strikes are moral holidays for them.
It shall, however, be erroneous to think that the scope of criminology is confined
only to the integrated theory of crime causation and the policies of crime control. It also
takes note of certain non-criminal behaviours within the purview of its study. For
example, investigation into the causes of juvenile delinquents reveals that they lend into
delinquency because their energies are not properly channelised. Thus, modern
criminologists are more realistic in their
approach than their predecessors. They lay greater emphasis on multiple causation
because they are convinced that crime is a social phenomenon, the political society
reacting to it through punishment, treatment or preventive measures and this sequence
of interaction is the ultimate object of criminology.
Inter-Relation between Criminology, Penology and Criminal Law
It must be reiterated that criminology is one of the branches of criminal science which
is concerned with social study of crimes and criminal behaviour.
It aims at discovering the causes of criminality and effective measures to combat crimes.
It also deals with the custody, treatment, prevention and control of crimes which, for the
purposes of this study, is termed as penology. The I criminal policies postulated by these
twin sister branches (i.e., criminology and j penology) are implemented through the
agency of criminal law. Thus for the sake of convenient following heads :—
study the entire subject may be classified under the
Criminal Science
Criminology Penology (This Criminal law (It seeks

includes study of to implement policies
custody, treatment, envisaged by
prevention and criminology and
Criminal Biology Criminal Sociology control of crime) penology)
(investigates into (enquires into the effect
various causes of of surroundings &
criminality) environment on
criminals)
It is generally said that criminal law is an index of civilisation because it is
sensitive to the changes in social structure and reflects mental fibre of a given society.
This is why Prof. Friedman calls it a barometer of moral thinking. According to Weclister,
"crime is a formal social condemnation of forbidden conduct buttressed by sanction
calculated to prevent it". Criminologists are thus confronted with three major problems,
namely :—
(1) What conducts should be forbidden and an inquiry into the effect of
environment on these conducts ;
What condemnation is appropriate in such cases ; and What kinds of
sanctions(2are
)
best to prevent these conducts, thus evident that criminology, penology and
(3) It
criminal law are inter-related and one cannot really function without the other. Hie
formulationis of criminal policy essentially depends on crime causation and factors
correlated therewith while its implementation is achieved through the instrumentality of
criminal law. It has been rightly observed by Prof. Sellin that 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 efficacy of law as a method of control. According to Donald Taft,
criminology is the scientific analysis and observation of crime and criminals whereas
penology is concerned with the punishment and treatment of offenders. In his view, the
development of
criminology has been much later than that of penology because in early periods the
emphasis was on treatment of offenders rather than scientific investigation into the
causation of crime.
Criminal Law—Its Nature and Elements :
The importance of criminal law in relation to crime need hardly be emphasised. Dr.
Allen has defined law as something more than a mere command. He observed : "it is the
force of public opinion which attempts to enforce, as far as possible, good morals for the
benefit of the society and its members". Marett views law as the authoritative regulation
of social relation. It therefore follows that law is a relative term and pervasive in nature.
In other words, it is a varying concept which changes from society to society and time to
time. The divergence between the Hindu and Mohammedan personal law of marriage,
divorce, succession, legitimacy and legislation on prohibition, abortion,19 COFEPOSA,20
etc., can be cited in support of this contention. Thus the criminal law of a place can be
defined as the body of special rules regulating human conduct promulgated by State and
uniformly applicable to all classes to which it refers and is enforced by punishment.
However, it should be noted that law is simply a means to an end and should not be
treated as an end in itself. Its ultimate object is to secure maximum good of the
community.
In order to be effective, criminal law must have four important elements viz., (i)
politically, (ii) specificity, (iii) uniformity, and (iv) penal sanction.
Politicality implies that only the violation of rules made by the State are regarded as
crime.
Specificity of criminal law connotes that it strictly defines the act to be treated as
crime. In other words, the provisions of criminal law should be stated in specific terms.
Uniformity of criminal law suggests its uniform application throughout the country
without any discrimination, thus imparting even-handed justice to all alike. The purpose
is to eliminate judicial discretion in the administration of criminal law. It must, however,
be noted that recent legislations are providing scope for more and more judicial
discretion through judicial equity to attain offender's reformation which is the ultimate
goal of criminal justice.
Finally, it is through penal sanctions imposed under the criminal law that the
members of society are deterred from committing crime. No law can possibly be
effective without adequate penal sanctions.
Perception of Criminal Law in Ancient India
In ancient Indian primitive societies the administration of justice was the concern of
the common people through their various associations such as Kula, Sreni, Guilds etc. The
King was not involved in the administration of justice at that time. It was the Dlmrma
Sutras in which it was mentioned for the first time that administration of justice was one
of the primary functions of the King.21
Mann's comprehensive Code contained not only ordinances relating to law, but a
complete digest of the prevailing religious precepts, legal philosophy,
19 Medical Termination of Pregnancy Act, 1971.

20 Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974.
21 Sen Gupta : Evolution of Ancient Indian Law, (1950) p. 3.
customs, usages etc. He in his criminal law seems to have recognised assault, theft,
robbery, breach of trust, false evidence, slander, adulter)', homicide, libel, gambling etc.
as crimes. These were the principal offences against persons and property which were
recognised under the ancient Indian criminal law. The gravity of the offence, however,
varied with the caste and creed of the offender and so was the sentence as well. The
Brahmins were treated with exceptional leniency in matter of punishment.22
The ancient criminal law in India did not recognise the distinction between public
and private wrongs. Murder and homicides were regarded as private wrongs. The right to
claim compensation from the' wrong-doer was generally accepted. A distinction was,
however, made between casual offenders and habitual criminals. Again, provisions for
exemption from criminal liability existed where the act was done in self-defence,
without intention or by mistake of fact or by consent or it was a result of an accident
which are now incorporated in the Indian Penal Code as General Exceptions.
Criminal law as found in Mann's Code prevailed in India until the Moghul rule was
established. The administration of criminal justice was entrusted to Kazis under Moghul
rulers. It provided punishment in the form of Kisa or retaliation, Diyut or blood money,
Hadd or fixed punishment, and Tazir or Syasa which meant exemplary punishment. The
notions of Kazis, however, varied according to the power of culprits, hence the law
lacked uniformity. In general, the criminal justice administration suffered from many
inherent defects during Moghul rule in India.
After the British rule in India, efforts were made to introduce a uniform code of
penal laws as a result of which the Indian Penal Code, 1860 was passed which came into
force on 1st January, 1862 replacing all earlier rules and regulations on criminal law that
existed in British India. Notably, it is still the law of the land even to this day.
Fundamentals of Modern Criminal Law
The fundamental principles of modem criminal law are founded on rules of equity,
justice and fair play. These rules provide adequate guidelines for the formulation of a
rational penal policy and at the same time ensure even-handed dispensation of justice to
litigants.
The fundamental principles governing criminal law administration may briefly be
summarised as follows :—
(1) An 'act' in order to become a crime must be committed with criminal intent
which is legally termed as mens rea. This principle is contained in the well known Latin
maxim, 'actus non facit reuni nisi mens sit rea'. It is to be noted that metis rea or criminal
intent consists in doing some act voluntarily with the knowledge that it is fraudulent,
dishonest or injurious to another. However, an act done under a bona fide belief, though
criminal, shall be a good defence.23 Thus, no act shall be a crime without mens rea or
guilty mind of the doer. It must be stated that the mens rea in case of a murder consists in
malice forethought, for rape in forcible connection with a woman without her consent,
22 See Manu . Institutes of Hindu Law Chapter VIII, p. 380.

23 R. v. Tolson, (1889) 23 QBD 168 ; See also Natlmlal v. State of Madhya Pradesh, AIR 1966 SC 43.
for theft in an intention to steal and for procuring stolen goods with the knowledge that
the goods was a stolen one. The cases of D.P.P. v. Smith24 ; Shaw v. D.P.P.,25 State v. Dr.
Vimladevi,26 can be cited in support of this connection.
It must be noted that the juristic concept ‘actus reus' represents the physical aspect of
crime while mens rea, its mental aspect. The concept of mens rea comprises several other
states of mind, namely, will, intention, motive and so on. Thus, it covers a wide range of
mental attitudes and conditions the existence of which would give rise to actus reus.
Sometimes mens rea refers to foresight of the consequences of an act and at others it
consists in the act per se irrespective of its consequences.27
In some cases mens rea also denotes inattention of the doer of the criminal act which
can otherwise be called his recklessness. Thus, in case of manslaughter by negligence, the
accused causes death of the victim due to his negligence, nevertheless, he is held
criminally liable.28
Though metis rea is an essential ingredient of every offence, it can be dispensed with
in the following exceptional cases :—
(i) Cases not criminal in any real sense but for punishment in view of the public
welfare.
(ii) Public nuisance.
(iii) Cases which are criminal in form but for which summary mode of
enforcement shall be adequate in view of the urgency and importance of the
protection of civil rights violated thereby. Thus, a legitimate exercise of the
right of private defence29 may exclude many intentional acts which would
otherwise be offences. Again, a delicate surgical operation being the only
remedy to save the life of a patient, if done with this object but with full
knowledge that it can also be fatal, would not be mi offence because the
intention of the operating surgeon is to save the life of the patient.
(2) Another important principle of criminal law is embodied in the maxim
"ignorantia facit excusat, ignorantia juris non excusal". It suggests that mistake of fact is a
good defence30 in law of crime but not the mistake of law. Thus, a man before going to
Church left his gun unloaded. After he left, another man used it for a shoot and thereafter
kept it loaded. On return of the first man from the Church, still thinking the gun to be
unloaded as he left it, pulled the trigger with the result his wife was shot dead. The Court
held that he was not liable for murder under an excuse of mistake of fact.31 But there are
certain statutory absolute liability cases which afford no excuse to the accused for his
ignorance of fact. Thus, in R. v. Prince,32 the accused took an unmarried girl under the age
of sixteen years out of the possession, and against the will of her father. The defence of
the accused that he bona fide and honestly believed that the girl was older than sixteen as
appeared from her physical built, was not accepted as the taking of the girl was unlawful.
In such cases the law imposes a strict duty and holds the offender liable under criminal
law. If a man trespasses on someone's land thinking that land to be his own, he shall
24 (1960) 3 WLR 56.

25 (1961) 2 All ER 446.
26 AIR 1963 SC 1572.
27 Girjij Nath v. State, ILR (1945) 2 All 215 ; Sec also Partington v. William, 62 Cr App R 220 (1976)
and Ragina v. Morgan, (1976) AC 182.
28 Section 304-A, IPC.
29 Deo Narnin v. State of U.P., AIR 1973 SC 473, See also Satna Majlii v. State of Assam, (1983) Cr L] 287
and Puran Singh v. State of Punjab, AIR 1975 SC 1674 ; Sahel Singh v. State of M.P., (1986) Cr LJ 128
; Mahinder Pal lolly v. State of Punjab, AIR 1979 SC 11 ; Yogendra Morarji v. Slate of Gujarat. AIR
1980 SC 660.
30 Section, 76, IPC.
31 Quoted by Sir Michael Foster in Foster 265 T. AC.
32 (1875) ER 2 ; CCR 154.
nevertheless be liable.
As regards mistake of law, the criminal law affords no defence but it is a good
evidence of mental condition of the offender. The reason for non-admissibility of mistake
of law as a defence is that if it were so, everyone would plead it and criminal law
administration would be reduced to a sheer farce.33
(3) The law of crimes does not permit ex post facto legislation. That is to say, all
those acts which may lead to punishment shall be duly notified and no one can be
punished for an act which is not listed as crime at the time of its commission, but has
become so subsequently.
(4) Another important principle of criminal law is that everyone shall be presumed
innocent unless his guilt is specifically proved within the provisions of law. This is
intended to afford every possible opportunity to the accused to defend himself.
(5) Under the criminal law an accomplice is treated at par with the principal
accused and is punished equally.
(6) There are certain rights and protections afforded to the accused person not only
during trial but also before and after trial. They and protections aim at providing a fair
trial to an accused and eliminate possible abuse of judicial process resulting into
miscarriage of justice. They include right to be produced before the Magistrate,34 right to
bail,35 release on bond,36 right to counsel and legal aid37 etc.
The safeguards extended to an accused in course of trial are protection against self-
incrimination and double jeopardy.38 The former suggests that no person accused of any
offence shall be compelled to be a witness against himself while the latter makes it clear
that no person shall be punished twice for the same offence. This is expressed in the well
known latin maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa.
Modern legislation on criminal law permits sufficient discretion to judicial
authorities to meet the exigencies of time thus making the law more elastic and adaptable.
Likewise, there has been a tendency to substitute indeterminate sentence for determinate
one through correctional methods such as probation, parole, reformatories, open air
camps, etc. Justifying this approach Prof. Void observes : "it is not the humanity within the
criminal but the criminality within the human being, that needs to be crushed, the
wrongdoer must be given a chance to improve". Dr. Freud, however, suggests that law in
fact is one of the agencies of social control, the efficient enforcement of which entirely
rests with the institutions such as the police, prosecutors, courts, judges, jurors, probation
officers, etc. It is for this reason that effectiveness of criminal law cannot be accurately
assessed.
The purpose of Criminal Law
The functioning of the criminal justice system is wide enough to achieve its goals
and objectives. Its ultimate goal is undoubtedly to make the society safer for its people.
More specific and generally accepted aims of criminal law include :—
1. The enforcement of criminal law should reflect the society's disapprobation
for criminals activity through apprehending, convicting and punishing
offenders.
2. Deterring criminals from indulging in criminal activities and at the same
time advising citizens as to how to avoid falling a victim to a crime.
3. Criminal law should be beneficially used to rehabilitate the corrigible
33 Austin's Jurisprudence (3rd Ed.) Vol. I p. 408.

34 Art. 22 of Constitution of India and Sec. 76, Cr. RC.
35 First Schedule of Cr. RC.
36 Sec. 440(i), Cr. P.C.
37 Art. 22(3) and Art. 39-A of Constitution of India ; See also Secs. 303 & 304 of Cr. P.C.
38 Art. 20(3) of Constitution of India, see also Sec. 20 Evidence Act and Sec. 316 of the Code of Criminal
Procedure, 1973.
offenders and incapacitating those who might otherwise prove to be a

potential danger to the society.
4. Ensuring safety and security of people through maintenance of law and
order.
5. Helping the victims to get adequate compensation from the offender
wherever possible or ensuring their rehabilitation in any other way as the
circumstance may warrant.
6. Efficient and fair application of law ensuring proper treatment of suspects,
defendants, those who are held in custody and witnesses. Also ensuring that
the innocents are acquitted without harassment and the guilty are duly
punished.
7. Ensuring that criminal justice system is accountable to the society.
As stated earlier, crime has been defined as an anti-social, immoral or sinful
behaviour which is contrary to the cherished norms, beliefs, customs and traditions of a
given society, ^cording to another school of thought, crime is an act which a particular
social group regards as sufficiently menacing to its fundamental interests to justify
formal reaction to restrain the violation. Stephen has defined 'crime' as an act which is
both forbidden by law and revolting to the moral sentiments of the society.
According to the legal definition, crime is any form of conduct which is declared to
be socially harmful to a Slate and as such, forbidden by law under pain of some
punishment.
Paul W. Tappen has defined crime as "an intentional act or omission in violation of
criminal law, committed without defence or justification and sanctioned by law as felony
or misdemeanour".
As the function of criminal law is to reprimand the offender and prevent the
incidence of crime, it becomes necessary to investigate into the nature of crime. Broadly
speaking, every criminal behaviour must respond to the following tests in order to be
reckoned as a crime—
(1) There should be an external act (actus).
(2) It should be done with some criminal intent (mens rea).
(3) It should be a prohibited conduct under the existing law, and
(4) It should carry with it some kind of sanction or punishment.
Intention and motive distinguished
It shall not be out of place to draw a distinction between intent and motive at this
place. Hie motive behind a criminal act may be ideal but the intention itself might be to
cause some harm forbidden under the criminal law. Thus, if a man breaks into his
neighbours house to steal away a few loaves of bread from the latter's kitchen in order to
feed his starving children, although his motive to save the children from starvation is
good, he shall nevertheless be liable for the offence of theft because his intention to steal
away the bread from his neighbours house was wrongful. Thus, it is the intent and Jiot the
motive which is usually relevant in criminal cases.
In the Indian context, the substantive offences are defined in the Indian Penal Code
which is the sole authority in respect of general conditions of criminal liability with
certain exemptions from such liability. Some of these crimes are cognizable39 while others
are non-cognizable. The Penal Code is supplemented by local or special statutes to punish
39 Sec 2(c) of the Code of Criminal Procedure, 1973 defines cognizable offence as an offence in which a
police officer may, in accordance with the First Schedule or under any other law for the time being in
force, arrest without warrant and non-cognizable offence means an offence in which a police officer
has no authority to arrest without warrant.
certain categories of anti-social acts or behaviours which are prejudicial to the interests of
the community or the State.
The various offences defined in the Indian Penal Code can broadly be classified
into three major heads, namely, (i) crimes against property, (ii) crimes against person, and
(iii) crimes against the State. There are in all 511 sections in the Indian Penal Code, 1860.
This Penal Code being more than 150 years old, needs to be thoroughly restructured
keeping in view the changed socio-economic perspective of justice which is the signature
tune of the modern welfare State.40
Criminology—Its importance
The need for study of criminal science (which includes criminology, penology, and
criminal law) essentially emanates out of the psychological apprehension about insecurity
of life, liberty and property of the people. It is the lust for wealth, satisfaction of baser
urges, hatred or suspicion for one another that tends people to follow criminal behaviour
and leads them to commit crime. The science of criminology therefore, aims at taking up
case to case study of different crimes and suggest measures so as to infuse the feeling of
mutual confidence, respect and co-operation among the offenders. The recent penological
reforms have achieved considerable success in this direction. The criminal law has been
adequately modified to adapt itself to the modem reformative policies. Liberalisation of
punishment for affording greater opportunities for rehabilitation of offenders through
intensive after-care programmes has been accepted as the ultimate object of penal justice.
Some of the significant attributes of criminology are noted below :
(i) 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
individualisation the method of it. Most criminologists and penologists generally
agree that every criminal is corrigible if offered adequate opportunities through
treatment methods.
(ii) As Donald Taft rightly puts it, the study of criminology also offers a
background for profession and an opportunity for social workers. The police, the
lawyers, attorneys, judges, jurors, probation officers, detectives and other
specialists such as psychologists, psychiatrists and sociologists, etc., need perfect
knowledge of criminology and administrative machinery for criminal justice system
for their professional pursuits.
(iii) Criminology also seeks to create conditions conducive to social
solidarity inasmuch as it tries to point out what behaviours are obnoxious and anti-
social. It tries to convince the offenders through punitive sanction that anti-social
conduct on their part is bound to entail them punishment, misery, misfortune and
dis-repute in society. The reformative treatment offered to first offenders, juvenile
delinquents and insane criminals is intended to reform them as law-abiding
members of society. Various correctional methods are devised to achieve this
purpose. The ultimate object is to render a crime-free society as far as possible with
a view to attaining social harmony.
(iv) It is further to be noted that with the advance of scientific knowledge
and technology the complexities of life have also considerably multiplied. This has
led to an enormous increase in crime rate and many new crimes which were
hitherto altogether unknown, have emerged. Thus, thefts of automobiles, shop-
lifting, smuggling, cheating, financial scams, bank robberies, scandals, terrorist
activities etc., have become too common these days. Again, whit^ collar crimes41
40 V.R. Krishna Iyer : Perspectives in Criminology Law & Social Change (1989) pp. 2-3.
41 The latest (2010-11) examples are 2G spectrum 'involving loss of crores to the nation. The
Commonwealth Games Scam (CWG); Mumbai Adarsh Colony for Defence Personnel Scandal, Pune
have attracted the attention of criminologists in recent years. This in turn, has led
criminal law administrators to devise new methods and techniques to tackle these
problems through intensive scientific researches. The modern computer related
crimes have thrown new challenges before criminal law administrators throughout
the world. Besides internet gambling, on-line pornography, the menace of drug-
trafficking through computer-shopping and illegal downloading of money in
transit42 are some of the cyber-crimes which are coming to light in recent years.
Thus, modem criminologists keep themselves acquainted with the new
criminological developments and work out strategies to tackle these intricate
problems for the protection of society.
Indian Concept of Criminology
A word about the Indian concept of criminology also deserves mention at this place.
Dr. P.K. Sen rightly opines that Indian epics which depict the glory of past Indian
civilisation and culture amply justify that our juris-consults were thoroughly acquainted
with the science of criminology. Their main emphasis was on the mental aspect of the
individual's personality because they regarded human mind as the centre from where all
thoughts whether good or bad, emanate. This ethical approach led them to believe that
offenders indulge in criminal behaviour because of their mental depravity and
physiogamy had nothing to do with it. It is for this reason that they treated delinquents in
a medico-legal perspective and considered them as patients suffering from some mental
disorder. Their stress was on the need for criminologists to understand the spiritual aspect
of human existence and recognise the role of meditation and yoga in mitigating
criminality. It is the egoistic urge of human being which prompts him to commit anti-
social acts with a view to deriving pleasure. Criminologists must, therefore, strive to
inculcate brotherhood and sense of equality among the members of society so that they
learn to respect the law of their land.
The central theme of the ancient Indian criminal jurisprudence was 'Dharma' which
was conceived to embody the rules of social order and was believed to be of divine origin. It was a
broad concept comprising law, religion and morality, and was equally binding on all including the
King. It was the primary duty of the King to punish the law-breakers and maintain order in society.
The rules of criminal justice were contained in royal edicts or ordinances issued by the King within
the broad parameters laid down by the Dharma. The King was expected to administer
criminal justice with great care and caution and with utmost impartiality.43 No offender
could be allowed to escape punishment and the victims of crime were even awarded
compensation in certain cases. It is thus evident that the criminal and penal law of India
imbibed finer principles of modern criminology and the concept of compensatory
jurisprudence in dispensation of criminal justice which constitutes a part of victimology
in modem time was in vogue even in the ancient past.
Radical Criminology
The current development in the field of criminology is radical criminology which
has been influenced by Marxism and conflict theories. It makes a departure from the
traditional criminology which has its focus on correctional institutions and personal
pathologies of the criminal and concentrates on the view that the behaviours of the
powerless in any society are more likely to be criminalised and this group is more likely
to be arrested, convicted and harshly sentenced. It further believes that many acts which
are more injurious than crime are tolerated as perfectly legal because they tend to be the
behaviours which are carried out by the powerful group in the society.
Influenced by the maxist view, the propounders of radical criminology have
based businessman Hasan Ali's Rs. Sixty thousand crore blackmoney deposited in Swiss Bank etc.
42 This is termed as 'Money laundering'.
43 Manu Ch. IX, 311.
advocated the view that human nature by itself is not criminal, it is the capitalism which
makes people greedy, self-centred and exploitative. The laws are the tools of the owners
of the means of production and are used to serve their interests in keeping their activities
legal even if they are harmful, brutal or morally unacceptable. Thus, there is differential
enforcement of the criminal laws by the so called 'power' group. Quinney's views on
radical criminology are primarily based on the thesis that unequal economic situation
which exists in a capitalistic society leads to inequality of power and political position.
The economically powerful are also politically powerful and this results in conflict of
interests between the powerful and the powerless groups of society. Marxists, therefore,
believed that criminology was basically a social creation.44
The purpose of radical criminologists according to Gifford Robert is to show that
various cultures which exist within a society are in conflict and the neglect of these
conflicts leads to unfair consequences leading to violation of law and breach of public
peace. The radical criminology is designed to highlight these problems.
The theory propounded by radical criminologists had its impact on criminological
developments as they raised questions of great social relevance. But they have little effect
on penal policy, particularly of socialist countries.
In the Indian context, as rightly pointed out by Justice V.R. Krishna Iyer, "radical
humanism and progressive penology must gravitate towards the processes which heal and
humanise, restore and socialise and reconcile judicial punishment with dignity of
personhood". Continuing further he observed, every saint has a past and every sinner a
future. And the technology of rehabilitation is the key to the manifestation of the divinity
already in man." According to him, "the cultural roots of India, with Valmiki the greatest
poet with a robber past and such instances of conversion from criminality to nobility fully
corroborate with the correctional philosophy advocated by radical penologists."45
Possibility of Science of Criminology
It is difficult to treat criminology as a science in the real sense of the term. As
Sutherland rightly pointed out, the essence of science lies in general propositions of
universal validity which can be made only in regard to stable and homogenous units.
Crime which is the subject matter of criminology, is neither stable nor homogenous
concept. It is rather a variable content changing from place to place and time to time, and
therefore scientific criminal behaviour is impossible. Prof. Sellin also observed that crimes
are like any other social phenomenon which have no stable unit. In his view, the ultimate
object of criminology is to study law-making and reactions to law-breaking from the
]. Quinney Richard : Class, State and Crime on the Theory and Practice of Criminal Justice (2nd ed.) p.
89.
45 Quoted from V.R. Krishna Iyer : A National Prison Policy, Constitutional Perspective and
Pragmatic Parameters (Andhra University), (1981), pp. 14-15.

point of view of efficacy of law as an instrument of social control.
The gravity of crime as a social problem lies in the fact that it affects the public
at large. The sufferings caused to the public may sometimes be direct as found in case
of theft, treason, destruction of property etc. or it may even be indirect as in case of
rape, the loss of reputation, etc. The importance of the study of criminology lies in
considering crime as a symptom of social j disorganisation. It is an indication that
there is something wrong somewhere in the society which needs to be looked into. It
is well known that the essence of science lies in universal application of its general
principles. Obviously, the present criminology does not respond favourably to this
crucial test of science. Nevertheless, criminologists are constantly striving to work
out standard rules for prevention of crime and criminals which may ultimately be
generalised as fundamental principles of ciminology in the coming time.
Commenting on the feasibility of criminology as a science, Dr. Hunvilz observed
that even if criminology is unlikely ever to discover any universal prescription for a
patent medicine against future criminality because of the great variety of factors in
real life which cannot be comprised in a single criminal policy, the criminological
researches have started influencing the general and professional mentality and a
rational view of several questions connected with criminality is bound to emerge
sooner or later. Dr. Radzinoivicz has also expressed similar views regarding scientific
approach to criminology.46
Neo-Criminology
The advent and development of computer technology has given rise to a new
concept of criminological approach which is called as neo-criminology. The
emergence of a new variety of crime known as cyber crime which are Radically
different from conventional crimes have shown that these crimes cannot be
adequately handled by the conventional criminological approach because of their
peculiar nature.
It is well known that the development of computer technology has proved a
boon to the human society but at the same time it also has its ill-effect which can be
seen in the form of cyber crime. These crimes by their nature are easy to commit,
difficult to detect and even harder to prove. It is for this reason that these crimes have
been characterised as low risk and high rewarding ventures for the cyber criminals,
who with basic knowledge of computers, can perpetrate the crime from a distant place
without the need for use of any violence or any visible criminal activity. Since
cyberspace knows no territorial boundaries, it has become easier for the cyber
criminals to remain out of reach of the law enforcement agencies.
The emergence of this new specie of crime, i.e., cyber crime in the field of
criminology has provided ever-increasing opportunities for the cyber criminals to
indulge in illegal criminal activities unabated. The last quarter of the 20th century
witnessed several sophisticated ways through which the perpetrators of these crimes
found it easy to penetrate into the systems of software and internet to commit crime.
These crimes have global ramifications causing huge damage to national economy and
business venturesey are not restricted to any specific geographical area or territory, but
they may be committed within a fraction of
46 Leon Radzinowicz : In Search of Criminology, p. 117.

a second affecting innocent victims who may not even know that they have fallen a prey
to cyber criminality. The peculiar nature of these neo-crimes is that it is only the
perpetrator who knows that what he is doing is a crime but the victim remain completely
unaware or ignorant that they are affected by the criminal act of the perpetrator. It is
therefore, obvious that these crimes have thrown a challenge before the law enforcement
agencies and they are required to evolve a neo-criminological approach to handle these
crimes.
Penology—Its future
It has been generally accepted that the attitude towards crime and criminal at a
given time in a society represents the basic values of that society. By and large, three
types of reactions are discernible in various societies. The first is a traditional reaction
which regards criminal as basically depraved and dangerous person for whom infliction
of punishment is the only alternative to eliminate him from normal society. This
punitive approach, however, represents the earlier stages of development of penology
and no longer finds support in modern times. The second reaction treats criminal as a
victim of his circumstances and a product of multiple factors operating within the
society. Thus, criminal is treated as a sick person requiring therapeutic treatment. The
third and more recent reaction to criminal is to be found in preventive approach which
lays greater emphasis on eliminating conditions which are responsible for criminality in
the offender. It must, however, be stated that these reactions towards criminal are co-
extensive and quite often overlap one another. The difference between them is to be
found in their focus of attention.
According to the principle of utilitarian hedonism, punishment should not exceed
more than what is absolutely necessary to produce the desired effect on the criminal and
society. For this purpose, the personality of the offender in physio-psychological terms
has to be understood in the background of his social surroundings. It has been realised
that feeling of inadequacy, frustration and emotional insecurity often play a dominant
role in giving rise to the criminal tendency. More recently, penological researches have
evolved a new thinkinged on the premise that crime is a social fact and human act,
therefore, the process of dealing with a criminal does not come to an end by imposing
punishment on him in accordance with law. His after-care for resocialisation and
reformation is equally important. This aspect of treatment of offenders must also be
taken into account while drawing up any programme for the prevention of crime and
treatment of offenders.
Recent developments in the field of penology are marked with rationalisation of
punishment and emphasis on clinical method of treatment of offenders and their
rehabilitation through adequate after-care measures. The utility or futility of punishment
is to be judged on the basis of utilitarian principles propounded by Jeremy Bentham.
Modern tendency is to treat punishment as an evil which should be used only if it serves
the ends of justice. Commenting on the desirability of punishment. Prof. H.L.A. Hart
observed, "we do not live in society in order to condemn, though we may condemn in
order to live."47 This is indeed a sound warning to modern penologist which suggests that
punishment should respond to needs of social defence. In sum, the ultimate
47 Hart H.L.A. : Punishments and Responsibility, p. 182.

end of penal justice is to protect and promote the welfare of the State, society and the
individual.
It is now well recognised that the ultimate object of punishment prevention of
crime and protection of the society. It is also widely agreed that no theory of
punishment can achieve the real purpose of punishment singly. As rightly pointed out
by Caldwell, "punishment is an art which involves the balancing of retribution,
deterrence and reformation in terms not only of the court and the offender but also of
the values in which it takes place and in the balancing of these purposes of
punishments, first one and then the other, receives emphasis as the accompanying
conditions change.48
Approach to Penology
Like criminology, penology may also be approached from various points of view,
each giving rise to a particular kind of penology. These may be called Administrative
Penology, Scientific Penology, Academic Penology and Analytical Penology.
(1) Administrative Penology can also be called applied penology because it
represents different penological systems in force in different countries. Its
predominant feature is implementation of governmental penal policies and
institutional treatment of offenders. Its prime functions are custody, security and
control. It addresses itself to the solution of penological problems.
(2) Scientific penology attempts to solve the problems arising in treatment of
offenders under the aegis of specialists, particularly from the medico-psychological
point of view. Its principal concern is to probe into the personality of offenders and
not the offences. Criminal penology, undoubtedly is a part of scientific penology. It
is based on the conception that there is always a determinable relationship between
cause and effect.
(3) Academic penology is mainly descriptive in character, its main purpose
being dissemination of penological knowledge through intensive teaching and
research. It concerns itself with theoretical knowledge of penology.
(4) Analytical penology aims at ascertaining as objectively as possible, the
adequacy of existing penal policies and methods and suggest measures for
improving the system. Thus, it makes a critical analysis of penal measures and
offers solutions for efficient administration of penal justice.
Analytical penology is based on a broader reality and treats crime and criminals as
social phenomenon. It needs the assistance of scientific penology to perform its functions
by careful interpretation, comparison of relevant data and observation of the functioning
of the existing machinery of criminal justice and penological system in an objective
manner. The main task of analytical penology is to examine and evaluate the socio-
economic and political values, among .which human rights play the most important role
and the corresponding criminal policy of which penological policy is a part.49
48 Caldwell : Criminology, p. 403.

49 Manuel Lopez Rey : 'Analytical Penology' published in Studies In Penology (IPPF) p. 142.
It must be stated that though these different kinds of penologies are intended to
pursue different purposes, they are all directed to meet a common goal, namely, treatment
of offenders through modern improvised scientific methods.
Caution against Excessive Reformation
Dispite the fact that traditional methods of deterrent and retributive justice have
fallen into disuse and they are now substituted by modern refonnatory measures, it must
be stated that excessive reformation is likely to defeat the very object of penology. If the
difference between the life inside and outside prison is narrowed down beyond a certain
limit, it is bound to culminate into catastrophic results. The element of deterrence is as
much necessary in any penal programme as reformation, otherwise the very purpose of
punishment will be defeated. It must be realised that ultimate control and prevention of
crime depends on the proper utilisation of criminological knowledge to tine needs of
society. This accounts for emerging importance of applied criminology in recent years.
The focus of attention should therefore not only be the 'offender' or his 'criminal act' but
the interest of society in general and the rights of victim in particular, which must be
protected at all costs.50 It is only then that the real objective of penology would be
accomplished. A balanced penal programme justifying deterrence when it is absolutely
necessary and reformation as a general mode of treatment of offenders would perhaps be
the best policy to achieve the desired ends of criminal justice administration. Justice must
be prompt, stem and summary inspiring a wholesome fear in the criminal. It must not be
forgotten that the protection of society against crime and criminals is far more important
than the personal gain of the individual offender in committing a particular crime.
Therefore, it is the offender who must suffer in the larger interests of the community.
Then only the real ends of penal justice can be accomplished. It must be remembered that
punishment presupposes an offence and the measure of punishment must not be lesser
than the offence deserves. It must be recognised that "there is a strong and wide-spread
demand of retribution in the sense of reprobation."
It may be reiterated that the faith and philosophy behind administration of criminal
justice is attainment of social justice and not individual justice. Therefore, a blatent shift
to reformation cannot be accepted as our constitutional creed. Commenting on this aspect
of penal justice, Justice Gulab Gupta, former Judge of the High Court of Madhya Pradesh
pointed out, "if reformation in fact benefits the society, the conscience of social justice
would be satisfied but if the reformation accrues to the benefit of the individual alone,
social justice would remain suffocated. Let this not happen even unwillingly or
unknowingly".51
The active participation of the people in the implementation of correctional penal
programme may be helpful in exercising effective control and supervision over the
offenders. Since the criminal is the product of community is for the community to devise
ways and means to solve this problem. The Nyaya Panchayat system representing
community justice may perhaps play a significant role in this sphere. The Lok Adalats
(Peoples' Court) which are meant for quick and cheap justice may also go a long way in
accomplishing the objective of social justice.52 The statutory recognition given to Lok
Adalats by the Legal Services Authorities (Amendment) Act, 2002 is indeed a
progressive step in this direction.
Above all, the impact of information technology and its widening dimensions have
to be recognised by the legal fraternity, particularly those who are concerned with the
50 This has eventually led to the emergence of victimology as a branch of criminal justice system and
compensatory jurisprudence.
51 'Social Justice Perspective of Criminal Justice' by Mr. Justice Gulab Gupta. (Central India Law
Quarterly Vol I (1987) p. 27.
52 Legal Services Authorities Act, 1987 (Ss. 19-22).
administration of criminal justice. The courts, advocates, academicians, law-teachers and

even the litigants have to acquaint themselves with the use of the developed and
developing tools and technologies to meet the demands thrown up by numerous statutes
and litigation explosion. The computerisation of courts, offices, law-chambers and
libraries, listing of cases, judgments etc. has rendered it possible to make the necessary
information instantaneously available. Thus, it will greatly help in plugging the loop-
holes of the existing criminal justice system and expose and destroy inefficiency,
unfairness and injustice which has crept into administration of criminal justice. The
efforts that are being made in recent years to switch over to e-courts with e-governance
for e-justice would certainly go a long way in restoring the confidence of the people in
criminal justice system which lost its credibility being too expensive and dialatory. The
development of ADR mechanism Lok Adalats plea-bargaining and setting up of the Fast-
Track Courts are some of the measures which certainly help strengethening the cause of
criminal justice system in India.
The Schools of Criminology

Chapter III
T he history of primitive societies and early medieval period reveals that human
thinking in those days was predominated by religious mysticism and all human
relations were regulated through myths, superstitions and religious tenets prevailing in a
particular society. This in other words, meant that little attention was devoted to the
motive, environment and psychology of the offender in the causation of crime.
Moreover, in absence of any definite principle for the guidance of those who were
concerned with the criminal justice administration, punishments were often haphazard,
arbitrary and irrational. This situation prevailed until the end of seventeenth century.
Thereafter, with the change in human thinking and evolution of modem society, certain
social reformers took up the cause of criminals and devoted their attention to analysis of
crime causation. This finally led to the emergence of criminology as a branch of
knowledge through development of different schools of criminology.
It has been generally accepted that a systematic study of criminology was first
taken up by the Italian scholar, Cesare Bonesana Marchese de Beccaria (1738-94) who is
known as the founder of modem criminology. His greatest contribution to the science of
criminology was that he for the first time proceeded with the study of criminals on a
scientific basis and reached certain conclusions from which definite methods of handling
crime and criminals could be worked out. Thus, the 'theories of criminology' or 'the
schools of criminology' are of a later origin. Explaining the meaning of the term 'School
of Criminology' Sutherland pointed out that it connotes the system of thought which
consists of an integrated theory of causation of crime and of policies of control implied
in the theory of causation. The adherents of each school try to explain the causation of
crime and criminal behaviour in their own way relying on the theory propounded by the
exponent of that particular school. It is therefore, evident that each school of
criminology explains crime in its own manner and suggests punishment and preventive
measures to suit its ideology. It must be stated that each of the school represents the
social attitude of people towards crime and criminal in a given time.
In an attempt to find a rational explanation of crime, a large number of theories
have been propounded. Various factors such as evil spirit, sin, disease, heredity,
economic maladjustment etc. have been put forward cither singly or together to explain
criminality. With the advance of behavioural sciences, monogenetic explanation of
human conduct is no longer valid and the modem trend is to adopt an eclectic view
about the genesis of crime. However, some criminologists still tend to lay greater
emphasis on physical traits in order to justify exclusive resort to correctional methods
for the treatment of offenders.
1. Pre-classical School of Criminology yn

The period of seventeenth and eighteenth century in Europe Was dominated by
the scholasticism of Saint Thomas Acquinas. The dominance of religion in State
activities was the chief characteristic of that time. In politic sphere, thinkers such as
Hobbes and Locke were concentrating on social contract as the basis of social
evolution. The concept of Divine right of king advocating supremacy of monarch was
held in great esteem. As scientific knowledge was yet unknown, the concept of crime
was rather vague and obscure. There was a on general belief that man by nature is
simple and his actions are controlled by some super power. It was generally believed
that a man commits crime due to the influence of some external spirit called 'demon'
or 'devil'. Thus, an offender commits a wrongful act not because of his own free will
but due to the it. influence of some external super power. No attempt was, however,
made to probe into the real causes of crime. This demnological theory of criminality
propounded by the exponents of pre-classical school acknowledged the omnipotence
of spirit, which they regarded as a great power. They considered crime and criminals
as an evidence of the fact that the individual was possessed of devil or demon the only
cure for which was testimony of the effectiveness d the spirit. Worships, sacrifices
and ordeals by water and fire were usually prescribed to specify the spirit and relieve
the victim from its evil influence, Trial by battle was common mode of deciding the
fate of criminal. The right og society to punish the offender was, however, well
recognised. The offender was regarded as an innately depraved person who could be
cured only by torture: and pain. The evolution of criminal law was yet at a
rudimentary stage. Hobbes suggested that fear of punishment at the hands of monarch
was a sufficient: deterrent for the members of early society to keep them away from
sinful acts which were synonymous to crimes. Thus, the theosophists, notably St.
Thomas. Acquinas and the social contract writers such as Donte Alighieri, Machiavetli,
Martin Luther and Jean Bodin provided immediate background for Beccaria's\ classical
school at a later stage. The pre-classical thinking, however, withered away with the
lapse of time and advancement of knowledge.
The principle of divine intervention especially through ordeals was in vogue in
ancient India as well. The oaths and ordeals played a very important! role in the
ancient judicial system in determining the guilt of the offender. The! justification
advanced for these rituals was the familiar belief that "when the human agency fails,
recourse to divine means of proof becomes most! inevitable". Though these practices
appear to be most irrational and barbarious! to the modem mind, they were
universally accepted and were in existence in most Christian countries till thirteenth
century.53 The Roman law completely I ignored the system of ordeals and it was
forbidden in Quran.
The validity of trial by ordeal was questioned even by ancient authorities 1 such
as Purvapaksa but eversince the time of Manu it has been repeatedly argued 1 that
ordeals are the creations of Brahma and have been practised by gods, great I sages and
all thoughtful persons. Medhatithi further pointed out that ordeals 1 have worked
efficiently since time of sages and there are examples of Vasistha, 1
Vatsa and others who tried such tests with success.54 The system, however, fell into disuse
with the advent of British rule in India and subsequent rationalisation of the penal law.
2. The Classical School
During the middle of eighteenth century Beccaria, the pioneer of modem criminology
expounded his naturalistic theory of criminality by rejecting the omnipotence of evil
spirit. He laid greater emphasis on mental phenomenon of the individual and attributed
53 A Dubois : Hindu Manners, Customs & Ceremonies (1936) p. 661.

54 Quoted from Dr. S.N. Pendse's Oaths & Ordeals in Dharmashastra (1985 ed.), pp.
83-84.
The Schools of Criminology 37
crime to ‘free will' of the individual. Thus, he was much influenced by the utilitarian
philosophy of his time which placed reliance on hedonism, namely, the "pain and
pleasure theory". As Donald Taft rightly put it, this doctrine implied the notion of
causation in terms of free choice to commit crime by rational man seeking pleasure and
avoiding pain. The main tenets of classical school55 of criminology are noted below :
(i) Man's emergence from the State's religious fanaticism involved the
application of his reason as a responsible individual.
(ii) It is the act of an individual and not his intent which forms the basis for
determining criminality within him. In other words, criminologists are
concerned with the 'act' of the criminal rather than his ‘intent'. Still, they could
never think that there could be something like crime causation.
(iii) The classical writers accepted punishment as a principal method of infliction
of pain, humiliation and disgrace to create 'fear' in man to control his
behaviour.
(iv) The propounders of this school, however, considered prevention of crime
more important than the punishment for it. They therefore, stressed on the
need for a Criminal Code in France, Germany and Italy to systematise
punishment for forbidden acts. Thus, the real contribution of classical school
of criminology lies in the fact that it underlined the need for a well defined
criminal justice system. Beccaria, in his historic work on CRIMES AND
PUNISHMENTS denounced retributive basis of punishment and observed
that the aim of punishment should only be to prevent the criminal from
committing new crimes against his countrymen, and to keep others from
doing likewise. Therefore, the punishments and the method of inflicting them,
should be close in proportion to crime so as to make the most efficacious and
lasting impression on the mind of men and the least painful impressions on
the body of the criminal.
(v) The advocates of classical school supported the right of the State to punish
the offenders in the interest of public security. Relying on the hedonistic
principle of pain and pleasure, they pointed out that individualisation was to
be the basis of punishment. This in other words meant that punishment was to
be awarded keeping in view the pleasure derived by the criminal from the
crime and the pain caused to the victim from it. For the punishment to be
efficacious, it is enough that the disadvantage of the punishment should
exceed the advantage anticipated from the crime; in which the emphasis
should be on the certainty of punishment and the loss of the expected benefit.
Everything beyond this, accordingly, is surplus and, therefore, tyrannical.
(vi) The exponents of classical school further believed that the criminal law
primarily rests on positive sanctions. They were against the use of arbitrary
powers of Judges.56 In their opinion the Judges should limit their verdicts
strictly within the confines of law. They also abhorred torturous
punishments. Thus, judicial discretion is of seminal value while awarding
the maximum punishment, reasons must be detailed and specific.
Thus, classical school propounded by Beccaria came into existence as a result of the
influence of writings of Montesquie, Hume, Bacon and Rousseau. His famous work Essays on
Crimes and Punishment received wide acclaimation all over Europe and gave a filip to a
new criminological thinking in the contemporary west. He sought to humanise the
criminal law by insisting on natural rights of human beings. He raised his voice against
55 The main exponents of Classical School were William Blackstone (1723-80), Jeremy
Bentham (1748-1832), Samuel Romilly (1757-1878) Feuerbach (1775-1833), Robert
Peel ; Rossi Rane Gorraud, etc.
56 Sen P.K. : Penology—Old and New (1943) p. 44.
severe punishment, torture and death penalty. Bcccaria's views on crime and punishment
were also supported by Voltaire as a result of which a number of European countries
redrafted their penal codes mitigating the rigorous barbaric punishments and some of
them even went to the extent of abolishing capital punishment from their Penal Codes.
The contribution of classical school to the development of rationalised
criminological thinking was by no means less important, but it had its own pitfalls. The
major shortcoming of the classical school was that it proceeded on an abstract
presumption of free will and relied solely on the act (i.e., the crime) without devoting any
attention to the state of mind of the criminal. It erred in prescribing equal punishment for
same offence thus making no distinction between first offenders and habitual criminals
and varying degrees of gravity of the offence. However, the greatest achievement of this
school of criminology lies in the fact that it suggested a substantial criminal policy which
was easy to administer without resort to the imposition of arbitrary punishment. It goes to
the credit of Beccaria who denounced the earlier concepts of crime and criminals which
were based on religious fallacies and myths and shifted emphasis on the need for
concentrating on the personality of an offender in order to determine his guilt and
punishment. Beccaria’s views provided a background for the subsequent criminologists to
come out with a rationalised theory of crime causation which eventually led the
foundation of the modern criminology and penology.
3. Neo-classical School
The 'free will' theory of classical school did not survive for long. It was soon
realised that the exponents of classical school faultered in their approach in ignoring the
individual differences under certain situations and treating first offenders and the
habituals alike on the basis of similarity of act or crime. The neo-classists asserted that
certain categories of offenders such as minors, idiots, insane or incompetent had to be
treated leniently in matters of punishment irrespective of the similarity of their criminal
act because these persons were incapable of appreciating the difference between right
and wrong. This tendency of neo-classists to distinguish criminals according to their
mental depravity was indeed a progressive step inasmuch as it emphasised the need for
modifying the classical view. Thus, the contribution of neo-classical thought to the
science of criminology has its own merits. The main tenets of neo-classical school of
criminology can be summarised as follows :
(i) Neo-classists approached the study of criminology on scientific lines by
recognising that certain extenuating situations or mental disorders deprive a
person of his normal capacity to control his conduct. Thus, they justified
mitigation of equal punishment in cases of certain psychopathic offenders.
Commenting on this point, Prof. Gillin observed that neo-classists represent a
reaction against the severity of classical view of equal punishment for the
same offence.
(ii) Neo-classists were the first in point of time to bring out a distinction between
the first offenders and the recidivists. They supported individualisation of
offender and treatment methods which required the punishment to suit the
psychopathic circumstances of the accused. Though the 'act', i.e., the criminal
act still remained the sole determining factor for adjudging criminality
without any regard to the intent, but the neo-classists focused at least some
attention oh mental causation indirectly.
(iii) The advocates of this school started with the basic assumption that man
acting on reason and intelligence is a self-determining person and therefore,
is responsible for his conduct. But those lacking normal intelligence or
having some mental depravity are irresponsible to their conduct as they do
not possess the capacity of distinguishing between good or bad and therefore
should be treated differently from the responsible offenders.

(iv) Though the neo-classists recommended lenient treatment for "irresponsible"
or mentally depraved criminals on account of their incapacity to resist
criminal tendency but they certainly believed that all criminals, whether
responsible or irresponsible, must be kept segregated from the society.
(v) It is significant to note that distinction between responsibility and
irresponsibility, that is the sanity and insanity of the criminals as suggested
by neo-classical school of criminology paved way to subsequent formulation
of different correctional institutions such as parole, probation, reformatories,
open-air camps etc. in the administration of criminal justice. Thus, it is
through this school that attention of criminologists was drawn for the first
time towards the fact that all crimes do have a cause. It must, however, be
noted that though this causation was initially confined to psychopathy or
psychology but was later expanded further and finally the positivists
succeeded in establishing reasonable relationship between crime and
environment of the criminal.
(vi) Neo-classists adopted subjective approach to criminology and concentrated
their attention on the conditions under which an individual commits crime.
Thus, it would be seen that the main contribution of neo-classical school of
criminology lies in the fact that it came out with certain concessions in the ‘free zuill’
theory of classical school and suggested that an individual might commit criminal acts
due to certain extenuating circumstances which should be duly taken into consideration at
the time of awarding punishment. Therefore, besides the criminal act as such, the
personality of the criminal as a whole, namely, his antecedents, motives, previous life-
history, general character, etc., should not be lost sight of in assessing his guilt. It may be
noted that the origin of jury system in criminal jurisprudence is essentially an outcome of
the reaction of neo-classical approach towards the treatment of offenders.
As to the shortcomings of neo-classical school of criminology, it must be stated that
the exponents of this theory believed that the criminal, whether responsible or
irresponsible, is a menace to society and therefore, needs to be eliminated from it. As
Saleilles observed : "the protection of society from crimes must be our primary concern".
He considered responsibility as a concept of social organisation which the exponents of
neo-classical school seek to convert into metaphysical and abstract notion without
corresponding reality. These abstract notions of 'free will' and 'responsibility' cannot
furnish legal ground for Judges and juries to form a basis for their discretion.
4. Positive School
With the advance of behavioural sciences, the monogenetic explanation of human
conduct lost its validity and a new trend to adopt an eclectic view about the genesis of
crime gradually developed. By the nineteenth century, certain French doctors were
successful in establishing that it was neither ‘free will' of the offender nor his innate
depravity which actuated him to commit crime but the real cause of criminality lay in
anthropological features of the criminal. Some phrenologists also tried to demonstrate the
organic functioning of brain and enthusiastically established a co-relationship between
criminality and the structure and functioning of brain. This led to the emergence of the
positive school of criminology. The main exponents of this school were three eminent
Italian criminologists, namely, Cesare Lombroso, Raffaele Garofalo and Enrico Terri. It is for
this reason that this school is also called the Italian School of Criminology.
Cesare Lombroso (1836-1909)
The first attempt to understand the personality of offenders in physical terms was
made by Lombroso of the Italian School of criminological thought, who is regarded as the
originator of modern criminology. He was educated in medicine and became a specialist
in psychiatry. He worked in military for sometime handling the mentally afflicted soldiers
but later he was associated with the University of Turin. His first published work was
L'Umo Delequente which meant "the criminal man". It was published in 1876 and consisted
of 252 pages, the fifth edition of which came out in 1897 in 1903 pages. He was the first
to employ scientific methods in explaining criminal behaviour and shifted the emphasis
from crime to criminal.
Lombroso adopted an objective and empirical approach to the study of criminals
through his anthropological experiments. After an intensive study of physical
characteristics of his patients and later on of criminals, he came to a definite conclusion
that criminals were physically inferior in the standard of growth and therefore,
developed a tendency for inferior acts. He further generalised that criminals are less
sensitive to pain and therefore, they have little regard for the sufferings of others.57
Through his biological and anthropological researches on criminals Lombroso justified
the involvement of Darnin's theory of biological determinism in criminal behaviour. He
classified criminals into three main categories :—
(i) The Atavists or hereditary criminals.—Lombroso also termed them as born-
criminals. In his opinion born-criminals were of a distinct type who could not refrain
from indulging in criminality and environment had no relevance whatsoever to the
crimes committed by the Atavists. He, therefore, considered these criminals as
incorrigibles, i.e., beyond reformation. In his view, offender or the criminal reflected a
reversion to an early and more primitive stage of mankind when individuals were both
mentally and physically inferior. They resembled those of apes and possessed ape-like
characteristics. Lombroso's theory used physical characteristics as indicators of
criminality. He enumerated as many as sixteen physical abnormalities of a criminal some
of which were of peculiar size and shape of head, eye, enlarged jaw and cheek bones,
fleshy lips, abnormal teeth, long or flat chin, retreating forehead, dark skin, twisted nose
and so on. Though he moderated his theory of physical anomaly in later years but his
emphasis throughout his work was on human physical traits which also included
biology, psychology and environment. He revised his theory of atavism in 1906 and held
that only one-third of criminals were born criminals and not all the criminals. Finally, he
conceded that his theory of atavism was ill-founded and held that they were in fact
occasional criminals.
Enrico Ferri subsequently challenged Lombroso's theory of atavism and demonstrated
that it was erroneous to think that criminals were incorrigible. He believed that just as
non-criminals could commit crimes if placed in conducive circumstances so also the
criminals could refrain from criminality in healthy and crime-free surroundings.
(ii) Insane Criminals.—The second category of criminals according to Lombroso
consisted of insane criminals who resorted to criminality on account of certain mental
depravity or disorder.
(iii) Criminoids.—The thud category of criminals according to him, was those of
criminoids who were physical criminal type and had a tendency to commit crime in order
to overcome their inferiority in order to meet the needs of survival.
Lombroso was the first criminologist who made an attempt to understand the
personality of offenders in physical terms. He employed scientific methods in explaining
criminal behaviour and shifted the emphasis from crime to criminal. His theory was that
criminals were physically different from normal
57 Taft : Criminology 4th Ed. p. 64.

v/» II 1111 luiwyy at IU rCl luiuyy
persons and possessed few physical characteristics of inferior animal world. The
contribution of Lombroso to the development of the science of criminology may briefly
be summed up in the following words.
"Lombroso, laid consistent emphasis over the individual personality of the | criminal
in the incidence of crime. This view gained favour in subsequent years and modem
criminological measures are devised to attain the aim of individualisation in the
treatment of criminals." It has therefore, been rightly commented that the sociologists
emphasise on the external factors, psychologists on the internal factors, while Lombroso
held that both had a common denominator—the "individual".
While analysing causes of crime, Lombroso laid greater emphasis on the biological
nature of human behaviour and thus indirectly drew attention of criminologists to the
impact of environment on crime causation.
It must, however, be stated that at a later stage Lombroso himself was convinced
about the futility of his theory of atavism and therefore extended his theory of
determinism to social as well as economic situations of criminals. Thus, he was positive
in method and objective in approach which subsequently paved way to formulation of
multiple-causation theory of crime by the propounders of sociological school of
criminology.
Goring, an English criminologist, who was one of the contemporaries of Lombroso,
also carried out his own researches on the psychology of criminals. After a series of
comparisons between the criminals and non-criminals he concluded that there was
nothing like 'physical-criminal type' as suggested by Lombroso. He, attacked the idea that
people were more or less criminologenic, depending upon their physical characteristics.
He opposed the view that criminality could be inherited. Katherine S. Williams has
illustrated the difference between the views held by Lombroso and Goring by an example
drawn from basket-ball. If we apply the Lombrosian theory to basket-ball players, the
argument might be that they are abnormal because they are tall, whereas Goring's
argument would be that they have been selected for that sport because of their tall
stature.1 Goring, however, agreed with Lombroso's statistical and inductive method and
supported the latter's view that criminals were often mentally depraved. He also
commended Lombroso for his assertion that central theme of penology was neither crime
nor punishment, but the 'individual'.
Gabriel de Tarde, the eminent French criminologist and social psychologist, critised
Lombroso's anthrometric measurements on which he formulated his theory of criminal
behaviour, and offered a social explanation of crime. He asserted that criminal behaviour
is the result of a learning process, therefore, any speculation regarding direct relationship
between physical appearance and criminal propensities of criminals would mean
overlooking the real causes of criminality. He also denounced the proposition of
phrenologists who tried to establish a correlation between the skull, the brain and the
social behaviour of a person.
By the time of Lombroso's demise in 1909 it became abundantly clear that his
theories were over-simplication of facts and rather naive, hence the notion that criminal is
physically atavistic-type lost all credence. The assumption that
1. Katherine S. Williams : Text Book on Criminology (First Indian Reprint, 2001) p.
147.
there is some nexus between atavism and criminal behaviour had no scientific basis. The
modem positivism in criminology has developed its own systematic views in which there
is little scope for Lombroso's atavism. Some modem writers even speak of it as
‘Lombrosian myth’ in criminology. The critics notably, Lindesmith and Levin even alleged
that Lombroso's faulty assumptions were responsible for hindering the growth of
scientific criminology for few more decades.
Criticising Lombroisian views, Prof. Sutherland observed that by shifting attention
from crime as a social phenomenon to crime as an individual phenomenon, Lombroso
delayed for fifty years the work which was in progress at the time of its origin and in
addition, made no lasting contribution of his own.58
Be that as it may, it hardly needs to be reiterated that contribution of Lombroso to
the development of criminology is by no means less significant. Commenting on this
point Donald Taft observed, "the importance of Lombroso's work lies in the great influence
it had upon criminology and also upon penal practice".59 The importance of Lombroso's
work lies in its scientific methodology and his rejection of free-will theory.
Enrico Ferri (1856-1928)
Another chief exponent of the positive school of criminology was Enrico Ferri.60 He
challenged Lombrosian. view of criminality. Through his scholarly researches, Ferri
proved that mere biological reasons were not enough to account for criminality. He
firmly believed that other factors such as emotional reaction, social infirmity or
geographical conditions also play a vital role in determining criminal tendencies in men.
It is for this reason that he is sometimes called the founder of 'criminal sociology.'
The major contribution of Ferri to the field of criminology is his "Law of Criminal
Saturation". This theory presupposes that the crime is the synthetic product of three main
factors :—
(1) Physical or geographical;
(2) Anthropological; and
(3) Psychological or social.
Thus, Ferri emphasised that criminal behaviour is an outcome of a variety of factors
having their combined effect on the individual. According to him social change, which is
inevitable in a dynamic society ; results in disharmony, conflict and cultural variations.
As a result of this, social disorganization takes place and traditional patterns of social
control mechanism totally break down. In the wake of such rapid sc ial changes, the
incidence of crime is bound to increase tremendously. The heterogeneity of social
conditions destroys the congenial social relationship, creating a social vacuum which
proves to be a fertile ground for criminality.
Many critics, however, opposed Ferri's law of criminal saturation stating
58 Sutherland & Cressey : The Principles of Criminology (6th Ed) p. 55.

59 Taft : Criminology (1959), p. 80.
60 Enrico Ferri's "Criminal Sociology" is an outstanding work in the field of criminology. During
Mussolini's regime, Ferri prepared a new Penal Code for Italy in 1921. This was popularly called the
‘Ferri Project’.

that it is nothing more than a statement that the law of cause and effect equally
applies to criminal behaviour as well.
Ferri emphasised that a criminal should be treated as a product of the conditions
which played his life. Therefore, the basic purpose of crime prevention programme
should be to remove conditions making for crime.
Ferri worked out a five-fold classification of criminals, namely :
(1) born criminals ;
(2) occasional criminals ;
(3) passionate criminals ;
(4) insane criminals ; and
(5) habitual criminals.
He suggested an intensive programme of crime prevention and recommended a
series of measures for treatment of offenders. He asserted that punishment could be one
of the possible methods of reforming the criminal. He favoured indeterminate sentence
keeping in view the possible chances of inmate's re-adjustment in the community.
In his 'Penal Project' Ferri denied moral responsibility and denounced punishment
for retribution and moral culpability.
Raffaele Garofalo (1852-1934)
Raffaele Garofalo was one of the three main exponents of positive school of
criminology. Born in Naples in 1852, Garofalo started his career as a Magistrate in Italian
courts and rose to the position of Minister of Justice in 1903. He stressed the need for a
closer study of the circumstances and living condition of criminals. He firmly believed
that a criminal is a creature of his own environment. He was the only positivist who had
varied experience as an eminent jurist, a senator and a professor of criminal law. He,
therefore, approached the problem of crime and criminals in an altogether different
manner than those of his contemporaries. Rejecting the classical theory of free-will as a
cause of crime, Garofalo defined crime as an act which offends the sentiments of pity and
probity possessed by an average person and which are injurious to the society. He
emphasised that lack of pity generates crimes against person while lack of probity leads
to crimes against property. As to the classification of criminals, he rejected Ferri's
classification and placed offenders into four main categories, namely :
(1) murderers whom he called "endemic" criminals ;
(2) violent criminals who are affected by environmental influences such as
prejudices of honour, politics and religion ;
(3) criminals lacking in sentiment of probity ; and
(4) lascivious or lustful criminals who commit crimes against sex and chastity.
As a member of the Italian 'judiciary', Garofalo was well acquainted with the then
existing criminal law and procedure in the administration of criminal justice and
recommended death, imprisonment for life or transportation and reparation as three
modes of punishment for criminals. Out of his experience as a Judge and having
witnessed total failure of correctional measures in France, Garofalo was not very
optimistic about reformation of offenders. He therefore, strongly pleaded for elimination
of habitual offenders who were incapable of social adaptation as a measure of social
defence..
Gabriel Tarde (1843-94)
Gabriel Tarde was a critic of positive school of criminology. He asserted that
influence of social environment was most emphatic on the criminal behaviour and the
biological and physical factors only had a casual effect on it. He pointed out that law of
insertion and imitation was responsible for the incidence of crime. The members of
society are prone to imitate the behaviour of their associates. Likewise, the subordinate
or inferior members have a tendency to imitate the ways of their superiors just as the
children imitate their parents and elder members of the family. Consequently, as regards
crimes, the beginners have a tendency to imitate the acts of habitual criminals and thus
they lend into criminality. The effect of imitation is still worse on youngsters who are
prone to fall on easy prey to criminality. Particularly, the impact of movie, cinema and
television is so great on teenagers that it perverts their mind and actions which
eventually makes them delinquents. Thus, there is considerable truth in Tarde's assertion
that, "crime, like other social phenomenon starts as a fashion and becomes a custom".
He classified criminals into urban and rural types and expressed a view that crimes in
urban areas are far more serious in nature than those of rural places. Despite the fact that
the views of Tarde were logical and nearer to truth, they were discarded as over-
simplification of facts.
An appraisal of Positive School of Criminology
It would be seen that the positive school of criminology emerged essentially out of
the reaction against earlier classical and neo-classical theories. The advocates of this
school completely discarded the theories of omnipotence of spirit and free will on the
ground that they were hypothetical and irrational. Alternatively, they attributed
criminality to anthropological, physical and social environment. The greatest
contribution of positive school to the development of criminal science lies in the fact
that the attention of criminologists was drawn for the first time towards the individual,
that is, the personality of criminal rather than his act (crime) or punishment. This
certainly paved way for the modern penologists to formulate a criminal policy
embodying the principle of individualisation as a method and reformation. Thus,
positivists introduced the methodology and logic of natural science in the field of
criminology.
With the predominance of positive school, the emphasis was shifted from penology
to criminology and the objects of punishment were radically changed inasmuch as
retributory methods were totally abandoned. Criminals were now to be treated rather
than punished. Protection of society from criminals was to be the primary object which
could be achieved by utilising reformatory methods for different classes of criminals in
varying degrees. It is in this context that positive school is said to have given birth to
modem sociological or clinical school which regards criminal as a by-product of his
conditions and experience of life.
The positivists suggested elimination of only those criminals who did not respond
favourably to extra-institutional methods. The exponents of this school accepted that
there could be extenuating circumstances under which an individual might be forced to
commit crime. Therefore, besides looking to the crime strictly from the legal standpoint,
the judicial authorities should not lose sight of the circumstantial conditions of the
accused while determining his guilt and awarding punishment.
The positive school differed from the classical school of criminology in the
following manner :—
Classical School Positive School
(1) This school defined crime in legal committing the same offence.
terms.
(2) It placed reliance on free-will theory (4) It focussed greater attention on

as an explanation of crime. crime, namely, the act rather than
(3) It believed in deterrent and definite the criminal.
punishment for each offence and (5) The main exponents of classical
equal punishment for all criminals school were Beccaria and Bentham.
(6) It was a 18th century dogma which
released on parole for reasonable spells in such cases.

attempted to reform the criminal
justice system in order to protect
criminals against arbitrary discretion
of judges.
(1) It rejected legal definition of crime
and preferred, sociological
definition.
(2) It explained crime in terms of
biological determination.
(3) It advocated treatment methods for
criminals instead of punishment and
held that criminal be punished not
according to gravity of his crime but
according to the circumstances
associated with it.
(4) It laid greater emphasis on
personality of the offender rather
than his criminal act.
(5) The main exponents were Lombroso,
Ferri and Garofalo.
(6) It was a 19th century doctrine which
emphasised on scientific method of
study and shifted emphasis from
crime to criminal and from
retribution to corrective methods of
treatment.
combination of internal and external factors, therefore, punishment should depend

on personality of the accused. This is known as correctional trend of reformation
through individualisation.
(6) Sociological School of Criminology
Before concluding this discussion, a word must be said about the recent
sociological school of criminology which seeks to locate causation of crime in social
environment. As stated earlier, Tarde was the first to reject the anthropological
approach of positivists and held that crimes were the outcome of human tendency to
imitate others. Sociologists, however, carried their researches and attempted to co-
relate variations in crime rate to changes in social organisation. They successfully
established that other factors such as mobility, culture, religion, economy, political
ideologies, density of population, employment situations, etc., have a direct bearing
on the incidence of crime in a given society. Placing reliance on these multiple
causes, Sutherland sought to explain various processes through which a person
becomes criminal. In his theory of Differential Association he suggested that human
personality and culture are directly related and a person becomes a criminal mostly
by the chain of circumstances in which he associates or moves. It is for this reason
that sociological school has often been characterised as a rational school of
criminology which recommends the application of humanitarian methods for
treatment of offenders. The persons prone to criminality should be corrected through
pursuasive methods rather than traditional punitive methods. However, the
advocates of recent 'multiple factor theory', while explaining causation of crime,
contemplate that crime is a product of a great variety of factors which cannot be
reduced into general propositions. In other words, no specific theory of criminal
behaviour is ever possible. Thus, crimes are caused due to combination of a number
of factors or circumstances. But this view has been vehemently criticised by Cohen
on the ground that the advocates of multiple factor theory have confused 'factors'
with 'causes', of crime. He further states that it is erroneous to locate 'causes' of
crime in the 'factors' because the latter can readily be eliminated without changing
the social environment.61
The Modern Criminology
In recent years, there seems to have been a transformation of criminological
views regarding somewhat sceptical question of criminal accountability. Modern
critics attack the traditional criminological view on the ground that their search for
characteristic differences between the class of criminals and the class of non-
criminals rests upon erroneous assumption.62 This false dichotomy has been based on
a misconceived characterisation of criminals as 'criminal type'. As Michael Phillipson
aptly observes that to take crime out of its social context and to try to explain it as a
product of physical characteristics or mental deficiencies is a myth. He summarises
his criticism of traditional criminology by suggesting that it contains four false
assumptions, namely,—
(1) that there are universal causes of crime;
(2) that the human population can be divided into two groups,
61 For details of Sociological School, see Chapter V, infra.

62 'Law And Society—The Crisis in Legal Ideals' edited by Kamenka, Robert Brown and Alice
Tay, p. 81.
criminals and non-criminals;

(3) that crime can be located by the study of individual criminals; and
(4) that the official statistics are indices of trends in crime.
The proponents of modem criminology attempt to explain criminality in terms
of social conflict. Engels (1971) pointed out that resentment among the deprived
class of society due to their exploitation and demoralisation was one of the reasons
for growing criminality. Therefore, there was need to change the whole of the social
and economic structure of society. Thus, modem criminology attributes societal
reasons for general criminality and suggests a pragmatic approach to the resolution
of the problem.
The advocates of modern criminology firmly believe that distinction between
criminals and non-criminals is the direct outcome of a mistaken notion of labelling
certain individual offenders as 'criminal types'. Modem criminologists prefer to
identify the criminal with a particular social type who has been a victim of well
known inequalities between social classes, private wealth, private properly, social
power, and life chances. Thus, there is nothing like 'criminal type' as suggested by
traditional criminologists. The modem criminologists have succeeded in substituting
the traditional belief regarding crime causation by social deviance as a cause of
criminal behaviour.
Modern Labelling Theory of Crime
The labelling theory was propounded by Tannenbaum in 1938 who believed
that tagging, defining, identifying, segregating and describing criminals by labelling
them under different heads was helpful in treatment of offenders. Thereafter Lemert
(1951) preferred to label offenders as persons with primary deviance and secondary
deviance. The former do not see themselves as deviant whereas the latter accept
their deviant status. According to Lemert primary deviance arises out of biological,
psychological and or sociological reasons while the secondary deviance is caused by
social reaction to primary deviation. Therefore societal reaction has a direct bearing
on these two deviant types.
Being a 'criminal' becomes a matter of status for these deviants and because of
this self-image, there is a constant pressure on them to behave as a deviant.
The modern labelling theory, however, recognise that 'societies' create crime
by enacting laws and therefore the substantive nature of law should be the object of
study. Sometimes these are called criminalization theories and they have some
resemblance to societal reaction to crime.
According to Ditton (1979), labelling theories which focus on State power to
control crime are considered as branches of controlology. They treat criminal justice
agencies as part of social control mechanisms, like education, mental health, mass
media all of which are used by the State for crime control. The ultimate goal
according to these theorists is to control troublesome population of criminals.
John Braithwaite modelled his reintegrative theory on social control which he
called as shaming. There are two types of social control viz. reintegrative and
disintegrative.
Reintegrative social control implies bringing the offender back into the fold of
society while disintegrative social control focuses on shunning the offender from
society for social good. Braitlnuaite argues that disintegrative shaming (social order)
creates a class of outcasts who indulge into criminality as they find it difficult to
return back to society as law-abiding citizens. They therefore become more
entrenched in crime as a result of being branded as criminals.
The reintegrative shaming, however, can be accomplished if there is societal

gesture of forgiveness and readiness to decertify the offenders as deviant. In modem
civilised societies urbanisation, heterogeneity, mobility and excessive materialism
have led to an increase in deviants back at the same time States are endeavouring to
afford them opportunities to shun deviant role and come back to the social fold as
normal citizens.
Howard Becker (1963) developed his theory of labelling (also known as social
reaction theory) on the assumption that people are likely to engage in rule-breaking
behaviour as essentially different from the members of rule-making or rule-abiding
society. The law-breakers see themselves morally at odds with those who are law-
abiding. Becker labels these law-breakers as "outsider" and holds that they accept the
label attached to them and they begin to view themselves as different from
"mainstream" of society. The deviants first indulge in primary deviance intentionally
or unintentionally and gradually step into the arena of secondary deviance. A
deviant who is denied means to carry out daily routines, turns to illegitimate means
to make a living. The affiliation of the labelled deviant with an organised group of
criminals provides him moral support and he joins the organised crime thus learning
new forms of deviance through differential associations.
Becker recognises four types of citizens according to their behaviour in society
labelling them differently. The numbers of society that are rule-abiding and free of
labels are described as conforming citizens, while those who are labelled without
breaking a law are termed as falsely accused. Those citizens who exhibit law-
breaking behaviour are labelled as pure deviants, while those that break law yet
avoid labelling are called secret deviants.
It must be stated that Becker's theory of labeling though popular has
encountered several criticisms. Many sociologists and criminologists view this
theory as a purely theoretical approach to crime and criminals without any empirical
basis. The distinction between primary and secondary deviance seems to be futile as
it is influenced by changing variables.
The challenge to labelling theory on theoretical and empirical grounds seems to
be justified. Some criminologists view labelling theory as declining in its importance
due to lack of empirical support.
Some sociologists have called the labelling theory as "the shoe fits, wear it"
theory. It suggests that society makes deviance by passing laws infringement of
which constitutes deviance and the law-breakers are labelled as 'deviants'. Deviance,
according to this theory is not the act that a person commits, but rather a
consequence of the application by others, of rules, laws and sanctions to the
"offender". A deviant is one to whom people so label.
As Calhoun rightly pointed out labelling theory is especially crucial to
understanding juvenile delinquency because it is during the time of adolescence
that juvenile's self-identities are formed. Labelling theory also helps to explain the
long-term consequences of a deviant label on a person's social status. Thus, if a
juvenile is labelled as deviant or delinquent, then his self-identity may develop as
such and he will be more prone to become a hardened criminal. Because of his/her
negative self-concept he or she is likely to choose a crime carrier and associate with
other professional or organised groups of criminals.
It may be stated that modern criminologists lay greater stress on multiple
causation theory because they consider crime as a social phenomenon, the political
society reacting through punishment, treatment or preventive measures as the
sequence of interaction is the ultimate object of criminology. They suggest that

social control mechanism must be very selective in the legal norms for enforcement
in their disposition of law violators. They advocate restructuring the existing social
arrangements to eliminate crime from society.
The current theory of Indian criminal jurisprudence is based on seven
fundamental notions, viz., the principle of legality, mem reel, conduct, consequence of
mens rea and conduct, harm, causation and punishment. With the change in time, the
criminal law has radically changed and the concept of criminal liability therefore,
faces new problems.1 Consequently, there is need for complete replacement of
punishment by recent rehabilitative measures for certain categories of offenders so as
to make the administration of criminal justice efficacious and meaningful.
It must, however, be realised that mere treatment of offenders in correctional
institutions does not help in their ultimate rehabilitation as it does not ward off the
stigma which the society attaches to the released inmates. Considered from this
standpoint, the punishment of the offender does not end with the termination of his
institutional incarceration but it continues as a life-long record, making it difficult for
an offender to go back to the community as a decent law-abiding citizen despite his
genuine and sincere efforts to lead an honest and up-right life. This problem can be
effectively tackled by developing adequate after-care services as an integral part of
the correctional method of treatment of offenders. Unfortunately, this important
aspect of rehabilitative process has, by and large, remained neglected in the present-
day Indian penal system. Though there are some shelter-homes and after-care centres
in some States, but they are hardly sufficient to cater to the needs of ever-increasing
number of released prisoners.
Before concluding, it must be stated chat the modem trend in penology and
sentencing procedures is to emphasise the humanist principle of individualisation of
punishment to suit the offender and his resocialisation. The penal policy should be
aimed at protecting the society by preventing crime. It must be accepted that
punishment is institutionalised violence and it can be justified only when it deters the
offender from committing the offence in future and also deters others from indulging
in criminal acts. While choosing any system of punishment the intended effects
thereof need to be considered very carefully. Unduly tough measures of punishment
would lead to feelings of resentment and rejection which would frustrate the very
purpose of penal justice. The punishment should be severe enough to deter but not
too severe to be brutal. Likewise, it should be moderate enough to be human but not
too
moderate to be ineffective. It has to be so designed as to reform the offender and
reclaim him as a law abiding member of the society. The focus of attention should
be to make the offender realise that the offence which he has committed is not only
harmful to the society of which he is an integral part, but is harmful to his own
future as well. It is only then, that the true object of penology can be said to have
been achieved.
Causation of Crime
C rime has been a baffling problem ever since the dawn of human civilization and
man's efforts to grapple with this problem have only partially succeeded. There is
1. 25 JILI (1983) p. 579.

Chapter IV
hardly any society which is not beset with the problem of crime and criminality. As
rightly pointed out by Emile Durkheim, crime is a natural phenomenon which is constantly
changing with the social change.
Criminologists have always differed in their views regarding crime causation.
Continental criminologists often support the endogenous theory of criminality which is
founded on bio-physical consideration of criminals. The American criminologists on the
other hand, are more inclined to explain criminality in terms of social factors. Thus, the
former approach the problem of crime causation subjectively while the latter are
objective in their approach. The adherents of subjective theory of criminality seek to
examine the nature of the criminals besides other aspects of his personality. They believe
that criminals differ from non-criminals in certain traits of their personality which
develops unusual tendencies in them to commit crimes under situations in which others
do not. They further argue that criminality is necessarily an expression of the unique
personal traits of the criminal and therefore in such cases social situations do not offer a
satisfactory explanation for criminal behaviour. This subjective approach to crime
causation has eventually led to the evolution of typological school of criminology which
suggests that there are certain personality type of criminals who take to criminality
because of their heredity, psychopathic and bio-physical traits. It is thus clear that
subjective aspect of crime causation includes anthropological, biological, physiological
and psychiatric study of the offender as against the objective approach which insists on
analysis of socio-economic, ecological, topographical and cultural environment under
which crimes usually generate.
Heredity and Crime
Lombrosian anthropologists through their biological and anthropological researches
succeeded in establishing a correlation between heredity of the criminal and his
criminogenic tendencies. The psychiatrists, on the other hand, located crime in mental
depravity of the criminals. The psychologists explained crime in terms of personality
deviations.
Lombroso was the first criminologist to correlate crime with the heredity of the
criminal. His influence on contemporary criminologists was so great that they also
accepted Lombroso's view that heredity was the sole cause of criminal behaviour of the
offender. Lombroso asserted that there are certain criminals who imbibe criminality by
birth. He called them atavists and held that such criminals were incorrigibles. He
attributed this atavistic tendency in them due
Causation of Crime 53
to hereditary influences.1 Modern researches have, however, shown that hereditary

influences have little effect on criminality. As a result of persistent studies carried on in
respect of identical twins in western countries, it is now well established that when twins
are separated early in life and placed in different environments, they behave differently
in their tastes and ways of life. This in other words speaks of the strong-hold of
environment and weakened effect of hereditary on crime causation. To dispel this view it
may further be pointed out that certain races, clans or tribes such as gypsies in western
Europe are known to have indulged in criminality for generations. In India, the Kanjars
and Lohars of Rajasthan and Baluchis are some of the nomadic tribes which habitually
pursue criminal traits and take criminality as a mode of life. It may, however, be pointed
out that it is not the hereditary instinct that motivates them to indulge in criminal
behaviour but the real cause lies in the fact that they are brought up in the criminal
environment and the influence of family surroundings on them is so great that they can
hardly desist from criminal acts. Another reason for their criminal traits is society's
distrust for them which makes them indifferent to social norms and they indulge in anti-
social acts which are called crimes. The members of these tribes erroneously believe that
they are not accountable to society and hence have no choice but to continue their
criminal activities.
The tribal offences committed in Adivasi and tribal areas in India deserve a special
mention here. They are. mostly due to superstitious belief in witchcraft, petty quarrels,
sexual indulgence and intoxication due to excessive consumption of liquor, especially in
festive seasons. They are therefore, the result of peculiar socio-cultural conditions of the
tribal life and many a times the causes are petty and motives insignificant.2 Thus, it
would not be correct to attribute criminality in tribals to hereditary factor.
Studies carried on by Goring, Henly, Scheldon and Glneck on heredity as a factor of
crime causation indicate that it is difficult to establish any possible co-relation between
heredity and criminal behaviour because it is practically impossible to isolate heredity
factor from other environmental factors. The greatest merit of their researches, however,
lay in the fact that they for the first time focused attention of criminologists on
personality of offender which eventually paved way to adoption of reformative methods
for treatment of offenders in the field of penology. .
It is significant to note that even Lombroso at a later stage modified his earlier
views and suggested that only one-third of all criminals by nature are 'criminal type'. He
argued that the other two-thirds were insane criminals which included idiots, imbeciles,
paranoiacs, who suffer from alcoholism, epilepsy or hysteria etc. He preferred to call
them occasionl criminals. Such criminals are incapable of adjusting themselves to
normal society. It is on the basis of this hypothesis that the mentally depraved criminals
are classified into four categories under the English Mental Deficiency Act, 1913,
namely :
(i) idiots ;
(ii) imbeciles ;
____ (iii) feeble minded criminals ; and
1. Sen. P.K. : Penology, Old and New, (1943) p. 50.
2. 26 JILI (1983) p. 617.
(iv) morally insane criminals.
The test of mental insanity essentially rests on the knowledge as to the distinction
between right and wrong. This view has, however, been criticised on the ground that
insanity does not affect merely institutional (immediate insight) factors but affects the
personality of individual as a whole, including his desires and emotions.
It must be stated that Lombrosicm theory equating propensity to commit crime with
physical built-up has long been discarded. Even Lombroso, in his subsequent writings had
accepted that his theory was too simplistic.63

Mental Disorder and Criminality
The term 'mental disorder' is also referred to as mental abnormality It denotes that
the mind is in a state of confusion or is suffering from some disease. Studies have shown
that there is no evidence to prove that the crimes committed by criminals were induced
by their mental disorder. On the contrary, crime statistics showed that quite a large
number of criminals were persistent offenders and more than 66 per cent of them had a
past criminal record and 44 per cent of them had previously been in prison undergoing
sentence.
Be that as it may, law does take mental illness or insanity into account while
determining the criminal liability of the offender. It is also taken into account in
sentencing offenders where they are subjected to clinical treatment rather than being
sentenced. Insanity has been recognised as a defence in most penal laws.2
The rules recognising the defence of insanity in criminal law were first laid down
in 1843 in the historic M' Naghten's case.
M' Naghten's Rule of Criminal Responsibility
In M' Naghten's case3 a political maniac who wanted to shoot Britain's Foreign
Minister Robert Peel instead killed his Private Secretary Drumond on 20th January,
1843 in daytime. The killer was declared to be mentally insane by the medical experts.
The case involved two important issues before the Court. The point raised on the one
hand, was that an insane person is incapable of distinguishing between right and wrong,
while on the other hand, the argument that public safety demanded that this plea should
not be readily accepted as a defence to shield the criminal from penal consequences
needed proper attention. After a careful consideration their Lordships found M' Naghten
not guilty on the ground of his mental insanity. It was observed that every man is
presumed to be sane and to possess sufficient degree of reason to be held responsible for
his crime until the contrary is proved. In order to establish a defence on the ground of
insanity, it must be clearly proved that at the time of committing the act the accused was
labouring under such a degree of reason from disease of mind, as not to know the nature
and quality of the act he was doing, or if he did know it, as not to know what he was
doing was wrong.4 Similar issues were raised in a subsequent decision in Durham v.
United States (1954) where the accused was held not guilty for his criminal act because it
was a product of his
1. Void G.B. : Theoretical Criminology p. 38.
2. Sec. 84, I.P.C.
3. R. v. M' Nnghteii, (1843) 10 CL & F. 200.
4. Kenny's Outlines of Criminal Law, (19th Ed.), pp. 82—83.
mental depravity.
The principal characteristic of insanity or mental disorder to be accepted as a
defence is that the individual must be incapable of exercising any semblance of normal
reasoning power and thus be unable to accept legal responsibility because he cannot
appreciate the nature, quality or consequences of his act or because the act is not
voluntary and has no met is real, The want of rational understanding therefore, justifies
no responsibility under the criminal law.
There is yet another view about the mentally depraved persons. In certain cases, a
person is intellectually capable of distinguishing between right and wrong yet he
commits criminal act because of his irresistible impulse. This proposition, however,
stands completely discarded after the decision in M' Naghten's case.
Dr. Arnold holds that M' Naghten’s test of criminality is irreconcilable with the
63 R. v. Clarke, (1972) 1 All E.R. 219.

modern psychiatric insights. Modem trends in medical insight in criminological

considerations accept the complexities of human nature and emotions. They regard
insane persons as emotionally disturbed individuals incapable of being cured. The
practical implications of this view find support in the present criminal law which
accepts the basic weakness of an individual as a valid defence against his criminal
prosecution or at least a sufficient ground for mitigation of his sentence to a certain
extent.
In result, it has now been possible to link up mental disease as an explanation for
crime. Aggressive personalities have often to face many problems because of their
conflicts and overt acts due to their mental unsoundness. Dr. E. A. Hooton carried on
intensive researches on insane criminals and concluded that they were inferior to
civilians in nearly all their physical standards. To quote his own words, he observed :
"criminals are originally inferior. Crime is the resultant of the impact of environment
upon low grade human organisms". It follows that the elimination of crime can be
effected only by the expiration of the physically, mentally and morally unfit, or by their
complete segregation in a socially aseptic environment. Dr. Hooton's work, however,
stirred up controversy and critical reaction. Sutherland criticised Hooton's view of
constitutional inferiority of criminals on the ground of insufficient statistical evidence to
support his claim.
It must, however, be noted that the distinction between mental deficiency and
insanity has now become clear after the researches of Jean Esquirol of France and Issac
Ray of United States of America. Henry Goodard undertook intensive psychometric tests
to prove that more than 50% of criminals suffered from mental deficiency and they were
unable to appreciate the consequences of their behaviour or the meaning of law. Goring
also supported this view. It is now well settled that mental deficiency though not
directly relevant, is indirectly related to crime causation.
To avail the defence of insanity under criminal law, the accused must be unable to
know the physical nature and quality of his act. Thus, where A kills B under the insane
delusion that he is breaking a jar,64 or a mad man cuts the
64 Stephen : Digest (8th Ed.) p. 6.

woman's throat under the belief that he is cutting a loaf of bread, these are clear
instances of insanity.65
Insanity under Indian Criminal Law
Under the Indian Penal Code, insanity has been accepted as a defence to a charge
of crime. Section 84 of the Indian Penal Code extends immunity from criminal liability
to a person, who, by reason of unsoundness of mind, is unable to know the nature of the
act or is unable to know that what he is doing is "either wrong or contrary to law". In
recognising such a state of mind on the part of the accused as a complete defence to
criminal responsibility, the law postulates that it is futile to punish a person who does
not know the nature of his act, or that what he is doing is either wrong or contrary to
law. "The mind, in the real sense, does not accompany the physical act. To punish the
conduct of such a person would be abuse of law without any practical utility. If a person
does not possess knowledge about the nature of the act, then he will not appreciate what
he is being punished for. And, if he does not appreciate that much, then the objective of
punishment will not be achieved. In fact, punishment is intended to act on the mind of
the person punished and to alter the direction in which his mind has been working so far.
If the mind was not in substance a party to the conduct, then the question of changing
the direction of mind cannot arise."66
In cases where the defence of insanity is set up under Section 84 of I.P.C., it is
material to consider the circumstances which have preceded, attended and followed the
crime; whether there was deliberation and preparation for the act, whether it was done in
a manner which showed a desire to concealment of consciousness of guilt and whether
the accused made any efforts to avoid detection and whether after arrest he offered false
excuses or made false statements etc.67
Where in the morning the accused behaved normally, went to and came from his
office alone, wrote an application for leave and at 01.45 p.m. killed a child and stabbed
two others and on his arrest soon after 2.45 p.m. gave normal and intelligent answers to
the Investigating Officer, it was held that the accused was not insane at the time of
commission of offence and therefore cannot be allowed the defence of insanity under
Section 84 of I.P.C.68
The Supreme Court in Paras Ram v. State of Punjab,69 held that the ceremonial
beheading of a four year old boy by his father or relatives to propitiate some blood
thirsty deity, does not show or prove insanity of any kind.
In Meh Ram v. State,70 soon after the incident the accused was behaving normally
and was talking coherently and admitted having killed the deceased as he thought her to
be an evil spirit and there was no previous history of mental illness. The plea of insanity
was, therefore, not available to the accused.
65 Kenny's Outlines of Criminal Law p. 76.

66 Prof. P. M. Bakshi's article 'Limiting the Criminal Liability' 36 JILI (1994) p. 153.
67 State v. Chotelal, AIR 1959 M.P. 203.
68 jni Lnt v. Delhi Administration, AIR 1969 SC 15.
69 (1981) 2 SCC 508.
70 1994 Cri. L.J. 1897 (Raj.).
Where the accused who had committed gruesome murder of two ladies without
any reason or motive, had some previous history of mental illness and it was in evidence
that he was not behaving normally at the time of his arrest and had suffered an attack of
insanity during investigation, the defence of insanity under Section 84 of I.P.C. was held
to be applicable in his case.71
In Tolaram v. State of Rajasthan,72 the accused at the time of commission of the act
knew the nature of the act he was committing and on noticing the witnesses coming
towards him made an attempt to leave the house by jumping from a wall on an adjoining
house, the plea of insanity was rightly denied to him.
Bio-physical factors and criminality
Biological differences in human personality also account for criminality in human
beings. The logic behind biological explanation of crime is that structure determines
function and persons behave differently owing to the fact that they are somehow
structurally different. The physical and biological abnormalities are generally
responsible for criminal behaviour. In other words, the criminal is viewed as a
biological organism characteristically different, abnormal, defective and inferior, both
biologically and physiologically.
The physio-biological explanation of criminal behaviour inspired Prof. Franz Joseph
Gale to develop the doctrine of phrenology showing relationship between head
conformation and personal characteristics of a person. He first published his work on
this topic in 1791. His disciple John Gapser Spurzheim carried this doctrine to England and
United States in early twenties of nineteenth century.
An American criminologist Dr. Caldwell showed keen interest in phrenology and
published his 'Elements of Phrenology' in 1824. The doctrine underlined three basic
propositions :—
(i) the exterior of the skull conforms to the interior, and to the shape of the
brain ;
(ii) the mind consists of faculties ; and
(iii) these faculties are related to the brain and skull.
Dr. Caldwell emphasised that sentiments control the propensities and are aided by
will to govern the whole conduct or act of a person. Thus, 'will' and 'spirit' were
supreme in controlling the human behaviour. The theory has, however, been
disapproved being purely hypothetical in nature and has now fallen into disuse.
Bio-chemical researches have tried to show that hormonal imbalances have an
adverse effect on criminality. In other words, hormonal imbalances affect the thinking
power of the brain and control over nervous system and this may lead to criminality.
But the general consensus does not accept these findings. The more accepted view is
that hormonal imbalances may act as catalyst for criminal behaviour and provide a
favourable biological environment for crime causation but criminality cannot be
attributed to these imbalances alone. However, imbalances in sex hormones does affect
human behaviour.
Particularly, great hormonal changes usually occur in women just before and during
menstruation period commonly referred to as PMT and MT.
Likewise, physiological factors such as age, sex and certain endocrinal imbalances
also seem to have a correlation with the criminality of offenders. Adolescents and
juveniles are more prone to offences like stealing, vandalism and sexual assaults as they
readily fall a prey to the urges of sex and other lustful activities because of their tender
71 Niman Sim v. State of M.P., 1996 Cr. L.J. 3395.

72 1996 Cr. L.J. 8 (Raj.
age. The offences of theft, gambling, drunkenness, breach of traffic rules etc., are more
common with young persons who are normally between the age group of 18 to 30 years.
This is probably because of the fact that these offences involve considerable display of
courage, boldness and adventure which these young persons normally possess. Persons
advanced in age and experience are more prone to offences like white collar crime,
fraud, cheating, embezzlement etc., because the nature of these crimes require maturity
of mind and tact to handle intricate situations in case of detection.
Intelligence Testing and Crime
One of the distinguished French psychologists Alfred Binet (1857-1911) carried out
experiments in psychological laboratory on the persisting problem of retardation due -to
individual differences and introduced the concept of 'Mental Age' and 'Intelligence
Quotient' (IQ) and its influence on criminal behaviour.
There are two distinct types of mental defect, namely, amentia and dementia.
Amentia literally means lack of mind and describes a person who is born with a low
intellect. Dementia, on the other hand, refers to someone who once had a normal
intelligence but later lost it because of some disease, decay or accident. These
definitions provide guideline to decide which persons need treatment or help and law
deals with them accordingly.
Robinson has suggested that retarded persons may be grouped as (i) mildly; (ii)
moderately; (iii) severely; and (iv) profoundly retarded persons. Criminality is mostly
attributed to person with retarded intellect and not with severely or profoundly retarded
ones.1
Prof. Jerntan, an American psychologist worked further on the researches of Alfred
Binet and observed that the idea of 'mental age' is basically sound common sense in the
children. On an average, a child of twelve years age can comprehend and tackle more
difficult and abstract problems than an average young person. The same is equally true
for other ages as well. With each year of age, ability continues to grow and develop
constantly. Thus, Intelligence Quotient (IQ) is simply the ratio of Mental Age (MA)
divided by chronological age (CA) multiplied by 100 for each of numerical
representation. Thus, the formula for determining Intelligence Quotient is :—
Scientific researches have established a definite link between intelligence and
criminality. They have discovered that delinquents on an average had an IQ eight points
lower than non-delinquents. It has also been proved that IQ is not necessarily related to
hereditary factors but the environmental factors too 1. Robinson H.B. & Robinson N.M. : Mental
Retardation p. 77.
affect individual's I.Q.
It has, however, been accepted that age of sixteen years be assumed to represent
the level of full mental development beyond which additional years do not bring
additional ability.
As to the inter-action of sex in incidence of crime, it may be mentioned that there
are certain crimes which are peculiar to a particular sex. For example, illegal abortions
are commonly resorted to by women. So also, the offence of shoplifting is more
common with women than men because the former can escape frisking even though
suspected of this offence. Conversely, crimes such as homosexuality, house-breaking,
embezzlement etc., are rarely committed by women.
Gillin suggests that physical abnormalities in criminals drive them to commit
crime. Prof. Smith also supports this contention and holds that there are certain abnormal
personalities in whom the endocrine glands are functioning abnormally and this mal-
functioning of the endocrinal glands causes them to commit certain types of crime.
Thus, sexual incapabilities of a person may result into his failure to mature socially and
out of sheer disgust and frustration he may resort to criminality. Contrary to this,
excessive sex desire may cause one to indulge into prostitution and commit crimes such
as rape, kidnapping or drug addiction and similar other offences. Again, physical over-
development of young girls becomes a cause of sexual attraction for males which leads
them to sex delinquencies. Commenting on this point Prof. Gillin rightly observes that
'oversize of both the sexes tends to make the child conspicuous among his play-mates
and set a stage for abnormal conduct'.
Of late, explanation of criminal behaviour in terms of glandular mal-functioning
has been.a subject of criticism by endo-criminologists. It has been suggested that many
persons indulge in criminality despite normal functioning of their endocrine gland while
there are others who suffer from serious glandular abnormalities yet they never resort to
deviant behaviour.
American View on Personality Aspect of Criminals
While discussing personality-type of criminals, a word must be said about the
work of Earnest A. Hooton who made a major contribution to the school of physiological
criminology.
Hooton's View
E.A. Hooton was an anthropologist of Harward University who published his book
"Crime And The Man" in 1939 after an intensive twelve years' study. He seemed to
vindicate Lotnl. so's anthropological findings about criminal behaviour and disposed of
Goring's study as unscientific. Hooton attempted to show that crime and other anti-social
behaviours are due to physical and social factors. After an intensive study of prison
inmates he concluded that prisoners differ from non-criminals in various physical
particulars that compose definite pattern of physical inferiority. Hooton's work was,
however, criticised by sociologists, criminologists and anthropologists and characterised
as an outcome of his deep rooted prejudices against the criminals. He was also criticised
for excluding white collar criminals who are admirable mental specimen in many cases
and biologically superior.
very small proportion of delinquencies and in fact crimes are mostly committed by
persons of considerable intelligence and sharp outlook.
Freud's theory of Criminal Behaviour
Psychopaths contend that offenders lend into criminality on account of functional
deviations and mental conflicts. Sigmond Freud (1856-1939) explained mental conflicts
in the personality of criminals in terms of 'id', 'ego' and 'super ego'. He asserted that 'Id'
generates basic biological and physiological urges and impulses in a person such as
sexual desire, hunger, affection for kith and kins, lust for power etc. while ego refers to
the conscious personality of which the individual is aware. That is to say, although the
desire for sex pleasure and hunger are basic urges of a person yet he is all the time
conscious that only the righteous means to fulfil these desires protect his personality
and any deviation from the normal course shall cast aspersions on his personality. Super
ego according to Freud is the force of self-criticism and control inherent in every person.
Thus, there is a constant conflict between ‘Id’ (basic urges of men) ego and super-ego.
Freud, therefore, contends that crime is the substitute of symbolic behaviour of a person.
The desire for committing suicide (self-murder) is out of the feeling of inferiority,
frustration, depression or anxiety. Again, theft is committed out of the sense of financial
inferiority and to get rid of the feelings of spite and dependence etc.
According to Freud, the ego does not exist at birth but it is something the individual
learns. For example, a baby learns that it is fed only after crying and child leams to say
'please' in order to obtain thing which he wants. Gradually, 'ego' develops and starts
controlling the temper i.e., id.
The super-ego is largely part of the unconscious personality. It is the conscience
which exists in the unconscious areas of mind. The super-ego thus characterises the fully
socialised and conforming member of society. It is the impact of moral and ethical
attitudes of parents with whom the child interacts in his or her early stages of
devlopment that helps in the formation of the super-ego.
It would be seen that id demands pleasure, while the super-ego demands control and
repression and both push ego towards its own. As a result of this, there is conflict which
is difficult to resolve. Where the super-ego in a child is not wel) developed, he is likely
to be drawn towards delinquency. Freud postulated that the failure to develop super-ego
was generally the result of parents being unloving, harsh or absent during the child's
upbringing. It is for this reason that socialising processes had failed to work on those
children whose latent delinquency had become dominant; the children were therefore,
dis-social, if not anti-social.73
Psychologists also recognise that other factors such as relationships with persons
outside the family and general social environment can also affect the formation of super-
ego. If super-ego is over-developed, it my lead to guilt feelings or neurosis.
Adler attributes criminal behaviour to inferiority complex and observes that crime is an
overt compassion for a deep feeling of inferiority, which is often
Glueck's Psychiatric Theory of Crime
Another psychiatrist, Eleanor Glueck also founded his theory of criminal behaviour
on personality deviations. He worked out a Prediction Table comprising three main
aspects of human personality :—
(1) the social background of the criminal ;
(2) his personality traits ; and
73 Freud Sigmond : A General Introduction to Psycho-Analysis (1935) translated by John Riviere

(New York) p. 232.
the result of distrust or neglect of child by the parents.

(3) his psychiatric conditions.
Dr. Glueckobserved that abnormalities in a person are the root cause of criminality.
He preferred to call these abnormalities as personal deviations. It was, however,
subsequently realised that these theories do not offer a satisfactory explanation for
certain crimes such as gambling, prostitution, vagrancy, drug addiction, violation of
traffic laws, etc. These offences are satisfactorily accounted for by the sociological
considerations.
Psychological concept of crime
Psychology includes within it the study of mind and behaviour attitudes etc. It is
the study of individual characteristics such as personality, reasoning, thought
perceptions, intelligence, imagination, memory creativity and so on.
Psychologists treat crime as a behaviour learnt by the criminal in course of his
contact with different persons. Like sociologists, they seek to explain crime in terms of
environmental circumstances.
As stated earlier, Lombroso attributed criminality to atavism which meant that
criminals have savagery ancestral history and criminality in them is hereditary. Similar
assertions were made by Goring who pointed out that criminalistic traits in criminals are
imbibed by heredity and through instinctive patterns and, therefore, environmental
conditions are of little importance. Subsequent researches by psychologists and
sociologists have, however, demonstrated beyond doubt that it is not the heredity but the
psychological influences operating in delinquent families that maked one criminal. The
child unconsciously imbibes criminalistic traits from the family background of the
delinquent parents and subsequently turns into a confirmed criminal. Also, children who
are removed away from their parents at an early age tend to follow criminality for want
of proper parental care and lack of affection which develops the feelings of inferiority
complex, frustration and humiliation in them. Commenting on this, Sutherland observed
that the resemblance between father and son as regards criminality is not due to
contagion but it is because of peculiar human psychology of learning things, observation
and association that makes them follow criminal behaviour if placed in circumstances
which are conductive to crime.74
The theory of learning which Sutherland prefers to call as differential association,
asserts that crime is learnt in association with others. It is clearly connected with Tarde's
theory of imagination, that is, all men tend to imitate each other, the extent of imitation,
however, depending upon how close are their contacts. He stated that lower classes tend
to imitate the upper classes and
74 Sutherland & Cressey : The Principless of Criminology (6th Ed.) p. 100.

so is the case with the followers who imitate their leader's behavioural pattern. And it
is in this process of learning and imitation that a person gets involved into
criminality. The central hypothesis therefore, is that crime is not invented by each
criminal separately but like all other forms of behaviour, it is learnt from direct
contact with other criminals. The behavioural learning takes place through personal
contacts with other people.
Psychological researches on teen-age violence have shown that violent careers
develop along two main paths. Sometimes children start violence early before
puberty. They are more likely to become chronic violent offenders. More commonly
children who turn to violence in adolescence mend themselves sooner or later. The
reason for violence may be birth complications, poverty, anti-social parents, poor
parenting, aggression, academic failure, psychological problems, alienation from
home, school etc.
Aristotle's Four Laws of Association
It shall be pertinent to mention here the four classical laws of association which
the great Greek Philosopher Aristotle enunciated centuries ago. He stated that (i)
similarity, (ii) contrast, (iii) succession in time, and (iv) co-existence have a close
bearing on the psychological concept of crime. Each of these factors greatly
influence the behavioural pattern of the criminal.
As to the law of similarity, Aristotle holds that persons following similar
criminal traits come closer and associate themselves into bigger gangs. Again, the
beginners learn patterns of their seniors and associate themselves with their criminal
activities. The psychological tendency to act in a similar way by observing or
imitating the behaviour of others can make persons follow criminality in life.
Likewise, contrast between criminals and non-criminals as to their association and
behaviour also leads to strifes and clashes which ultimately aggravate crime.
Speaking about the laws of succession in time, Aristotle suggests that human conduct
is a phenomenon that persists through unbroken links. That is to say, various
behavioural norms are followed from generation to generation in succession. Though
with the change in time and circumstances these patterns may undergo a change,
nevertheless, their basic values remain unchanged. Aristotle asserted that criminality
is one of such norms which has been continued all over the world from ages though
in varying degrees with changes in time and place. Finally, he stressed that it is the
desire for co-existence which causes delinquents to form their associations for
helping each other in their criminal pursuits. Evidently, these trends have
psychological effect which lends a person into criminality
Psychological depravity in a person due to his physical defects and incapacities
also have an important bearing on criminality. Thus, persons who are deaf, dumb or
those who suffer from white spots, eye-squints and other physical deformities meet
disgust and ridicule thereby suffer loss of social status hence they tend to commit
crimes more frequently.75 Likewise, persons with ugly look and dark complexion also
tend to behave criminally and mostly indulge in sexual offences because of the
inferiority complex in them which makes them think that they are being neglected by
fair sex due to hatred and indifference. This generates in them a feeling that they are
out-caste and their dissatisfaction,
revengeful attitude towards women and irritation instigates them to resort to criminal
acts in an effort to achieve what they could not otherwise get through legitimate means.
Conversely, girls with masculine features or offensive complexion are ridiculed not only
75 Healy William : The Individual Delinquent, p. 218.

by the males but also their own womenfolk and therefore, they deviate from their
normal ways of life and do not even hesitate to indulge in sexual-crime in an effort to
overcome their inferiority complex.76
Besides the physical defects, failure in competitions or unsuccess at the
examinations and strained marital relations also affect sensitive persons psychologically
and they become so desperate that they do not even hesitate to throw themselves into
criminality in an attempt to forget their unpleasant experiences with a view to escaping
from the realities of life. Frustration causes emotional disturbance in them and
aggression eventually culminates into delinquency. Attempted suicides, alcoholism,
assaults, homicides and many similar offences are often the outcome of this
psychological trend of criminals who are not bold enough to face the hazards of life.
The problem of securing suitable match for unmarried girls in India has become a social
problem these days, with the result girls remain unmarried till a very late age.
Consequently, their psychological urges on the one hand and the sense of being a
burden on the family on the other, upsets their mental equilibrium and those who cannot
resist their passion quite often indulge in prohibited sex exchanges and thus fall an easy
prey to sexual criminality.
Another remarkable feature regarding psychology and its relationship with
criminality is that males are more prone to criminality than females. The percentage of
women delinquency in India and elsewhere is far lower than those of male offenders.
Commenting on this point Sutherland observes, "those variations are probably because of
the difference in the social position of the girls and women as compared to boys and
men. The girls are brought up and supervised most carefully and taught what must be
nice while the boys are taught to be rough and tough and the boy who adopts the
behaviour of girls is regarded as 'sissy' among his fellow boys and laughed at".77 It
appears that this variation in sex ratio in crime is due to the fact that girls and women
predominantly play the role of housewives while the male members play the masculine
role of supporting and protecting the family. However, it is a different matter, this
differentiation does not hold good in the present era of gender equality and women's
empowerment.
Like alcoholics, narcotic drug addiction is also regarded as one of the
psychopathic traits of criminal behaviour. Lindsmith observed that a man may start using
narcotic drugs for two obvious reasons. He may start it out of sheer fun or curiosity or
observance of folkways or he may initially start using them as a medicine for his
ailment and subsequently get addicted to it due to prolonged use. These addicts suffer
distress when the supply of drugs is withdrawn and often resort to violence in an attempt
to secure the dose. Moreover, drug addiction produces physical and mental deterioration
and the addicts frequently resort to crimes such as theft and vagrancy to secure money
for procuring drugs. That apart, addicts too often associate themselves with the
underworld characters and pick up criminal tendencies for acquiring the supply. Thus,
unknowingly they lend into criminality without any real intention on their part to
become criminal.
Conflict Theory of Crime
Sellin wrote about his conflict theory in 1938 and asserted that culture conflict
emnates from conflict of conduct norms, where each separate culture sets out its own
norms i.e. rules of behaviour to be instilled into its members. In a homogeneous society
these are enacted into laws and followed by the members of that society because they
76 Healy William : The Individual Delinquent, p. 218.

77 Sutherland & Cressey : The Principles of Criminology, (6th Ed.) p. 115.
consider them to be right. However, where the society is hetrogeneous, this does not
occur and culture conflict is bound to arise.78
Void was also one of the proponents of the conflict theory of criminal behaviour.
He argued that people are naturally group oriented and those who have same interests
come together to form a group in order to carry forward these interests. The central
theme of Void's theory is that different groups have different and often incompatible
interests which gives rise to conflicts. Where groups have a similar strength, then they
often resolve their conflict by compromise thus lending stability to society. But if the
groups are of differing strength, the powerful one dominates which creates frustration
and feeling of discontent among the weaker group which eventually leads to crimes.
Therefore, crime according to Void is not the result of abnormality, but it is rather a
natural response to an attack on the way of life of the deprived or weaker group.79
It may, however, be noted that psychological conditions are not directly
instrumental for causation of crime. The true explanation of criminal behaviour must
apparently be found in social interaction in which the behaviour of a particular person
and prospective conduct of other persons play a significant role. In this context a
reference to Sutherland's theory of Differential Association as an explanation of crime
causation seems inevitable as it extends positive support to the impact of psychological
traits on incidence of crime. Considering the structural aspect of human association,
Sutherland suggested that social organisation consists of three main groups, viz., one
supporting the criminal activities, the other remaining neutral to criminal circumstances
while the third acting anti-criminal. He further observed that the differential association
in human organisation is a logical consequence of the principle of learning by
association which is more or less a psychological phenomenon. Sir Walter Reckless has
also supported this view and holds that though the responsible and irrationals do
commit crimes incidently yet much of the criminality is due to a chain of circumstances.
The patterns of discrimination, injustice and exploitation are built into practices,
and in course of time assume the form of cultural pattern. The ideologies that defend the
unjust structures and patterns result into cultural violence, which is also called
'structural violence'. For instance, the American Civil War of 1865, where the whole
culture of slavery had to be rejected or the struggle against apartheid in South Africa
clearly shows how changes in
contemporary society are necessitated for new alternatives and new forms of ' life.
Briefly stated, the conflict theory suggests that 'structural violence' is the
outcome of inflexibility and rigidity of the rules and practices in dealing with
different races, classes or cultures. Thus conflict theory of crime suggests that
structural violence and its effects are manifested in the differential parameters of
morality, morbidity and incarceration among different groups or cultures.
It is often argued that Sutherland's theory of differential association as an
explanation of crime causation has only a theoretical significance because it lacks
reality. Alternatively, the conflict theory of crime which considers crime as a
minority group behaviour such as juvenile gangs, prostitute houses, gambling dens,
etc., places reliance on psychological trends of human behaviour in relation to
crime. Similarly, the political offenders in their quest for power commit only the
crime of political nature such as sabotage, rebellion, unlawful assembly, riots, etc.,
and psychologically respond negatively to other types of crimes which relate to
property and other monetary gains. The anti-governmental activities of certain
parties in India are a glaring illustration on the point. Their sole object is to oust the
78 Sellin Thorsten : Culture Conflict & Crime (New York) p. 47.

79 Void G. B. : Theoretical Criminology (Oxford Press) p. 109.
government in power due to the differences with its political ideologies. Secondly,
the intensive industrialisation in India has given rise to frequent clashes between the
management and tine labour unions resulting into destruction of property, strikes,
lock-outs, gheraos and other pressure tactics which are unlawful and offensive in
nature.
Yet another significant interaction of conflict theory or crime particularly with
reference to India can be located in the deep-rooted caste differences and communal
hatred between the members of different communities. The Hindu-Muslim riots and
tensions are common in Indian society.80 The mass-massacre during partition of India
in 1947 and the incidents of arson, looting, rape and murders were the outcome of
sheer hatred between the two communities, namely, Hindus and Muslims who lived
together peacefully in this country for generations. These conflicts and differences
are obviously psychological in nature, particularly when the other minority
communities are being amicably accommodated in India.
The mass-massacre and bloodshed in Punjab caused by the Sikh terrorist
activities during 1984-87 and the disturbances in Delhi following the assassination
of Smt. Indira Gandhi the Prime Minister of India, on 31st October, 1984 further
bear testimony to the fact that ideological and communal differences which are
purely psychological in nature, too often lead to, heinous criminal acts. The mass-
massacre and disruptive activities of LTTE, Tamil rebels in Sri Lanka which are
being carried on unabated for the preceding more than ten years may also be cited to
support contention that regional and linguistic consideration may also lead to
ghastly crimes at the instance of a handful of psychotic persons. The frequent
bombing and killings in Iraq following the ouster of President Saddam Hussain by
the U.S. forces in 2003 leading to Sunni
conflict is yet another current illustration on the point.81
Mention should also be made about the historic Deoria Sati incident which
occurred in the State of Rajasthan on September 4, 1987. This unfortunate incident
created a situation of confrontation between the protagonists who supported the practice
of Sati on religious grounds whereas the people in general as also the Government is
opposed to this evil practice because it is against public policy and is an act of
barbarism. It is submitted that Sati, namely, the burning of women on the pyres along
with her deceased husband cannot be permitted in any form in the modem age because it
is not only unethical but also inhuman and even unlawful. In the words of Justice V.R.
Krishna Iyer, the eminent jurist and former Judge of the Supreme Court of India
"Sati is a criminal phenomenon .......... it is murder most foul of Indian women by
cultural coercion and the ghastly sanction of incineration." It is for this reason that the
Parliament had to come out with deterrent legislation against the practice of Sati,82 in
1987 providing death sentence for abetment of this offence. The law seeks to make
glorification of Sati as an offence punishable with a minimum imprisonment of one year
which may extend upto seven years and also a minimum fine of Rs. 5,000/- and a
maximum of Rs. 30,000/-.
It is important to note that a struggle constantly persists between the law-breakers
80 The Hindu-Muslim riots in Jamshedpur and Aligarh in 1979 ; Meerut in 1982 ; Babri Masjid
demolition at Ayodhya in December, 1992 ; the Bombay Blast in January, 1993 followed by riots
in Surat and Ahmedabad; Godhra Train Burning incident of 27th March 2002; Best Bakery
Firing in communal mob-violence killing, 12 persons on March 1, 2002 are some of the
illustrations on the point.
81 Saddam Hussain had allegedly massacred thousands of Shias in order to retain powers, which led to
Shia-Sunni conflict causing destruction of lives and property and continues even to this day.
82 The Commission of Sati (Prevention) Act, 1987.
and the law-keepers—that is the criminals and the police. Clashes between them often
provide a psychological basis for generating crime. With the stiff attitude and drastic
measures of the police, the criminals become more furious, violent and aggressive. This
ensues face to face fights between the two with the result there prevails a reign of terror
which in turn becomes a patent cause of violence and disorder.83 That apart, with the
improved techniques of crime-detection, the criminals have also modernised their
methods of committing crime so as to escape the chances of detection and arrest.
It must be stated that conflicts generally arise from misunderstanding, lack of
understanding, clash o( interests, gulf between the views or beliefs of persons or parties,
suspicion, lack of justice, fair play or honesty, intolerance and violence and lack of
rapport, love, and cooperation etc. Once the conflicts arise and not quickly resolved, the
situation leads to confrontation, social instability, disaffection and lawlessness which
finally culminates into violence and criminality. It is therefore in the interest of the
society that the causes of tension and conflict be eliminated and if they do arise, they
must be resolved at the
83 The Anti-reservation stir of Gujarat during February—June 1985, which resulted into killing of
hundreds of innocent lives and destruction of property is an example on the point. The anti-
reservation agitation opposing implementation of Mandal Commission's Report throughout India in
August 1990 is also an illustration to support this contention.
The Pakistan supported militants and terrorists groups who are constantly creating tensions and
disorder throughout Jammu and Kashmir State by resorting to violence and mass killing of innocent
people for the past so many years frustrating Indian Governments' efforts to restore normalcy in the
valley is yet another example of the conflict between law-breakers and law-keepers. The Bombay
blast of 26th November, 2008 is the latest terrorist attack in the series.
earliest. This is perhaps the best way to mitigate crimes.

Gender-based Explanations of Female Criminality
It is true that women in the past were less likely to indulge in criminality as
compared with the present time and criminality was characterised as predominantly a
male activity. Even the crimes which are traditionally attributed to females either
remained undetected or if detected, were leniently dealt with. But with the advance of
criminological researches some behavioural scientists have tried to offer explanation for
growing criminal behaviour of females on the basis of biological, physical,
psychological and geneticological theories.
Dr. Sutherland refers to the innate trait of women which suggests that they are more
law abiding as compared with their male counterparts because they are excluded from
the dominant role of bread-eamer and other masculine activities.84 But the fact remains
that these behavioural explanations have not provided any plausible answer to the
question of female criminality nor do they explain why females are more conforming
than men. It is, however, generally accepted that female criminality is more damaging to
the wider society and perhaps this is the reason why criminal justice system treats
women lightly in matters of punishment. In prisons also, women prisoners are often
assigned the role of mother or housewife to inculcate in them domestic rather than
vocational skills. Even today, the general assumption about female criminality is that
women are less likely to be suspected of crime, when suspected they are less likely to be
charged and prosecuted, and finally if prosecuted, they are less likely to be convicted.85
Group Therapy
The greatest impact of psychological factors in the field of criminology can be
evinced in what has been known as Group-therapy which the modem correctional
institutions have adopted for the treatment of criminals. Experience has shown that
isolated life of criminals in jails and prisons makes them psychologically more violent,
revengeful and indifferent towards society. The isolated, dull and monotonous
institutional life in prison kills the personality of the offender and at the same time it is
an unproductive endeavour for the State. Therefore, more recently an attempt has been
made to approach the inmates psychologically and this has eventually led to the
evolution of the system of Group-therapy in prisons and correctional institutions.
The relatively new technique of group therapy is based on the principle of self-
help. It seeks to reform the inmates and prisoners by offering them an opportunity to
form themselves into small groups of ten to fifteen in number and discuss their
problems mutually. It emphasises on securing adjustment of inmates through the
process of normal learning. Originally, the system was confined only to mentally
abnormal inmates who were unsuited for individual treatment, particularly during the
World War I. These criminals were formed into clinical groups and thus relieved of the
rigours of social isolation. It offered them an opportunity to create a friendly and
supportive atmosphere. Later on, the method of group psycho-therapy was extended to
prisoners and inmates in reformatories. The principle underlying this system is that if
these inmates get an opportunity to express and discuss their problems freely, they can
gain emotional control over themselves and thus avoid tensions and conflicts. It has
rightly been commented that guided group interaction through group-therapy gives
inmates a meaningful social experience.
Considered from the psychological standpoint, group-therapy enables the inmates
to face the realities of life and shed off their frustration and guilt. With an opportunity to
discuss their problems mutually in a free atmosphere and analysing the arguments of
84 One may not agree with this view putforth by Sutherland in view of the empowerment women's
that has taken place over the years.
85 Katherine S. Williams : Text Book on Criminology, (2001) pp. 490-91.
others, they prepare themselves to accept social norms and conform to social values of
life by avoiding delinquent acts. The system of group-psycho-therapy inculcates a sense
of loyalty, responsibility and faith among criminals and helps them to return to non-
criminal world.
Besides group therapy, the inmates in reformatories, correctional homes and other
clinical institutions are treated psychologically for being rehabilitated into normal
society.
Psychological studies on crime victims have concluded that emotional distress as a
result of crime is a recurring phenomenon for all victims of crime, the most common
problems affecting about 80% of victims, were psychological in nature such as fear,
anxiety, nervousness, self-blame, anger, shame and sleeplessness. These problems
generally lead to psychological disorder called PTSD (Post-traumatic Stress Disorder).
The victim begins to lose faith in life and perceive world as unmeaningful and
incomprehensible. Group therapy may certainly prove to be a viable treatment method
for such victims of crime.
Despite above generalisations regarding the influence of hereditary,
anthropological, psychopathic and psychological factors on crime causation, it must be
pointed out that these factors have failed to explain certain 'personality-type' crimes
such as drunkenness, vagrancy, begging, prostitution, violation of drug-laws and many
other similar offences. Obviously, these types of crime do not respond favourably to the
subjective approach to crime causation for reasons stated below :—
(1) These offenders look to the facts of changing world in the light of
the changing views about different type of crimes. The reason for non-
seriousness toward;: these personality type crimes is that though they are
regarded as crimes, being against the accepted norms of morality and
culture, the moral condemnation for them is receding fast. We have already
seen that the offences of begging, gambling and drinking have now become
so common in the Indian society that we have rather begun to forget that
they are crimes at all. The tendency on the part of men, women and even
children to stake money in 'satta' although unlawful, has become common
these days. This indicates that human reaction to such anti-social behaviour
is rather unstable and changing. This contention finds support in the
disappearance of blasphemy as an offence. The social legislation legalising
abortion86 also supports this view.
(2) These criminals escape realities of life and commit crime as a
substitute for their failure and personal incapacity. The cases of homo-
sexuality can be cited in support of this contention. Those who resort to
liquor and other drug-addictions fall under this category.
In order to reduce crime rate many countries avoid to provide legal definition of
personality-type crimes though they do not really mean to encourage such delinquent
acts. Thus, they inject indirect influences of custom, convention and standards of good
taste in their legislative measures which are based on self-approval. To quote an
example, prostitution is not an offence under the penal system of Denmark though it
cannot be carried on in public places. Again, the use of alcohol is free in that country
though it is supplied on permits. Of late, many western countries have shown their
preparedness to remove homo-sexuality as an offence from their Statute Book for
similar reasons, though they insist that it should not be committed in public places.
An analysis of these 'personality-type' crimes reveals that certain socio-economic
conditions associated with these offences are the real cause of their recurrence. Thus,
86 Medical Termination of Pregnancy Act, 1971.

many persons resort to gambling and begging as they find it a profitable profession
which does not involve any labour or work. So also certain women embrace prostitution
as an easy means of livelihood.
Another remarkable feature of these personality-type crimes which do not respond
favourably to the bio-physiological considerations is that there is always an element of
specific cultural behaviour corresponding to a similar criminal activity. For example,
wagering and gambling are not allowed under the law but risk taking in commercial
adventures is freely tolerated despite the fact that it is also of a gambling nature.
Similarly, begging for personal gains is unlawful although it is permissible when
practised for charitable purposes and raising donations etc. Again, sexual indulgences
for monetary consideration is a crime prohibited under the law but making profitable
marriage is not an offence.
In conclusion, it may be summarised that though biological, anthropological,
psychiatric and psychological factors play an important role in crime causation, they are
so closely associated with the socio-cultural environment that there is an apparent need
for an inter-disciplinary approach to the problem of crime and criminals.87 Since human
psychology is incapable of clear-cut division it would be prudent to approach the
problem of criminality in an objective manner for the sake of comprehensive
understanding. Prof. Albert Reiss has tried to identify social relations which are correlative
of some of the psychological types. Hcxvett and Jenking also made significant
contribution to co-relate "personality-type" delinquents with social relations which has
provided adequate basis for prevention of crime and treatment of offenders. Enrico Ferri's
explanation of peculiarities in human behaviour in terms of synthetic product of
combination of certain factors provides a useful clue for exploring causation of crime for
the purpose of criminological studies.
Social change, which is inevitable in a dynamic society, brings in disharmony,
conflict and cultural differentiation. As a result of this, social disorganisation takes place
and the traditional patterns of social control mechanisms totally break down. The impact
of this change is clearly discernible
87 Sutherland & Cressy : The Principles of Criminology, (6th Ed.) p. 135.

in the 'personality traits' and psychological variables in criminal behaviour of the
offenders. This pragmatic approach to crime causation would certainly provide a
sound basis for formulating policies and strategies for effective control of crime and
criminals.
It must be stated that under the influence of modern medico-psychological
theories of criminology it is being increasingly realised that "crime is itself a form of
mental disease, and that its removal as a social evil is a matter more for medicine
than for penal law". The Danish Professor George Stump has suggested
psychotherapeutical methods for treatment of abnormal offenders which seeks to
change the structure of the whole personality of the criminal, wherein lie the main
causes of criminality. However, sounding a note of caution and restraint, the
Norwegian Professor Lopez Rex/1 observed that the modern clinical criminologists are
making a mistake by characterising crime as a form of mental disease and identifying
criminal behaviour as a social justification for the act.
Chapter V
Sociological Theory of Crime

\
A part from the personality of the criminal and the effect of biological, mental and
psychological factors on him, it is necessary to consider the impact of various
social and environmental conditions within which crimes generate. American
criminologists preferred to approach the problem of crime causation objectively.
They attributed criminality to social conditions of the criminal. Thus, the American
view did not support the contention that crimes occur due to personality traits of
offenders. The origin of sociological concept of crime can be traced back to the later
part of nineteenth century when sociologists undertook intensive study of crime
causation in its economic perspective. They were first in point of time to suggest that
the concept of crime has to be extended beyond its strictly legal ambit for the
purpose of criminologic studies. The legal approach to causation of crime prescribes
a course of conduct under which violations of law are met with penal consequences.
But the sociologists go a step further and suggest that crime-causation to a large
extent, depends on social interactions—and at times persons violate the law
deliberately knowing it fully well that they are liable to face penal consequences for
their unlawful act. This phenomenon is more conspicuous in times of political
upheavals. Instances are not wanting when eminent statesmen such as Lokmanya
Tilak, Mahatma Gandhi, Pandit Nehru, Lai Bahadur Shastri, etc., were forced to
violate British laws in the battle for Indian Independence. The tendency on the part
of present politicians and trade unionists to resort to pressure tactics such as hunger-
strikes, glieraos, dhanias, self-immolation, etc., are the glaring instances of deliberate
law violations by responsible members of society.
The sociological theory of crime asserts that there are persons who do not
conform to the established norms and traditions prescribed by law. These persons do
not adjust themselves within the framework of normal standards of society and are
more or less indifferent to societal norms. For instance, it is well known that the rules
1. IPPF : Studies in Penology (1964) p 23.

of morality or law do not permit anyone to take away the property of others without
the latter's consent yet there are persons who do indulge in such activities. The
reason for this deviated conduct is to be found in the fact that either these persons
have seen their parents or other members of the family stealing or they are
encouraged by their seniors to take away things belonging to others. It is in this way
that delinquents develop a peculiar habit of stealing and committing thefts. This
sufficiently demonstrates that environmental factors such as family relationship may
at times contribute to delinquent behaviour.
Rafftiele Garofnlo was perhaps the first legalist to attempt a sociological
definition of crime. He designated all those acts as crime which no civilised society
can refuse to recognise as criminal and redressible by punishment. He
observed that crime is an immoral and harmful act which is regarded as 'criminal' by
public opinion because it is an injury to so much of the moral sense as is represented
by one or the other of the elementary altruistic sentiments of probity and pity
Subsequently, Roscoe Pound, an eminent American jurist, worked out his theory of
'social-interests' closely related to crime-repression. He founded his theory on a basic
assumption that legal phenomenon is nothing but social phenomenon and thus he
treated jurisprudence as a science of social engineering.88 He stressed that the interests
in life, liberty, security, religion, social institutions and general progress are
predominant considerations with every individual. Sociologically, these interests are
clearly conceived by society and any act threatening their realisation calls for
repressive measures. Thus, these social interests are protected by society and defended
by punishments, moral restrains and conventional repressions. Considered from this
standpoint, crime has rightly been defined as an action which is antagonistic to
solidarity of that group which individual regards as his own.
In the light of the above observation, it is easy to conclude that the sociological
view point about the concept of crime is more realistic than its legal definition. It has
often been said that we shall have no crime if we had no criminal law but it is a sheer
exaltation of law. It is true that with the repeal of law relating to theft, stealing shall no
longer remain a crime, nevertheless it would still entail public indignation. Thus,
"though the name of the behaviour would be changed yet the behaviour and social
reaction to it would still remain the same, because the social interests damaged by the
behaviour would still remain unchanged". Conversely, although white collar crime is
punishable under all legal systems yet those who indulge in false advertising, hoarding,
tax evasion, etc., do not lose social status despite their act being anti-social. Thus,
sociologists assert that every crime involves three essential elements, namely,
(i) values that are appreciated by the law-makers who are politically dominant
;
(ii) conflict of interests in society due to environmental variations ; and
(iii) use of force and coercive measures by the offenders.
Sociologists contend that like any other social behaviour the criminal
behaviour also results from certain environmental conditions. Therefore, the variations
88 Edgar Bodenheimer : Jurisprudence—The Philosophy and Methods of the Law, (1962) pp. 110-
111.
Sociological Theory of Crime 73
in crime rate are due to variations in social organisation under different systems.
Enumerating some of the specific factors, Sutherland suggests that variations in
mobility, culture conflicts, family background, ideologies, population density,
employment and distribution of wealth, etc., have a close bearing on crime causation.
It may, however, be pointed out that the above list is not exhaustive but only
illustrative and these are some of the main conditions which directly influence the
crime rate.
Dr. Walter Reckless, through his actuarial approach to the problem of crime
causation observed that chances of the criminal being detected or reported depend, by
and large, on his position in the society as determined by his age, sex, race,
occupational and social status and residence, etc.
Sociological Theory of Criminal Behaviour
This theory pre-supposes that criminals are a product of society The impact of
sociological factors is so great on persons that they either shun criminality or embrace
it, depending on their environment and immediate social conditions. Prof. Sutherland
made an intensive study of criminals and offered two major explanations for criminal
behaviour, namely :—
(i) the processes operating at the time of the occurrence of crime which he
called the dynamic explanation of crime ; and
(ii) the processes operating in the earlier life-history of the criminal which he
termed as the historical or generic explanation of crime.
The dynamic explanation of crime causation was subsequently favoured by the
psychologists, biologists and psychiatrists and in fact formed the basis for subjective
approach to crime. It suggests that the cause of criminal behaviour lies in the
immediate favourable situation which the criminal finds conducive for the criminal
act. For example, offence of embezzlement or misappropriation of the public funds can
only be committed by persons who handle large sums of money. Likewise, the offence
of theft is often committed in lonely houses which the criminals find locked or
unmanned for a number of days. Again, sex offences are common in dwellings where
the number of family members are limited and opportunities for privacy and loneliness
are easily available.
It is true that personal situations of the criminal do play a vital role in the
causation of crime yet these 'situations' alone can hardly be sufficient to motivate a
person to commit crime if his previous life experiences are otherwise different.
Therefore, a crime usually generates when a person from his past experiences
considers a particular situation conducive to it.
As regards the historical or generic explanation of criminal behaviour,
Sutherland drew the following conclusions :
(1) Criminal behaviour is learnt89 and not inherited.
(2) The process of learning criminal behaviour operates through
inter-action of the criminal with other persons and his association with
them.
(3) The greatest influence on the individual is that of his intimate
personal group which moulds his conduct in many ways.
(4) Criminality in human society can best be explained through
Sutherland's principle of Differential Association which presupposes that
there are criminal as well as non-criminal associations and these two
forces are constantly counteracting. The criminal behaviour results in
89 Gabriel de Tnrdc also subscribed to the view that criminal behaviour is the result of
a learning process.
when the circumstances favourable to violations of law outweigh those

which are unfavourable to law-breaking.90
(5) The association with regard to criminal behaviour and anti-criminal
behaviour may vary in respect of its duration, priority or intensity.
(6) Some criminologists have attempted to explain criminal behaviour in
terms of economic needs, acquisitive tendencies of men and urge for
gaining social status and seeking pleasure in life. But this argument is
untenable inasmuch as it equally applies to lawful behaviours as well.
Thus, theft may be committed by a person for monetary gains but similar
results are achieved by earning wages honestly through hard labour.
Theory of Differential Association
The theory of differential association was propounded by Edivin H. Sutherland in
1939. The theory asserts that crime is learnt by association with others. According to
him, behavioural learning takes place through personal contacts with other people.
This learning, in the context of crime, involves both the techniques for committing the
crimes and the attitudes and rationality or justification for their committal. For
example, parents of a person may approve, or atleast not disapprove certain types of
theft for feeding the hungry or meeting the needs of the poor from certain types of
victims such as large stores or wealthy businessman. Thus, the person might learn
sympathy for the poor or needy at the same time realising that theft is generally wrong.
Such differing and conflicting experiences may lead him to criminality if he is more
exposed to the views which are supportive of crime than the views which are against
it. Briefly stated, the theory of differential association centers round the theme that a
person becomes criminal if there is an excess of influence on him favourable to the
violation of the law as compared with the influences which are unfavourable to
violation of law.
From the above, it may be said that the essential characteristic of sociological
view of crime is that it regards criminality as a consequence of social processes
operating in society. In the Indian context, the early Hindu society was essentially
credited with the integrated family system where the individual had limited scope for
independent existence. The homogeneity of society made the family self-sufficient and
therefore the incidence of crime was rare. However, with the advance of science,
technology, civilisation and economic progress, the pattern of Indian society has
radically changed and the institution of family now stands dissimilated and its
disintegration has led to freedom of action so that everyone can adapt himself to the
conflicting interests of society. This has resulted into multiplicity of crime in modern
times as compared with earlier period.
Prof. Thorsten Sellin observes that "the conduct norm of one group of person is a
part, which may permit one response to a particular situation while the norm of another
group may permit perhaps the very opposite response". For instance, bigamy is an
offence punishable under Section 494 of the Indian Penal Code if committed by
Hindus, Christians and Parsis of either sex but the provisions of this section have no
application in case of Muslim males who are allowed to marry more than one wife, but
it applies to-Muslim women. Thus, there is always an interchange of action and
reaction and persons mostly become criminal by the chain of circumstances.91
That apart, certain criminal behaviours are so much diffused in our day-to-day
life that we almost forget that they are crimes. The reason is that such conducts do not
90 Sutherland and Cressey : The Principles of Criminology (6th Ed.) p. 77.

91 Thorsten Sellin : "Culture Conflict and Crime" (1938) p. 30.
carry with them any kind of public indignation. For instance, persons who are
penalised for violation of traffic laws are not ridiculed by society. From this
standpoint, criminals can at the most be considered as minority group without public
support. This in other words, means that right thinking members of society do not react
sharply to certain behavioural deviations but this certainly does not mean that they
have any appreciation for such delinquent conducts.
Multiple Factor Approach to Crime Causation
Despite repeated attempts on the part of criminologists propounding different
views to formulate a singular theoretical explanation for criminal behaviour, no
hypothesis could answer the issue satisfactorily. Eventually, the sociologists made use
of 'multiple-factor approach' to explain the causation of crime. The supporters of this
view believe that crime is a product of a combination of a variety of factors which
cannot be narrated in terms of general propositions. This view finds support from the
writings of eminent American criminologist William Heal}/, expressing his views on
multiple causation theory, Prof. Heal if observed that it is not one or two factors which
turn a man delinquent but it is a combination of many more factors—say eight or ten—
which cumulatively influence him to follow criminal conduct.92 He, however, agreed
that all the factors associated with a particular crime may not have equal importance as
a cause of that crime. The extent of their influence on crime may be in varying
degrees, some exerting greater influence on the crime while the others, the least. But
this theory has been vehemently criticised by Albert Cohen on the ground that it offers
no single explanation which can explain crime causation. Moreover, it is fallacious to
believe that crimes generate only in deplorable surroundings. The greatest shortcoming
of the multiple factor approach to crime according to Cohen is that the adherents of this
theory confused 'factors' with those of 'causes' of crime.
From the foregoing analysis it is evident that sociologists consider crime as a
product of environmental deviations and varying social conditions. The inter-relation
between criminality and some of these conditions may be discussed under the
following heads :
(1) Mobility
The rapid growth of industrialisation and urbanisation in recent years has led to
expansion of means of communication, travel facilities and propagation of views
through press and platform. Consequently, human interaction has gone beyond
intimate associations with increased chances of mobility. Migration of persons to new
places where they are strangers offers them better opportunities for crime as the
chances of detection are considerably minimised. Mobility, therefore, serves as a
potential cause of social disorganisation which may result in deviant behaviour due to
lack of family control.
Commenting on the impact of crime reports appearing in newpapers on
criminality, Barnes & Teeters observed that it encourages crime and delinquency in two
ways. Firstly, those with unstable mind and psychopaths are easily attracted towards
such crimes ; and secondly, with the frequent reporting of crime-news, people begin to
lose faith in law and law-enforcement agencies.93 That apart, the deviants learn new
techniques of crime through crime-news which are published in newspapers or
magazines.94
92 William Healy : "The Individual Delinquent", pp. 456-460.

93 Barnes & Teeters : New Horizons of Criminology (3rd Ed.) p. 186.
94 Taft : Criminology (4th Ed), p. 262.
(2) Culture Conflicts

In a dynamic society social change is an inevitable phenomenon. The impact of
modernisation, urbanisation and industrialisation in modern dynamic society may
sometimes result in social disorganisation and this may lead to culture conflicts
between different sections of society. The difference may be between old and new
values, local and imported values and traditional values and the government imposed
values.
Criminality arising out of cultural conflict theory has been well explained by
Shah and Mckay through their Cultural Transmission theory of crime which was a
dominant criminological theory of the 20th century. The theory simply states that
"traditions of delinquency are transmitted through successive generations of the same
inhabitation in the same way as language and attitudes are transmitted." The inability
of local communities to appreciate the common values of their residents or solve
commonly experienced problems causes tension leading to deviant behaviours. This is
how criminal traditions get embedded into the functioning of a community and they
co-exist alongside conventional values. Sutherland has termed this phenomenon as
"differential social disorganisation" which is more common with lower-class
neighbourhoods. He attributes three main causes for the culture conflict, namely, (1)
residential instability; (2) social or ethnic heterogeneity; and (3) poverty.
The shift of population due to migration or immigration quite often affects the
crime rate of a given place. The culture conflict between inhabitants and immigrants
results in deviant behaviour. In a recent study Ruth and Cavan found that Eskimos who
were free from the problem of crime until recently, now frequently indulge into
deviant behaviour such as, loitering, drunkenness and sex-offences due to their
migration to urban areas and social contact with non-Eskimos.
The immigration problem which India faced during Indo-Pak partition days in
1947 and Bangladesh partition in 1971 serves as an interesting illustration of cultural
conflicts arising out of social disorganisation. The inflood of refugees from Sindh and
North-West Frontier region in 1947 completely broke down the traditional social
structure of Indian society and resulted into enormous increase in crime. The incidence
of murder, arson, looting, kidnapping and rioting were necessarily an outcome of
socio-cultural variations in immigrants who had developed highly individualistic
tendencies due to disruption of their family life and loss of status.
The killing of thousands of people in Sri Lanka since 1986 due to ethnic riots and
confrontation between the Liberation Tigers of Tamil Eelam (LTTE) and the militant
forces of the government is yet another illustration on this point. The Tamilians in the
country are fighting against discrimination and are
demanding for integration with Sinhalese population.95
(3) Family Background
Sutherland holds that out of all the social processes, the family background has
perhaps the greatest influence on criminal behaviour of the offender. The reason being
that children spend most of their time with their parents and relatives within the
family. Children are apt to imbibe criminal tendencies, if they find their parents or
95 The Government of India, sent Indian Peace Keeping Force (IPKF) in consultation with the Sri
Lankan Government to suppress the LTTE guerillas in September 1987 and several persons were
killed in the clashes between the LTTE and IPKF till December, 1987. Even after the withdrawal
of IPKF from Sri Lanka in 1989, LTTE is continuing its fight against Sri Lankan Government.
Late Prime Minister of India Shri Rajiv Gandhi was assassinated by LTTE extremists in
Shriperambtur on April 30, 1989
members of the family behaving in a similar manner. The institution of family is

expected to cater to the basic needs of the children. Therefore, the child should feel
that he enjoys a certain privilege and protection in his family and that he is loved and
liked by his parents and members of the family. This feeling of security, warmth and
reliance makes children to learn the virtues of love, respect and duty towards others.
Thus, it is through the institution of family that the child unconsciously learns to adjust
himself to the environment and accepts the values of life such as respect for others,
faithfulness, trustworthiness and co-operation through his own life experiences. It
therefore follows that a child brought up in a broken family is likely to fall an easy
prey to criminality. Lack of parental control over children due to death, divorce or
desertion of parent or their ignorance or illness may furnish soothing ground for the
children to resort to criminal acts. Again, frequent quarrels amongst parents, undue
domination of one over the other, step-motherly treatment with children, frequent
births in the family, immorality of parents, misery, poverty or unwholesome family
atmosphere and the like may also lead to the neglect of child and finding no adequate
outlet for his talents, he/she may tend to become criminal in his/her life. To add to the
above list, unemployment, low income or parent's continued long absence from home
for the sake of livelihood are some other causes for child delinquencies.
With revolutionary changes in socio-economic conditions in India, the family
patterns have radically changed. Excessive outdoor indulgences of modern Indian
house-wife and a general tendency on the part of Indian educated women to be after
jobs has disrupted the harmony of Indian family life. This view finds support in That's
expression that home is growing a source of emotional tension', the role of family has
declined and its self-sufficiency jeopardised due to the outdoor interests of its
members. The modern wife is no longer confined to her domestic duties as a result of
which the internal discipline of the family is wholly shattered. Due to divided loyalties
of the parents, the child's personality is over-shadowed by frustration, hatred, jealousy,
revengefulness, indifference and dejection and in a fit of bewilderment he throws
himself into association with other delinquents. The want of care and affection, non-
fulfilment of the basic needs of children and their sad experience in the family lead to
their detachment from the family and they easily lend themselves into the criminal
world.
After a careful study of the family background of a number of delinquents, Donald
Taft' deduced the following generalisations which are significant from the point of
view of crime causation :
(1) Mobility among criminals is far greater than those of non-criminals. In
other words, delinquents change their place more frequently than the law-
abiding persons.
(2) The delinquents usually prefer to stay away from their family, parents and
homes.
(3) The homes of delinquents are often ill-maintained, insanitary and display
poor standard of living.
(4) The family life of most delinquents is usually disrupted and their parents
are either dead, separated or divorced.
(5) Experience has shown that most of the delinquents are subjected to
physical punishment by the parents in their childhood. Consequently they
hardly show any respect for the members of their family.
(6) A large percentage of criminals is usually hostile and indiffe/ent towards
their brothers and sisters.
(7) Delinquents are encouraged to follow criminality in their homes in either
of the following ways :

(i) The parents may not themselves be associated with the criminal act
but they might deliberately avoid to prevent their children from
indulging into criminal acts.
(ii) Children may learn criminal patterns through the process of
imitation. They begin to learn similar behaviour from their parents or
other members of the family.96
(iii) The parents who have embraced criminality' as a way of life like
those of professional thieves, pickpockets, prostitutes, etc. often train
their children for the vocation. It is, however, true that a reverse
process may also operate where criminal parents take all steps to
ensure that their children do not follow their foot-steps and keep
away from criminality. To take an illustration, it is often seen that
prostitutes usually take care to keep their children away from the
dubious profession so much so that they take all precautions to
ensure that their children do not even come to know that their mother
is a prostitute. So also, most of the notorious dacoits prefer to
dissuade their children from following similar criminal traits and
provide them best education for an upright and honest living. This
change in their attitude is perhaps due to the impact of education and
social transformation in recent decades.
Those who denounce the influence of family surroundings on criminality may
argue that this hypothesis is incorrect because cases are not wanting when persons
brought up in most down-trodden and deplorable family situations have become most
useful members of the society and have held prestigious positions. It may be noted that
family is only one of the multiple factors affecting criminal behaviour. Therefore, if a
child living in degraded family situations fin4s other surroundings favourable to his
upright growth, he adapts himself to those norms and eventually becomes a law
abiding citizen. Thus, if other conditions of the child remain conducive to his upright
living, the evil influences of degenerated family are held in check by other stronger
forces.
(4) Political Ideology
It is well known that the Parliamentarians who are law-makers of the country are
also politicians. They succeed in mobilising public opinion in the desired way through
the media of press and platform and finally enact suitable laws to support their
policies. Thus, political ideologies gain strength through legislative process thereby
directly influencing the criminal patterns in a given society. The liberalisation of
abortion law, imposition or withdrawal of prohibition laws, anti-dowry, protection of
women against domestic violence, prohibition on pre-natal sex-determination,
untouchability laws etc. are some of the examples to show as to how the concept of
criminality changes with the changed ideologies of the politicians and the government
in power. With the change in ideologies what was unlawful and illegal till yesterday
may become lawful and legal today and vice versa. The law-makers justify these
changes for the good of the society keeping in view the changing norms of civilisation
and culture. To take a concrete example, live-in relationship between the spouses
which considered highly immoral and illegal until a couple of years ago, is now
gradually being accepted as a permissible conduct in the society and even the Supreme
Court has declined to hold it as illegal holding that it is for the society to take a
96 Taft Donald : Criminology (4th Ed.) p. 145.

decision on this issue rather than the law court.

Again, political changes in a country may give rise to new political offences. The
excessive interference of politicians in executive functions of the Government
weakens the morale of the administrators as well as the police, with the result there is
spontaneous growth in crime-rate.97
With the coalition governments coming into power during 1990's, instability of
the government has become a common phenomenon in India. As a result of this, the
anti-defection law instead of being an inhibitor of floor-crossing, became an
opportunity for elected members to make quick money. This paved way for political
corruption which became an acceptable norm for MP's and MLA's who got ready
money in toppling or saving the government in power and did not even hesitate to
deposit it in bank98 or keep note bundles under their pillow. As smaller parties
emerged, coalition politics became inevitable. Political leaders would tend to maintain
their political parties financially sound99 and at the same time ensure themselves and
their families against the uncertainties of future. This led to increasing nexus between
politicians and organised criminals. This is followed by political bureaucracy-
organised crime nexus. Once politicians get involved, they become vulnerable and
there is continuous pressure on them to repeat the process.100
(5) Religion and Crime
The changes in religious ideologies also have a direct bearing on incidence of
crime in a particular region. It has been rightly said that morality can best be preserved
in a society through the institution of religion. The bond of religion keeps persons
within their limits and helps them to keep away fr6m sinful and criminal acts. The
declining influence of religion in modern times has tended to leave men free to do as
they like without any restraint or fear. Consequently, they do not hesitate to resort to
criminality even for petty materialistic gains. Looking to the present day Indian
conditions, things seem to be still worse. Religious places in most parts of India have
become dubious centres of vices. Cheating, stealing, exploiting and kidnapping are too
common in these places. The so-called champions of the cause of religion, namely, the
priests, the pitjaris and Pandas of these religious places arc virtually the plunderers
who do not hesitate to ransack the innocent pilgrims. They consider themselves to be
the agents of God and are intact more dangerous than the real criminals. It is,
97 The assassination of Late Sint. Indira Gandhi, the Prime Minister of India on October 31, 1984 at
her residence in New Delhi touches the climax of political crime in India. The incidence of violence,
arson, riots and looting in the State of Gujarat during February—June, 1985 further illustrates the
point that undue interference of political high-ups weakens the public as well as the police morale.
The mass killings in Punjab due to extremist activities during 1980's is yet another illustration
which touched its climax with the Akali leader Sant Harcharan Singh Longwal's assassination at
Sherpur village of Punjab on August 20, 1985. The Chief Minister of Punjab, Sardar Beant Singh
was killed alongwith 12 others in a bomb blast (RDX planted in car) by extremists in the State
Secretariat Chandigarh on 31st August, 1995. Late Prime Minister of India, Rajeev Gandhi's
assassination was also politically motivated.
98 JMM Bribery case in which Sibu Soren and Suraj Mandal took money to save the Narsimha
Rao government from toppling (AIR 1998 SC 2120).
99 The Tahelka Dot Com expose (March 2001) involving President of BJP Bangaru Laxman and
Samta Party Chief Jaya Jetley is an illustration on the point.
100 Examples are 2G Spectrum Scam (2010) involving Union Telecom Minister A. Raja; CWG Scam
allegedly involving political leader Suresh Kalmadi and his subordinates (2010); Bombay Adarsh
Housing Scam (2010) in which apartments meant for war-widows and soldiers who had been
crippled or maimed in combat, were grabbed by senior Army officials, in collusion with politicians
and bureaucrats. The Chief Minister of Maharashtra Shri Ashok Chauhan had to quit because of
his alleged involvement in this scam.
therefore, necessary that public opinion should be mobilised against the superstitions
which arc deep-rooted in Hindu religion and greater stress be laid on the spiritual
aspect of Dharnm rather than the rituals and formalities insisted upon by the priests.
This would help in reducing crimes in pilgrim places in India. It is desired that the
government must initiate stringent measures to save these sacred places from
becoming the centres of nefarious activities of anti-social elements.
Despite the fact that all religions speak of communal harmony and peaceful co-
existence, most wars on this earth are fought in the name of religion. The war between
Iran and Iraq for over eight years, the wars in Lebanon, and the continuing fight
between Catholics and Protestants in Northern Ireland and even terrorist activities in
India are being carried out in the name of hidden religious overtones. These divisive
forces contribute considerably to the incidence of murder, mass killing, destruction of
public and
private properties and other anti-social behaviour.101
(6) Economic Conditions
Economic conditions also influence criminality to a considerable extent. Present
day industrial progress, economic growth and urbanisation have paralysed the Indian
domestic life. The institution of family has disintegrated to such an extent that control
of parents over their wards has weakened thus leaving them without any surveillance.
Under the circumstances, those who lack self-control fall an easy prey to criminality.
The employment of women and their other outdoor activities have enhanced the
opportunities for sex crime. Again crimes such as hoarding, undue profiteering, black-
marketing, etc., are essentially an outcome of economic changes. Now-a-days money
is the paramount consideration to assess the social status of a person in society. Crimes
in higher circles of society can easily be wiped off through money. Unemployment
among the youths is yet another cause of increase in crime rate. If the energies of these
young persons are properly channelised, they can surely contribute to the national
man-power develompment.
It has been generally accepted that there is a strong relationship between
criminality and economic or income inequality as also between crime and
unemployment. But poverty per se is not the sole cause of criminality, it is only a major
factor in crime causation. It is the social disorganisation which accounts for criminality
among the poorest and not their poverty. Undoubtedly, there is close relationship
between unemployment and criminality and particularly, accounts for an
unprecedented rise in property crimes and a consequential increase in the arrest rate of
juveniles and youth. Those who are jobless or have less secure employment such as
casual and contract workers, are more likely to be involved in property related crimes.
Analysing the impact of economic conditions on criminality, Prof. Hermann
Mannheim observed that if we leave aside traffic offences, three-fourth of the time and
energy of the criminal law administrators of the world shall have to be devoted to
economic crimes.102 Focusing on the importance of economic factors in the causation of
crime, he pointed out that poverty contributes both directly and indirectly to the
commission of crime. However, poverty alone may not be a direct cause of crime
because other factors such as frustration, emotional insecurity and non-fulfilment of
101 The 'Operation Blue Star' in Amristar in 1984, Bhartiya Janta Party's 'Ekta Yatra' on 26
January 1992 ; Celebration of PAK-DAY in March 23, 1991, The Babri Masjid demolition incident
of December 1992 and Vishnu Mahayagna by Vishwa Hindu Parishad in Mathura on Shrikrishna
Janmasthami day (18 August, 1995) etc. amply demonstrate the role of religion in diffusing
criminality.
102Hermann Mannheim : Criminal Justice And Social Reconstruction (1958 Ed) p. 82.
wants often play a dominant role in giving rise to the criminal tendency.
The Marxist theory has emphasised that all human behaviour is determined by
economic factors. Supporting this view, Fredrick Engels attributed increase in the
incidence of crime in England in mid-eighteenth century to the deplorable economic
condition of the workers due to class exploitation. W./l. Bonger also adopted similar
approach in explaining crime causation and asserted that a criminal is a product of
capitalistic system,103 which created selfish tendencies. In such a system, each person
tries to extract maximum from others in return of the minimum from himself. He
identified many evils in the capitalistic system which were responsible for generating
crimes. In fact, the theory of Radical Criminology is based on this concept which
further explains that crime occurs due to the exploitation of the poor by the rich.
(7) Ecology of Crime
Ecology is the study of people and institutions in relation to environment.
Topographical conditions also affect the incidence of crime in a particular region or
locality. After a series of researches Enrico Ferri, the eminent Italian criminologist
analysed the crime index of his country and concluded that in the same country the
crime rate varies considerably from one region to another. Some typical crimes are
more peculiar to a particular region than other parts of the country. Similar
observations were made by criminologists in France, England and U.S.A. which
sufficiently established the influence of ecology on crime. It is well known that
violation of customs, excise and drug laws are more common in border areas and
coastal regions than in plains. Illegal felling of trees and violation of fore&t laws is an
every day occurrence in forest regions.
In India, the impact of ecology on crime is apparently to be seen in dacoit-
infested forest regions and ravines of Rajasthan, Madhya Pradesh and Uttar Pradesh
where opportunities for escape and detection are plenty. Similarly, pilgrim places of
India are the breeding ground for all sorts of anti-social activities such as cheating,
stealing, exploiting, etc. The cheats operating in the guise of fortune-tellers and Sadhus
are often the first rate criminals who carry on their dubious activities right under the
nose of the custodians of law in these so called holy places.
The proponents of ecological theory attribute social disorganisation as the main
cause of criminality. They believe that treating or punishing the individual offenders
would do little to alleviate the problem and the solution is to be found in making
efforts to stabilise the social t ganisation and promoting community feeling,
particularly among youths. As DurkJieim rightly put it, "the overall disorder and
disorganisation, social and personal, shifts behaviour in the direction of crime".104
The regional comparisons of crime rate in different parts of the country
sufficiently indicate that certain crimes are peculiar to a particular location. It can
therefore, be inferred that ecology of crime consists in the study of influences such as
neighbourhood, population, topographical factors, etc., on criminals considered from
the point of view of location.105 Commenting on this aspect, Donald Taft observed that
"ecology of crime may be studied in terms of location of criminal or residences of
delinquents or some supposed influence upon crime which has distribution in terms of
space and topography”. He further observed that criminals are often mobile and there
seems to be a casual relationship between location of delinquency and the criminal. It
may, however, be pointed out that ecology of crime need not be confused with the
103Infra, Chapter VII.

104 Durkheim Emile : The Division of Labour in Society (lllionis, 1933) p. 82.
105 Moris : The Criminal Areas (1957 Ed.) p. 1.
proximity of crime and social conditions. The predominant consideration in the

ecology of crime is topographical conditions of different regions and their impact on
causation of crime peculiar to those places. Thus, ecology is undoubtedly one of the
multiple factors of crime causation.
(8) Influence of Media
The importance of mass media in influencing human mind has been ] repeatedly
emphasised by some experts. Experience has shown that television and films have the
maximum impact on the viewers due to combined audio-visual impact. Most of serials
or films shown on television or cinema 1 halls depict scenes of violence which
adversely affect the viewers, particularly the young boys and girls who often tend to
imitate the same in their real life ] situations. The rising incidence of juvenile
delinquency is essentially the result of evil effect of violence and vulgarism and
undesirable sex exposures depicted j in movies or television.106 Likewise,
pornographic literature also has an unwholesome influence on the impressionable
minds of the youth which j generates criminality among them.
Most criminologists believe that films and television are major contributors I to
violent behaviour. A survey conducted by the Broadcasting Group of the j House of
Lords indicated that exposure to media violence was closely linked ] with aggressive
behaviour. But Hagell and Newbury opposed the view that there was any real link
between violent media images and criminality after finding that persistent offenders
watch films or television far less than non-criminals. ■ Gillin has also expressed doubt
about any real link between media violence and criminality. According to him, films,
T.V. and other media teach methods of violence to those who are already susceptible
to them but it does not go further than that.107
Again, the role of media in helping the mushroom growth of fake and fictitious
educational institutions which are duping large number of degree-seekers, needs a
particular mention in this context. The modus operandi of these institutions is simple;
they splash full page advertisements in leading newspapers, collect huge sums from
franchises and fat course-fee from students and make a huge profit leaving students
to fend for themselves.108 This is particularly true with the rotten computer training
institutes which have mushroomed all over the country under different impressive
names. These 'fly-by-night' computer institutes are taking students for a ride through
attractive advertisements and on-line contracts. Therefore, there is urgent need for
framing a law to curb malpractices by these institutes through misuse of media and
computer net-work. To take a concrete example, Murtaza Mithani owned Wintech
Computers, a Information Technology education company was launched with a
splash in 1998-99. The company reportedly collected Rs. 10 to 20 lakhs from each
franchisee. Similarly, it charged a fee ranging from 15 to 30
thousands for different courses. One fine day, the promoters of Wintech Computers
quietly disappeared, leaving thousands of students in a lurch. There is no response
106 Computers and Internet have opened flood gates for pornographic material being
available on websites which has adverse effect of moral health of youngsters.
107 Gillin : Censorship and Obscenity, (1978) p. 76.
108 As many as 92 private universities were established under the Chhatisgarh Private
Vishwavidyalya (Establishment & Regulation) Act, 2002. The Act was challenged by a P1L by
Prof. Yashpal, the fanner chairman of UGC. The Supreme Court held the said Act ultravires
and all the 92 Private Universities established thereunder were quashed as it was diluting the
standard of higher education (See Prof. Yashpal & Another v. State of Chhatisgarh decided by SC
on Feb. 11, 2005).
from company's headquarters in Delhi. Similar is the case of a Mumbai based Zap
Infotech company which duped thousands of students.
Thus, it would be seen that in recent years the media has a powerful effect on
public perceptions of the dangers posed by particular events, actions or behaviours.
The emotive power of the media may, however, sometimes lead to illogical and ill-
conceived conclusions. At times, it may be noticed that crime depiction in the media
is deliberately distorted to suppress reality. Again, there may be occasions when an
act committed by an influential person or a politician may not be given coverage or
condemnation despite being patently criminal or anti-social.
Crimes in Urban and Rural Areas
Ecological aspects of crime can best be demonstrated by an analysis of a variety
of crimes operating in urban as well as rural areas. Many crimes which are common in
urban areas are unknown to rural setting. The concentration of industry and
commercial activities in urban region has given rise to the problems of immigration,
mobility of population and scarcity of residential accommodation. The availability of
quick means of transport in cities offers better opportunities for delinquents to escape
detection and arrest. The incidence of juvenile delinquency, shop lifting, petty thefts
and sexual offences are more common in slum areas and poverty-stricken homes. That
apart, the recurrence of white collar crimes, bank-offences, frauds, embezzlement,
racketeering and the like are mostly confined to urban regions. Conversely, some
crimes are exclusively confined to rural areas and they rarely occur in cities. Thus, the
thefts of crops and cattle, arson and trespass are predominantly the offences of rural
setting. Commenting on the incidence of crimes in urban and rural regions Donald Taft
opines that the number of crimes committed in rural areas are far fewer than those
committed in urban cities because of the greater homogeneity of rural population,
lesser mobility and absence of adequate opportunities for the criminal to escape.
Greater mobility due to migration and immigration of labour, overcrowding in urban
dwellings, the absence of effective family or community control and lack of
constructive influences are the main causes for multiplicity of crime in urban regions.
The rural migrants in new cities are unable to easily adjust to the impersonal
heterogeneity of urban life. They are no longer controlled by the traditional norms and
family loyalties. They become restless persons without associates. In the words of
Durklieim, they become small particles in that world of "disorganised dust". This
hetrogeneity of urban life destroys their earlier congenial social relationships, creating
a social vacuum which proves to be a fertile ground for criminality. Under such
conditions, violence and crime proliferate.
Again, the inhabitants of rural areas are by nature simple and law-abiding as
compared with their urban counterparts, probably because of illiteracy and their
modest living. Moreover, limited contact with outside world keeps them unaware of
the technicalities of criminal life. It is generally believed that crimes relating to
property are predominantly committed in urban areas while those against person are
more common in rural regions. However, this hypothesis does not seem to be wholly
correct. Property crimes are as common in villages as in towns. Likewise, crimes
relating to person are as rampant in cities and towns as in rural areas.
Neighbourhood influences
Neighbourhood influences also have much to do with the nature of crimes in a
particular locality. Thus, thickly inhabited areas, town and cities offer frequent
opportunities for sex offences and crimes relating to theft, bootlegging, burglary,
kidnapping, cheating, deceit and so on. Cases of pick-pocketing are common in
railway stations, bus stands and other halt places. Thefts of footwear are too common
in temples and worship places in India.
Ecological study of prisons further reveals that certain types of crime are peculiar
to the prison-life. For example, homo-sexuality is common among the prisoners
because of their inability to resist sexual impulse due to deprivation of family life. That
apart, the convicts quite often indulge in mutual fights and quarrels in an attempt to
show their muscle power and establish dominance over other prisoners in regard to
their skill in criminality. Violent offenders generally resort to destruction of prison
property and offend prison authorities on petty issues.
Another significant feature of these delinquent areas is the location of certain
anti-social institutions in the neighbourhood. These include prostitution houses,
gambling dens, brothels and similar other dubious institutions. These areas of vices are
delinquency-ridden and offer a fertile ground for organised criminals. The inhabitants
of nearby locality are easily influenced by these vicious activities and thus lend
themselves into the life of criminality.
W.I. Thomas, the famous sociologist of the Chicago School asserted that inability
of a neighbourhood to solve its problems together leads to social disorganisation
leading to unconscious motivations for crime. Inability of a group to engage in self-
regulation turns them towards delinquency.
More recently, there has been a tendency to correlate certain places of recreation
with the ecology of crime. The cinema theatres, swimming pools, sport grounds, and
race courses generally offer a favourable atmosphere for delinquencies. But this is
rather an oversimplification of facts. As a matter of fact, the frequency of crime in
these places has little to do with their location. In fact, it is the environmental and not
the ecological influence which generates crime in these places. Moreover, there are
quite a large number of law-abiding members of the society who do not become
criminals even after coming into contact with delinquents in these places of recreation
and entertainment.
Conclusion
An analysis of the foregoing socio-cultural and economic explanation of crime
suggests that no single theory can offer a satisfactory explanation for crime causation.
The reason being that these theories are more or less of a general type and cannot
explain particular situation of delinquency. It, therefore, follows that delinquent
behaviour is an outcome of the combination of a variety of factors which create
situation conducive to crime. With the widening of social interaction due to the impact
of industrialisation, urbanisation, modernisation and democratisation, there is greater
need for community control because law alone cannot repress the rising trend in
criminality in modern times.
It must, however, be emphasised that crime is an index of social pathology.
Crime and violence reoccur when society is disorganised, floundering and beset with
social and economic problems. Social disorganisation is reflected by the conflict in
social values which interrupts harmony of the society. Therefore, crime must be
understood on the basis of human behaviour and the social and emotional needs of the
person. The problem of prevention of crime should be dealt with in a broader socio-
economic perspective so as to meet the emotional needs of the individual as a member
of the community. Since crime is a social fact and human act, the process of dealing
with a criminal does not come to an end after the offence has been legally defined and
penalty imposed on the offender in accordance with law. It is also essential to
understand crime as a social and individual phenomenon and the need to prevent its
recurrence or repetition by adopting an attitude conducive to the resocialisation and
reformation of the offender.

India being a land of diversity, people of different castes, creeds and
communities live together. The divergence in norms, customs, taboos, traditions,
values and moral standards of the people belonging to different groups often leads to
frequent clashes which provide fertile ground for the incidence of crime. It may
further be added that with the growing complexities of modern life, many anti-social
acts which were hitherto considered to be immoral and offensive and received public
condemnation have now almost become a part or parcel of everyday life. For example,
bribery and corruption have lost their credence as an offence and are being frequently
resorted to for getting any work done quickly. In result, the difference between
criminals and non-criminals has drastically narrowed down. That is to say, both
criminals and non-criminals indulge in similar activities, the only difference between
them being that the former are caught in legal net-because of their lack of skill and
vigil while the latter go scot free being shrewd enough to manipulate their non-
detection and escape. Thus, it is evident that the attitude of the society towards
criminality has changed with the changing patterns of Indian society.
Commenting on the magnitude of corruption in India Bertrand de Speville, the
International Anti-corruption expert and consultant to the State Government of Andhra
Pradesh, once observed that it is either need or greed which is responsible for making
an individual a corrupt person and therefore, it is not correct to think that rich people
are less corrupt and poor people are more. Generally, the greed for money is the
motivation for corruption. He was, therefore, not surprised to find that there was
corruption even in judiciary and police department in Andhra Pradesh.109
India today is faced with Manifold problems of socio-economic and political
dimensions. There has been unprecedented increase in crime and incidents of violence,
rape, dacoities, financial scams etc. which have made the life and property of the
people insecure. Gangsters are extorting money from people at gun-point and do not
even hesitate to kill them if they do not yield to their illegal demand. Young women,
girls and even children are being raped or sexually abused mercilessly. Corruption is
rampant in almost all walks of life and there has been criminalisation of politics to
such an extent that people have begun to shun politicians. The political leaders and the
so called people's representatives are guided by one single philosophy, "menus do not
matter, go and get what you zvant and use all available means to get it". Thus, Indian polity
is witnessing a switchover from "spiritualisation to criminalisation".110 In short, India
is heading fast towards degeneration if the current wave of materialism, opportunism
and vandalism is not timely checked. In order to overcome this deterioration in Indian
society, there is need to restore the cherished values of honesty, sincerity and integrity
which have lost their credence in the present Indian context where 'expediency'
predominates all virtues of human life. Those found indulging in corruption,
vandalism and similar other criminal activities should be sternly dealt with and
rigorously punished.
109 Times of India (Delhi) dated April 28, 2001.

110 To quote the latest illustration, Pappu Yadav a RJD Member of Parliament who was facing trial
for murdering C.P.M. legislator Ajit Sarkar in 1998 was twice sent back to jail by the Supreme
Court by refusing the bail but was given fresh bail by Patna High Court to file nomination papers
from Madhepura Lok Sabha seat from Bihar vacated by Railway Minister Lalu Prasad Yadav.
Deciding the appeal for grant of bail to Pappu Yadav, the Supreme Court finally ordered that no
Court of the country should entertain bail application of Pappu Yadav until his case is finally
decided.
Chapter VI
Tentative Theory of Crime
P explanation for crime causation.

has suggested that no single theory can offer a satisfactory
rof. Edwin H. Sutherland
Therefore, in absence of a single theory of crime
causation, criminologists have offered different explanations to justify their own
theory to explain delinquent behaviour. Most criminologists have preferred a multiple
approach to criminal behaviour which suggests that crime generates not as a result of
one solitary factor, but as a result of combination of variety of factors.
The exponents of classical school explained crime in terms of free will and laid
greater emphasis on 'crime' rather than the 'criminal'. The neo-classists, on the other
hand, attributed criminality to mental depravity of the offender which incapacitates
him to distinguish between rightful or wrongful conduct. There is yet another view
supported by positivists which lays greater stress on the personality of the offender
and the processes which operate in making him behave criminally.
Criminality as a part of social behaviour :
As stated earlier, criminality is essentially a part of social behaviour which
emanates out of the relationship of individuals in society. The life experience of the
individual, his different associations, environment and legal provisions in force, all
cumulatively affect his behaviour. Therefore, Donald Taft rightly observed that men
react to social structure and values and institutions derived therefrom. As such, the
behaviour whether criminal or non-criminal, can be regarded as a combined effect of
culture and environment.
The tentative theory of criminal behaviour seeks to evaluate the impact of social
culture and values on criminality. History reveals that in every society certain social
values are greatly appreciated while there are others which are condemned or
disapproved. In other words, the values which are cherished bring satisfaction to the
members of the community while those which are disapproved bring them discontent.
Society, through its law enforcement agencies tries to encourage thr approved patterns
and discourage disapproved behaviours. The basis of these legal sanctions lies in
customs, religious precepts, public opinion, conventions and traditions of the
society.111 Thus, the accepted social norms which are otherwise called as lawful
conduct and disapproved norms which are unlawful conducts in a given society are
reflected in its legal system. It can, therefore, be inferred that the laws enforced in a
particular society serve as a mirror reflecting the socio-cultural values of a community.
To quote Donald Taft again, "criminology, strictly speaking, is concerned only with
111 R. Deb : Principles of Criminology, Criminal Law and Investigation (Vol. 1), 2nd Ed.,
p. 2.
acts which are made punishable under the criminal law". It is significant to note
that laws only define the prohibited conducts which are punishable, and whatever is
not specifically punishable, shall be permissible as lawful behaviour. Since culture and
social values differ according to time and place, the laws are a variable content
changing from society to society depending on their accepted norms.
It is needless to stress that criminality is greatly influenced by the existing law
and its sanctions. There are, however, certain values which in spite of their unlawful
nature, command respect in society. For example, in India the caste system and
untouchability stand abolished,112 yet frankly speaking, the society is still reluctant to
shed it off completely. It is common knowledge that in India the elections are fought,
won and lost on caste considerations. So also although the daughters have acquired a
right to equal share with sons under the Hindu Succession Act, 1956, yet it still
remains questionable as to how many women actually assert their claim to equal share
in property with their brothers. The obvious reason for this apathy lies in the fact that
the values accepted and continued from times immemorial in Hindu society cannot be
thrown off by handful of legislative measures unless the members of society are
voluntarily willing to accept them whole-heartedly. The post-independence era in India
has created new situations particularly on the political plane. Today public welfare is
sacrificed for personal gains. What would otherwise be punishable for an ordinary
citizen is excusable if done by politically influential persons under one or the other
pretext. Scant regard for payment of huge arrears of income-tax by political leaders
(and also noted film stars, sports persons etc.) and their involvement in corrupt
practices, scams, bunglings, etc., and links with the underworld criminals sufficiently
reflect upon the vitiated political climate of the country. The abuse of political power
by showing favours to chums and favourites has become common with the
politicians.113 The politicians seem to have imbibed these traits from the past traditions
of British rule in India when the administrators could use their authority and power for
their personal gains. Thus, the past Indian social structure and culture has a direct
bearing on the present law violations by politicians and administrators. The only
difference is that the people today can at least voice their feelings of discontent which
they could not otherwise do during the British colonial rule in India.
The social values in a given society command equal respect from criminals as
well as non-criminals. But at t i m e s , h a n d f u l of persons are placed in such situation
that they ignore these accepted values altogether and follow prohibited norms which
are commonly termed as crime. A person who is without any source of income may,
out of frustration and disgust be forced to commit theft or similar crime if he fails in
his legitimate efforts to secure a livelihood, although he is fully aware that what he is
doing is prohibited by law and against the accepted norms of society. Likewise,
gambling though illegal and disapproved by society is resorted to by many persons out
of temptation to gain money quickly without any labour. Again, persons belonging to
high social
112 The Protection of Civil Rights Act, 1955.

113Common Cause (A Regd. Society) v. Union of India, AIR 1996 SC 3538 (Petroleum Minister Captain
Satish Sharma made illegal allotment of Petrol Pumps & Gas agencies); Shiv Sagar Tiwari v. Union
of India, AIR 1997 SC 1483 (Urban Dev. Minister Shiela Kaul's illegal allotment of shops/stalls to
her relatives, domestic servants etc.
Tentative Theory of Crime 91
status indulge in white collar crimes because it entails no loss of status in society.
In short, crimes generate out of the delinquent behaviour followed by a minority group
of persons in society despite there being a social disapprobation for them.
Cultural Transmission Theory
The noted socio-legal researchers Shaw and Mckay have developed the theory of
cultural transmission which states that "traditions of delinquency are transmitted
through successive generations of the same region in the same way as language,
customs and attitudes are transmitted. For example, lower-class neighbourhoods
simply tend to have different values and are organised in a different way that best
serves their interests and in this endeavour they sometimes unknowingly accept
criminal traditions in their life struggle. Sutherland has termed this phenomenon as
differential social disorganisation. He pin-points three traditional sources of social
disorganisation namely, (i) residential instability; (2) racial or ethnic heterogeneity;
and (3) poverty. In this way, new 'criminal traditions' get imbibed into communities.
Shah also agrees with Sutherland that three D's viz. Disease, Deterioration and
Demoralisation are three main causes of crime. Robbinson (1950) has, however,
criticised the cultural transmission theory and termed it as "ecological fallacy".
Socio-cultural patterns and Criminal behaviour :
The general accountability of the cultural structure of society to criminal
behaviour can be summarised as follows :—
1. The socio-cultural disparities prevailing in society between rich and poor or
high or low castes, compel the underprivileged to resort to criminality either to escape
miseries and disgrace or to satisfy their basic needs. Thus, crimes in slums, broken
homes, prostitution houses, gambling dens and violation of prohibition or drug laws
are the natural consequences of such structural differences in society. The crimes
relating to property are generally committed by persons who are in quest of earning
money without much labour or work. It is, therefore, obvious that lesser the disparity
between different classes of society, lesser will be incidence of crime in that society.
The impact of the twentieth century materialism is so great on human society that there
has been an overall increase in the number of property crimes throughout the world.
The under-privileged who do not have much appreciation for accepted social norms on
account of their bitter experiences, prefer to organise themselves into different anti-
social groups and thus lend themselves into criminality.
2. Pattern setting by the privileged and influential groups of society such as the
politicians, industrialists, lawyers, engineers, doctors, bankers, businessmen, etc., play
an important role in appraisal of criminal behaviour by the persons belonging to under-
privileged class. It is common knowledge that Indian society is fairly tolerant about the
exploitative tendencies of top ranking businessmen and industrialist who quite often
resort to white collar crimes and other illegal methods for their personal gain. Bribery,
corruption, tax evasion, black-mailing and speculation are common among the persons
of high social status. It is well known that there is a great divergence between the
prescribed codes of ethics for the professional lawyers and their practise. The success
and reputation of a lawyer depends largely on the number of cases won by him. This
obviously requires great skill in arguing cases and defending the interests of clients by
all possible means. It often involves resort to unethical practices such as toutism, unfair
bargaining with colleagues and other unfair tactics. These methods adopted by this
prestiged class of society indirectly set pattern for the normal tune of the society. Since
the criminals often remain in close contact with their counsel, the former are often
influenced by the latter's behavioural pattern and thus tend to learn unethical practices.
3. As regards the politicians who claim themselves to be custodians of society,
less said the better. They do not even hesitate to make use of their political influence
and contacts with high officials for their personal gain and are at times tempted to
indulge in nefarious activities which are offensive and even anti-social in nature. More
often than not, they resort to corrupt practices for their personal advantage. At times
they also seek the help of notorious offenders and anti-social elements to accomplish
their political ends. Politicians very often violate the codes and ethics of their party,
particularly at the time of polls. They indulge in all sorts of tactics and malpratices
which are prohibited under the election laws. Obviously, such conduct on the part of
political leaders has an adverse effect on youngsters who tend to follow the same
course of conduct to achieve success in their pursuits. This trend is well illustrated by
the tension that prevails among the rival groups of students who contest elections for
any office of the college or university unions. All sorts of unworthy means and foul
tactics are adopted in fighting these elections. After the results are announced, there is
face to face fight and the winning candidate is subjected to threats and assault by the
defeated group. It needs no mention that these tactics are followed by the students
because they observe the political leaders also resorting to similar tactics at the time of
general elections. That apart, it is common knowledge, that political leaders themselves
are patronising the students to fight elections in educational institutions on party lines.
It would be pertinent to refer to the historic case of former Prime Minister of
India Shri P.V. Narasimha Rao,114 to show how politicians use (misuse) their political
position and power for their personal advantage by flouting law with impunity. He,
with the help of his comrades successfully manoeuvered to purchase the right to
remain in power to rule the country by bribing the Members of Parliament at the time
of 10th Lok Sabha elections held in 1993. The Congress (I) party was short by 4
members for simple majority.
In February 1996, a complaint was filed with the CBI alleging that Shri
Narasimha Rao along with three others hatched a criminal conspiracy to muster
support of four Jharkhand Mukti Morcha (JMM) MPs, namely, Suraj Mandal, Shibu
Soren, Simon Marandi and Shalender Mehto and some others by bribing them to the
tune of over three crore rupees.
The Special Judge designate on the basis of records came to the conclusion that
there was sufficient evidence to justify framing of charges and to initiate prosecution
of all the above named persons under section 120B of I.P.C. read
114 P.V. Narasimha Rao v. State (CBI), AIR 1998, SC 2001. Finally, Shri P.V. Narasimha
Rao and four JMM MPs' were acquitted by Delhi High Court on March 15, 2002.

with Section 7 and Section 12 or 11 and Section 13 of the Prevention of Corruption
Act, 1988.
The accused pleaded privilege and immunity under Article 105(2) as they
alleged that the act was related to voting in Parliament. The Special Judge rejected
the plea of the accused on the ground that the alleged charges were for giving and
taking bribe outside Parliament and voting was not under adjudication at all. The
revision petition filed by the appellants against the said order of the Special Judge
having been dismissed by the Delhi High Court, the accused moved the Supreme
Court Constitution Bench of five Judges.
The Supreme Court by majority of 3 : 2 allowed protection against criminal
prosecution under Article 105(2) of the Constitution conferring privileges to MPs
and held that they are not answerable to Court of Law for alleged conspiracy and
bribe giving and taking. However, Justice Dr. Anand and Justice Agarwal delivering
a dissenting judgment upheld the High Court's finding that there was no justification
in making a distinction between 'takers' and 'givers' of bribe. The Court observed
that clauses (2) and (3) of Article 105 confer privileges on MP to secure full freedom
to member while participating in Parliament's proceedings in House but it certainly
does not extend to case of bribery or corruption by a MP.
It is submitted that the judgment in Shri Narasimha Rao's case nullifies the very
basis of anti-corruption law and there seems no moral, ethical or legal basis to allow
MPs immunity for such illegal acts which if committed by a common man would
make him liable to be punished severely.
The case of A.R. Antuley v. Union of India,' may also be cited to show how
corruption got bogged down in appeals, cross appeals, petitions imd reviews. The
entire case lingered on for eight long years from 9th June 1980 to 29th April 1988
wherein the resourceful and manipulative litigant resorted to the strategy of delay
and petition applications to court raising hyper-technical issues. Commenting on the
findings of the case Professor Upendra Baxi wrote, although he did not intend to
"attribute any improper motive to the Supreme Court Judges", he would surmise that
the "political complexion of the case could not have been distant from the judicial
mind". The case amply demonstrates how resourceful litigant can frustrate a
litigation for corruption against him and how he can benefit from rigid technicalities
of the court procedure.
It would also be pertinent to refer to the impeachment motion brought against
Justice Ramaswamy on 10th May 1993 to show how precepts of morality and ethical
values were thrown to winds by the Parliamentarians in power despite the fact that
the Supreme Court had approved the charges against Mr. Justice Ramaswamy. The
Congress Party in power, by sheer political strategy of abstention from voting on
impeachment motion, saved him from being condemned. It is rather unfortunate that
for the first time in the history of Indian Judiciary a Judge of the Apex Court was put
in the dock accused of corruption and abuse of power and the Parliament unheeded
by public opinion, got him scot-free. It is, however, a different matter that
subsequently he decided to resign on 13th May, 1993.
1. (1988) 2 SCC 602.

conclusion that each one of these theories explains only a few types of crime while it
does not have an answer for certain other kinds of crime, liealy and Sheldon's views
give no explanation for the incidence of white collar crimes which are otherwise
satisfactorily answered by W.A Bonger's economic theory and the theory of
differential association propounded by Sutherland. It may, therefore, be inferred that
the cultural theory of crime being tentative and founded on social value
considerations, can answer every behaviour whether criminal or non-criminal, and
offer a satisfactory explanation for all crimes.
It has been generally accepted that every criminal is a product of his own
personality as also his peculiar social experiences of the general culture. This implies
the acceptance of laws of 'cause and effect' in human behaviour and denial of the free
will theory of the classical school. The view that crime is a result of the interaction of
multiple factors seems to be more logical to explain the crime causation. It must,
however, be noted that if reliance is placed on free zvill’ concept of criminality, it will
mean that every individual is free to act as he likes and under these circumstances,
prevention of crime will be rather impossible. Conversely, if the conditions which
extenuate crime can be known, they can help in eliminating crimes or at least
minimising them to a considerable extent. Moreover, the background of crime has a
direct bearing on penal policy inasmuch as the penal programme is aimed at
rehabilitation of offenders through adequate means. It must be stated that criminals
as a class comprise a large variety of persons who may be adult or child, male or
female, shrewd or ignorant, mentally sound or emotionally disturbed, white collar
criminals or those committing predatory crimes, prostitutes, pimps and many other
types of offenders. Each of these categories of criminals are a product of peculiar
circumstances and, therefore, punishing them may not serve the desired purpose. It
would, therefore, be prudent to re-shape the penal policy on sound principles of
reformation of offenders so that the object of punishment is fully accomplished. This
approach will perhaps be the most fitting contribution to the cause of penal justice.115
Robert K. Merton, in his interesting study on social theory and social structure
observes that social structure strains the cultural values considerably and when
cultural regulation of behaviour weakens, it furnishes a breeding ground for
criminality.116 Referring to the problem of criminality in United States, Donald Taft
aptly observed that criminal patterns are products of general culture and are vitalised
by historical and social processes.117
Austin T. Turk has asserted that social conflict and social disorganisation was an
inevitable and unescapable part of social life. If there was no social disorganisation,
it would be indicative of the fact that the individuals are being excessively controlled
or coerced by those who are in power. On the contrary, too much conflict and
extreme disorganisation would also not be conducive for the progress of society.
While talking about social disorganisation, Turk distinguishes between cultural
norms and social norms. According to him, cultural norms set out what behaviour is
or is not expected while the social norms represent what the actual behaviour in
society is. For the authorities in power, the cultural norms are usually reflected in
laws framed for the society and social norms are the enforcement of those laws.
These social norms represent the actual behavioural patterns of the subjects.118
115P.K. Sen : Penology Old and New (1943 Ed.) p. 11.

116Robert K. Merton : Social Theory and Social Structure, p. 131.
117 Donald Taft : Criminology (4th Ed.) p. 275.
118 Turk Austin T. : Criminality & Legal Order (1969) p. 92.
Cohen and Felson (1979) hold that in order to eliminate crime, there is need to
address three conditions, which generate criminality, namely, (1) to disintegrate the
pool of motivated offenders; (2) tap the suitable targets which provide opportunity
for crime; and (3) ensure effective, guardianship for children and youth. They
contend that the social disorganisation theory essentially relates to place rather than
people and, therefore, to understand it, focus must always be on the surroundings or
ecology of the place. Cohen founded his theory of social disorganisation on the
following assumptions :—
(1) Crime and delinquency are caused primarily by social factors which he
terms as environmental determinism.
(2) Crime figure is reflected better in field work rather than the Government
official statistics.
(3) The city i.e. place or location is the perfect natural laboratory for crime
study.
(4) The components of social structure are unstable and varying depending
on socio-economic and political conditions of the region.
(5) Lower strata of society is worst affected by these instabilities; and
(6) Human nature is basically good but subject to vulnerability and inability
to resist temptation.
The disjuncture between cultural and social norms not only induces conflict,
but also leads to social disorganisation which eventually provides ground for law
breaking and criminalisation of individuals.119
In the Indian context, the impact of socio-cultural taboos of Indian society on
criminality is more or less direct and conspicuous. The Indian society being complex
and competitive, there is considerable conflict which often takes the form of crime.
Besides the criminals, exploitative tendencies are rampant among non-criminals as
well which reflect criminogenic elements in their general culture. This accounts for
considerable increase in crime and at the same time ineffectiveness of punitive
agencies to combat crime. The only remedy that seems in sight is need for public
awakening through sound education particularly in rural areas. An integrated
educational programme with emphasis on legal literacy may perhaps be useful to
inculcate respect for law and rightful conduct among the people in general and the
rural masses in particular. Thus, there is need for greater emphasis on prevention
rather than punitive measures. Thomas Fuller rightly observed, "to punish and not to
prevent is to labour at the pump and leave open the leak". It must be borne in mind
that criminality is a curable deviance because every man is born good and it is only
because of the stresses and strains of modern age that may lend him into criminality.
The criminal is not only a mentally depraved or emotionally disturbed person
but also a victim of unfavourable circumstances. Diverse factors, such as
physiological, psychological, social, cultural, environmental and economic, are
responsible for his anti-social behaviour. He, therefore, needs individualised
treatment just like a sick person. With a view to ensuring effective reformation of
criminals, their categorisation according to the gravity and nature of the offence is
utmost necessary. Dr. M.f. Sethm has suggested classification of criminals into four
broad categories from the point of view of their treatment and correction120 as follows
:—
119 Turk Austin T. : Criminality & Legal Order (1969) p. 92.

120 Jehangir M.J. Sethna : Sethna's Society & The Criminal (5th Ed. 1989) pp. 186-191.
1. Psychotic and neurotic offenders need treatment without the necessity of

any punishment ;
2. Hardened and habitual offenders need to be reformed while being
punished ;
3. White collar criminals need to be punished without any treatment ; and
4. The first offenders, traffic law-violators etc. need neither punishment
nor treatment, but simply admonition or release on probation.
The above categorisation of offenders, besides being most scientific and
logical, is based on sociological analysis of crime and provides a sound basis for
working out strategies for crime prevention and reformation of criminals. It is based
on the sound assumption that human nature is complex and it is not possible to
comprehend it fully. It has, however, been realised that all human beings do not
respond similarly to a given situation. Thus, two individuals may commit the same
crime, but each act differs from the other in its social, economic, psychological and
environmental ramifications. This basic understanding has led to the innovation of
individualised treatment methods of offenders for their resocialisation and
rehabilitation in the community. Treatment reaction to criminals should be
commensurate with the societal reaction to crime.
As rightly pointed out by Durkheim Emile, criminality persists in all societies
and it is impossible to have a society totally devoid of crime. Therefore, all societies
generate some rules and provide penal sanctions for their breach. He further argued
that crime originates in society and is a fundamental condition of social organisation.
The changes and progressive shift in societal norms and economic stai*dards
necessitate simultaneous change in laws and rules. However, when there is sudden
change in power, wealth or factors of control, the societal norms are often
overthrown resulting into lawlessness and multiplicity of crimes. The state of
lawlessness existing at the time of abrupt social change disrupts normalcy and
people's behaviour is more likely to move in the direction of crime and criminality.121
121Katherine S. Williams : A Text Book on Criminology (1st Indian Reprint 2001) p. 345.
Crime and Economic

Chapter VI Conditions
Thedetermining
proposition that economic life is fundamental and therefore, has the
influence upon the social and cultural values is as old as the human
civilisation itself. This connotes that economic factors influence the nature and form
of all social patterns and control all other aspects of human life. Thus, criminologists
have tried to explain crime in terms of economic conditions through what they
called as economic determinism. In the words of Carl Marx (1818-83) economic
conditions determine the general character of the social, political and spiritual
processes of life and with the change of economic foundations, the entire
superstructure is also rapidly transformed. Those who support this view concentrate
on the economic aspect of crime and analyse the impact of economic conditions on
criminality. Their assertion that economic forces have been interacting right from
the inception of the human society has a historical background. It is well known that
in early societies when economic resources were limited, struggle for existence and
survival of the fittest was supposed to be the law of nature. Thereafter, as the society
advanced, increase in production yielded surplus as a result of which the system of
barter and exchange originated. Gradually, money gained importance in human life
so much so that it has now become the sole determining factor of a person's social
status in modern society.
Legal philosophers of all ages have accepted that economic conditions have a
direct bearing on crime.122 Aristotle, the Greek philosopher commented that poverty
endangers revolution and crimes originate from poverty. He asserted that crimes are
committed not merely for the sake of meeting the necessities of life but also for
acquiring superfluous things. He believed that crimes are mostly committed because
of the acquisitive tendency of man and his greed for acquiring surplus wealth. The
critics of this view argue that poverty undoubtedly is one of the contributing factors
for crime causation but it is not true that necessity always motivates a person to
commit crime. In fact, it is the materialistic tendency of man that generates
criminality within him. Thus, the desire to possess articles of luxury prompts him to
commit criminal acts if he cannot procure them by legitimate means. It has been
rightly observed by Elbert Hitbburd that, "criminal is a man who does by illegal
means what all the rest of us do legally. In fact, it is the lust for materialistic gain
rather than poverty which makes a man criminal". Commenting on this point Donald
Taft observed that crime has been a mere phenomenon of prosperity rather than
adversity.123
Another Greek philosopher, Plato also believed that human 'greed' was the
122 Goswami P. : 'Criminology' (1964), p. 163.

123 Donald Taft : 'Criminology' (4th Ed) p. 125.
potential cause of crime. In subsequent years, thinkers like Voltaire Rousseau, Beccaria
and Bentham also expressed similar views and agreed that economic structure is one
of the important causes of criminality. Poverty gives rise to hunger, misfortune,
disease and anger, which destroys the personality of an individual and makes him
irresponsible to do undesirable acts. Under the circumstances, he is forced to lend
himself into criminality. Therefore, according to these philosophers economic factor
has a close bearing on criminality and crime rate rises when poverty increases in
times of economic depression.
Relationship between economic structure and crimes :
During eighteenth century, intensive researches were conducted by
criminologists in Europe on the impact of economic conditions on criminality. But
unfortunately their findings differed radically and it was difficult to reach any
positive conclusion in this regard. The relationship between economic conditions and
crime is founded broadly on two main conflicting views, namely : ■
(1) The relationship between economy and crime is inverse; that is when
economic conditions are favourable, the incidence of crime is
comparatively low but in times of economic depression criminality
records an upward trend. This assumption finds support in all Marxist
doctrines and leftist policies. William Aldrian Bonger, the noted Dutch
social scientist strongly supported this contention.
(2) The relationship between economic structure and crime is direct or '
positive ; that is to say, criminality being an extension of normal
economic activity, increases or decreases with the rise or fall in
economy. Thus, according to this preposition, the crime rate shows an
increase in periods of prosperity and decreases during periods of
economic depression. This view has been most explicity developed by
Fillips Polett as a supplement to the original research of Enrico Ferri and
his famous work 'Law of Criminal Saturation'. Thorsten Sellin, however,
concluded that unemployment which is necessarily an off shoot of
depression, did not have an adverse effect on crime rate perhaps
because of governmental relief measures.
Russel emphatically stated that there is a direct inter-relation between the food
prices and the crime rate. As the prices shoot up, the crime rate records a
corresponding increase. He attributed increase in crime rate in England during 1815-
1842 mainly to the general distress and deterioration in commercial manufacturing
and agricultural yield. Another writer R.H. Walsh suggests that crimes multiply
during the period of depression and unfavourable economic conditions. Frederick
Engels also adopted similar approach and attributed increase in crime to the abject
condition of people due to class exploitation.
John Clay asserts that summary convictions are more common in periods of
prosperity than in periods of economic depression. He opines that during the period
of hard times, "the young and thoughtless who, when thrown into idleness, are liable
to lapse into dishonesty".
Miss Mary Carpenter, a well known social worker with women and children and
a long time Superintendent of the Red Lodge Reformatory for women at Bristol,
however, did not agree with the view that poverty and bad
economic conditions are responsible for increase in crime. She did not totally rule
out the influence of poverty on crime but refused to give it undue importance. This
view has been further supported by Charles Booth who stated that 56% of the crimes
are due to poverty and deteriorated economic conditions. Cyril Burt concurred with
Crime and Economic Conditions 133
the findings of Charles Booth and attributed criminal behaviour to adverse economic
conditions.
Most Italian criminologists also subscribe to the view that there is direct
relationship between criminality and poor economy. However, Albert C. Wanger in his
Philadelphian studies on "Crime and Economic Change" found no significant
correlation between economic depression and crime rate. But David Bogen in his
study in "juvenile Delinquency and Economic Trend" expressed a contrary view and
observed that delinquency decreased during depression and increased in periods of
prosperity.
Shah and Mckay, in their theory of social disorganisation have reiterated that
poverty, by itself is never a cause of crime, it only facilitates crime by deprivation of
adequate resources to deal with crime. They, however, agreed that "poverty areas"
tended to have high rates of mobility and racial heterogeneity which actuated crimes.
Therefore, in their view, poverty could be considered as only one of the factors
contributing to criminality but not the sole cause of crime.
While attributing poverty as a potential cause of criminality it must not be
forgotten that it is rather a subjective concept. What one man considers poverty,
another may view as a level of satisfactory comfort, if not of abundance.
Unemployment too is a subjective factor depending on the "willingness to work" and
to the degree of fastidiousness exercised by the worker as to the kind of work he will
do. Although poverty and unemployment are genuine matters of human experience,
but they are not capable of being subjected to accurate or uniform statistics.
Charles Goring also drew conclusions about the proximate relationship between
the crime committed by each of the criminals and his occupation after a careful study
of the occupations of about three thousand criminals. According to Gabriel Tarde
crimes are the result of man's craze for luxurious life. If a person who is used to a
luxurious way of life becomes poor for certain reason, he is likely to resort to crime
in order to satisfy his urge for easy life. Goring further argued that this egoistic
tendency of men can be satisfied only through 'money'. Therefore, if people cannot
meet their ends by legitimate means, they are likely to resort to unlawful acts which
we term as 'crime'.
Marxists Theory :
Marxists have propagated a view that crimes emerge solely out of capitalist
domination of society. Under such society the upper class can exploit the weak, put
them in physical danger, and transgress their human rights either with impunity or
with only lighter punishment. The Marxists believe that unfair division of labour and
capital would eventually lead to a conflict between rich and the poor and finally to
the overthrow of capitalist ideals. In result, communism would replace capitalism.
Richard Quinney, supporting the Marxist ideology alleged that capitalist State was
creating a criminalogenic society and there was need to replace it by socialist society
in which people's socio-economic rights would be more safe and secure and this
would surely lead to reduction in crime. According to him, criminal law in a
capitalist regime is an instrument of the State and ruling class to perpetuate the
capitalist social and economic order and it is meant for the protection of their
interests. Under these circumstances, the poorer sections of society remain oppressed
through the coercion of legal system and their discontentment generates crimes.1 It is
only with the collapse of capitalistic society that the problem of criminality can be
solved.
The Marxists, however, differ in their view regarding the effect of economic
conditions on criminality. In their opinion the two vary in inverse proportion. This
view has, however, been refuted on th^' ground that despite constant economic
progress throughout the world during the past 150 years the crimes are constantly
recording an upward trend. The real cause for rise in crime rate with economic
prosperity is perhaps the capacity of people to spend more in manipulating escape
from arrest and detection. That apart, quite a large number of crimes go undetected
and unreported for want of lack of initiative on the part of victim in getting the
offender prosecuted or due to the manipulative tactics of the criminal. White collar
crimes such as bribery, corruption, fraud, misappropriation, embezzlement,
counterfeiting, racketeering, etc. often go undetected on the strength of money and
wealth. The present socio-political conditions have created a peculiar situation
wherein crimes are bound to be rampant whether the economic conditions are
favourable or unfavourable.
Pointing out the interaction of economic conditions on delinquency, Hermann
Mannheim observed that excluding the traffic offences, the criminal law
administrators have to devote almost three-fourth of their time and attention in
dealing with economic crimes. This amply demonstrates that economic factors
contribute to delinquent behaviour directly or indirectly.2
Dr. Morrison, made a comprehensive study on the relationship between
economic conditions and crime in India. He observed that there was a peculiar
undercurrent of economic soundness in Indian caste system where every member of
the caste could find himself completely safe and secure from the economic
standpoint.
Bonger's Economic Theory of Criminality :
William A. Bonger's contribution to criminology in explaining the inter-relation
of crime and economic conditions deserves a particular mention.3 He derived his
conclusions after an intensive research study of economic conditions prevailing in
different socialistic countries in the first half of twentieth century. He stated that the
modern age is a period of capitalistic economy. Bonger concluded that capitalism was
one of the potential causes of criminality because the system created an atmosphere
for promoting selfish tendencies in men. Even the socialist countries such as
erstwhile Soviet Russia and China have experienced that the theories of economic
equalisation have failed in their practical application. This is evident from the fact
that only a few
1. Quinney Richard : The Social Reality of Crime (1970, Boston), p. 131.
2. Mannheim H. : Criminal Justice and Social Reconstruction, p. 82.
3. Bonger, W.A. : Criminality And Economic Conditions, translated by Henry P. Horton (Boston,
Little Brown & Co., 1916), p. 107.
decades ago former Russian Prime Minister Khurschev had to launch several
incentive programmes like permitting money-loans etc. for promoting social
interests. Going a step further, the former Soviet Union President Mr. Mikhail
Gorbachev introduced glasnost (economic freedom) and perestroika (restructuring
socialism) in 1987 for ensuring materially better and richer life and greater
democratisation of Russian society.
Commenting on the co-relationship between economic conditions and crime,
W.A. Bonger concluded as follows :
(1) He prepared a statistical data and demonstrated that almost 79 per cent of
the criminals belong to non-profitable class. Thus, he tried to establish a co-
relationship between poverty and delinquency. In his doctoral thesis entitled

Criminality and Economic Conditions, Dr. Bonger made a detailed study of the economic
literature of whole Europe and concluded that crimes relating to property such as
theft, stealing, robbery, dacoity, house-breaking etc. record an abnormal increase
during the periods of depression when the prices are high.
(2) Bonger further observed that the influence of economic conditions on
delinquency is essentially due to the capitalistic economy which breeds disparity and
leads to unequal distribution of wealth. The capitalist resort to hoarding and
monopolistic trends thus creating artificial scarcity and consequent rise in prices.
This in turn stops production which ultimately leads to unemployment of labour, as a
result of which offences such as alcoholism, vagrancy, beggary, assault, violence,
etc. record an upward trend.
(3) In an economic system based on capitalism, economic cycles of inflation
and deflation are frequent. Inflation gives rise to bankruptcy and insolvency with the
result the persons affected thereby are forced to lead an anti-social life and some of
them may even resort to criminality.
(4) Another peculiar feature of capitalistic economy is the competitive
tendency among entrepreneurs. Efficiency, low-production cost and better quality of
products are some of the admirable results of competitive economy. But when these
efforts fail to meet the competition, unlawful devices such as violation of laws
relating to trade marks, copyright, patents etc., are committed by the manufacturers.
This gives rise to increase in crime rate.
(5) There is yet another danger of the capitalistic economy which contributes
to enormous increase in crimes. The employment of children and women furnishes
soothing ground for criminality despite effective legislative restriction124 banning
their improper utilisation in industrial establishments. It has been rightly observed
that employment of children as labour is in itself a potential cause for crimes because
a child who earns his wages does not know how to spend it usefully. Consequently,
he is apt to spend his money on undesirable items such as smoking, gambling,
drinking, staking, womanising and so on, which ultimately drag him into the criminal
world.
The issue relating to right of children to be protected from economic
exploitation and their utilisation in hazardous work has engaged the attention of
world community during the preceding decade. The International Labour
Organisation has vehemently opposed child labour in view of the provisions of
Article 18 of the United Nations Convention on the Rights of the Child, 1989 which
prohibits employment of children for works which are harmful to their health or
physical, mental, spiritual moral or social development. The Government of India,
however, perceives child labour as a necessary evil, a concomitant of poverty which
cannot be done away with unless poverty itself is eradicated from society.125 The
Child Labour (Prohibition & Regulation) Act, 1986, .prohibits engagement of
children in certain hazardous employment. HoweVer, it does not completely ban
child labour but only seeks to 'protect' working children from exploitation.126 Section
14(1) and (2) of the Act provides for penalty for contravention of the provisions of
the Act. The implementation and enforcement of the provisions of the Act was far
124 Child Labour (Prohibition & Regulation) Act, 1986; See also Art. 24 of the
Constitution of India.
125 36 JILI (1994) p. 215.
126 Sec. 3 of Part II of the Act.
from satisfactory. Therefore, the Government came out with another law in 2006
prohibiting employment of children below the age of 14 years in hotels, shops,
bakeries or as domestic servants etc. It must, however, be noted that child labour is
rooted in the socio-economic conditions of the people and therefore it cannot be
wiped off unless poverty itself is completely eradicated.
The employment of women also has a demoralising effect on children. With
the outdoor occupational activities of mothers, the children are not properly looked
after. The lack of parental care and control over children in homes may detract them
from righteous path and they are likely to fall into bad company of delinquents out of
sheer frustration and want of proper attention towards them. That apart, greed for
money often induces women to agree to immoral acts. Particularly, in the context of
Indian society, the condition of working women is deplorable because of the lack of
adequate protection to her from social dangers while she is at work. Commenting on
this point Prof. Gillin rightly observed that while lack of employment seems to be
hazardous for adult males the employment of women and children is associated with
an increase in criminality.127
Criticism of Bonger Theory :
In spite of Bonder's generalisation regarding the effect of economic conditions
on crime as enunciated in his "Economic Theory of Crime", many critics have opposed
his views on different grounds. Prof. Cohen criticised Bonger's economic theory of
criminality on the following grounds :
(1) The research conducted by Charles Goring on three thousand criminals to
establish a relationship between their respective occupations and frequency of
committing crime has shown that poverty has no correlation with the frequency of
convictions. He further suggested that relative economic prosperity is no ground to
explain decline in crime rate. He opined that offences such as arson, wilful damage
to property and sex crimes were frequent among labour class, agriculturists, seamen
and soldiers while persons with commercial occupations commit less of these crimes
but more of the offences of acquisitive nature. Commenting on this point Cohen
observed that honesty is not the monopoly of only the rich persons, many people lead
an honest and upright life despite their extremely poor financial condition.
(2) Gabriel Tarde, the eminent French criminologist in his 'Penal Philosophy' also
subscribes to the view that a large number of crimes occur not due to commercial or
industrial progress but because of inequitable distribution of wealth and man's lust
for luxurious life. The acquisitive tendency in man often tempts him to commit
illegal acts.
(3) Dr. Bonger's assertion that poverty is an essential condition of crime
because a person is always prepared to do anything to get relief from his miserable
economic condition, seems untenable in the light of the fact that even the wealthiest
persons who are usually big industrialists, businessmen, financiers or monopolists
often resort to dishonest means such as falsification of accounts, black-marketing,
tax-evasion, hoarding, infringement of trade marks and copyright, etc., despite their
huge earnings.128 This obviously does not support Dr. Bonger's theory of criminality
127 Gillin J.L. : Criminology and Penology (3rd Ed.), p. 57.

128In the Indian context, the Bofors deal and the Fairfax Penal Findings of 1987 and FERA
inquiries against the Delhi Firm Jyotsna Moldings Pvt Ltd., for receiving 6.5 crores as
commission from ONGC for some contracts of pipes in 1988 raised considerable furore in the
Parliament. The Action Taken Report (ATR of the Joint Parliamentary Committee on Harshed
Mehta Bank Security Scam tabled by the Government in the Parliament on July 27, 1994
founded on poverty—delinquency relationship. One can understand a poor man

committing a theft to meet his bare necessities of life but why does an industrialist or
monopolist evade tax or maintain a false account ? This is a question which really
has no satisfactory answer. It may, therefore, be concluded that Bonger's theory of
economic factor as a sole cause of criminality is not wholly correct. There are many
other indirect factors which affect crimes differently.
The above observation can be further illustrated by the stock market scam at
the behest of India's biggest stock-broker Ketan Parikh in 2001 which involved
irregularities and manipulations in the stock market in all their ramifications and
transactions including insider trading relating to shares and other financial
institutions. The Government had to appoint a Joint Parliamentary Committee (JPC)
in April 2001 consisting of thirty members including 20 from Lok Sabha and 10
from Rajya Sabha129 to probe into the role of banks, brokers or promoters or Stock
Exchanges, financial institutions, corporate entities and regulatory authorities and fix
responsibility of persons or institutions or authority in these illegal transactions. This
amply demonstrates that it is not necessarily the need but greed and craze for
amassing wealth that motivates even the wealthiest persons to indulge into criminal
activities.
That apart, instances are not wanting when persons living in extreme poverty
exhibit high sense of regard for honesty. They even decline to accept any kind of
reward for their honest act since they consider it as a part of their duty to be honest
and truthful to others. In doing so, they are obviously guided by value considerations
and ethical standards of life rather than their economic condition. This clearly shows
that poverty alone does not always lull the virtues of benevolence, honesty and
justice in men. In fact, these are the qualities which have nothing to do with poverty
or abundance.
(4) Dr. Bonger's view that capitalistic trend of society is responsible for
criminality is also not wholly tenable. The socialistic policies launched with a view
to eliminating excessive profits and other evils of capitalistic economy have equally
failed to yield favourable results. The nationalisation of industries and State control
over production have hardly been successful so far prevention of crime is concerned.
Nationalisation essentially involves taking over control of private management by
the State while the other factors of production and distribution remain unchanged. In
the State controlled undertakings, the management and control is entrusted to some
public officials who are again the individuals. Therefore, how can it be said with
certainty that these public officials shall not be tempted to personal gains so long as
created uproarious furore in the House and the Ministry of Finance was alleged to have been
negligent in unearthing the scam. Again, the Gyan Prakash Committee Report on Sugar Scam
tabled in Parliament on 2nd February 1995 indicted State Trading Corporation along with the
Civil Supplies Minister for the sugar crisis. The multi-crore Bihar Fodder Scam (1996) involving
two former Chief Ministers Laloo Prasad Yadav and Dr. Jagannath Mishra, seven treasury
officers and five IAS officers is being probed into by CBI in a Jharkhand Court since May 7,
2001. The US-64 Scheme Scam of Unit Trust of India involving misuse of Public . unds is yet
another illustration on the point (July 2001).
The latest and possibly the biggest corporate fraud of Rs. 7,000 crores by India's fourth
top computer company Sattyam Computer Services in which profits and cash reserves had been
doctored for several years has duped millions of middle class people and job aspirants. The
company was inflating its profits and revenues to show better than actual performance for the
past 7 years as confessed by its Chairman Ramalinga Raju on January 7, 2(X)9.
129 Similar JPC had to be appointed by the Central Government in Feb. 2011 to probe
acquisitive tendency which is a part of human nature, persists in them. Moreover,

State control presupposes absence of profit motives. Consequently, there shall be no
incentive for production hence there would be scarcity and crisis which in turn will
give rise to crimes relating to property such as theft, extortion, stealing, hoarding and
black-marketing. It must, therefore, be accepted that undoubtedly there are certain
crimes which result out of capitalistic society but there are others which necessarily
generate in a socialistic pattern of society. For example, in socialist countries such as
Russia and China, the crimes arising out of capitalistic economy are rare but other
types of crimes notably, political or religious offences have abnormally increased.
The political instability and general discontentment among the people in these
countries often leads to offences such as treason, sedition, and revolt against the
Government in power.130 Therefore, socialisation as a solution to eliminate economic
factors of crime has proved a breeding ground for generating crimes of political
nature.131
From the foregoing analysis, it may be inferred that crimes are committed by
persons because of their subjective tendency therefore, economic changes through
State control and nationalisation cannot inject a change in this human tendency.
Socialistic policies can limit crimes only to an extent that the chances of profit
motives by private persons would be considerably eliminated and there will be no
occasion for violations of commercial laws for selfish motives. But it is fallacious to
think that crimes shall be completely wiped off by switching over to socialistic
pattern of society. This, in other words, means that it is not the poverty alone that
generates crime but it is the poverty in relation to other factors such as acquisitive
tendency in man and his craze for gaining more and more wealth that tends to make
him a criminal. Considered from this standpoint the crimes committed by the poor as
well as the rich can be satisfactorily explained.
It must, however, be reiterated that crime and poverty are endemic to any
society, whatever be its form—whether it is capitalistic or socialistic and whatever
may be the extent of its material development. Just as poverty cannot be wiped out
so also crimes cannot be wiped off though they can be reduced and controlled with
all out effort towards material development and prosperity of a nation.
The relevancy of poverty to crime is sufficiently highlighted though some of
the judicial decisions wherein the accused were compelled to commit gruesome
murder under pressure of extreme poverty. Thus, in In re Maragatham,' the accused
were husband and wife who were starving for about ten days without any food or
work for their subsistance. Therefore, they decided to put an end to their lives along
with their one and a half month old female infant. They tied themselves together
with a rope and jumped into a well. They were, however, rescued but unfortunately
the infant was drowned. They were convicted of attempt to murder of their infant
child and committing suicide under Section 307 read with Sections 34 and 309 of
the Indian Penal Code.
In yet another case of Shreerangyee v. State of Madras} the accused was a
hardworking but unfortunate woman who was deserted by her husband. She had five
children but was unable to support them for want of adequate earning. Her financial
130 People's agitation and revolt in Egypt overthrowing Hosne Mobarak's autocratic rule in Feb.
2011 and Libinn people's fight against the dictatorship of Colonial Gaddafi in March 2011 are
the latest examples of this phenomenon.
position further worsened due to her youngest child's severe illness and doctor's
demand for money for the treatment. Shreerangyee tried in vain to raise the sum.
Having exhausted all the legitimate means to earn a living, she, in exasperation,
killed all her five children by drowning them and finally jumped into the well. She
was, however, rescued and convicted, under Section 302 IPC for killing her children.
The Court in this case ruled out poverty as an excuse for the murder of innocent
children and attempt to suicide.
The cases referred to above, clearly indicate that social perspective of justice
had been completely lost sight of in the rigidity of legal process. Though in some of
the subsequent cases,132 the courts have evinced deeper concern for the poorer
sections of the society, but there is urgent need for restructuring of the existing
judicial mechanism so as to make it more humane and re-assuring that the poor and
weak are n.A forced to resort to criminal acts out of sheer disgust and desperation.
Judiciary's deeper concern for the poorer sections of the society who suffer
more within our legal system than others, was once again reflected in the case of
Bavadas Boxvri v. State of Assam,133 In this case, the appellant, who was an
132 Hussainara v. State of Bihar, AIR 1979 SC 1369 ; Bandhua Mukti Morelia v. Union of
India, AIR 1984 SC 802.
133 (1982) Cr. L.J. 213 (Gau.).
indigent and disabled man belonging to a backward class was convicted of murder
under Section 302 of I.P.C. and was sentenced to imprisonment for life. In the
exercise of his right of private defence, he used a pen-knife against strong adversary
who was assaulting him with a bamboo stick. It was for this reason that the appellant
was forced to fight for his life and the thrust given in these circumstances had caused
the death of the assailant.
The High Court of Gauhati accepted the right of private defence of the
appellant and observed that the entire case had been conducted sluggishly. "Poor
quality of justice dispensed to the poor is a common feature of the judicial
administration. Justice Lahiri, inter alia, observed, "a public prosecutor should have
the strength not to disown the poor....he must exercise power of withdrawal under
Section 321 of Cr.P.C. if he finds that the charges are not genuine. The primary duty
and conduct of judiciary is to do justice within the four comers of law..."
In Joyannathan v. State,1 the involvement of the appellant (a small farmer of
Perambur) entangled in a village quarrel landed him in a police case. Police took
over a year to frame a charge-sheet during which the appellant's life became a hell as
he had to part with his two acres of land and milk business in order to meet frequent
visits to Magistrate's Court and also to support his wife and three helpless children. It
was only after the revision petition was filed by the brother of the appellant in High
Court of Madras, that his revision was allowed. Moved by the plight of the poor
appellant, the High Court ordered to quash all the criminal cases where the police
had kept the FIR's unduly pending over six months.
Limitations of economic explanation of crime
Despite divergent views about relationship between economic conditions and
criminality, no serious attempt has ever been made to harmonise these differences
and work out an acceptable solution to the problem of crime. Therefore, it may be
stated that the correlation between economic conditions and criminality is so
uncertain that no definite conclusion can be drawn. As such, there is a tendency to
accept the position that economic conditions represent only a large number of
environmental circumstances and it is nothing but a part of multiple factor approach
to crime-causation. Criminality cannot be attributed to any one particular area of
influence, namely, economic, biological, psychological, social etc., but each of them
constitutes a part of a total whole.
It may further be pointed out that adverse economic conditions do influence
certain types of crimes such as the sex crimes, pathological crimes, political crimes
but the entire criminality in the society cannot be attributed solely to economic
phenomenon. Economic values certainly have a dominant role to play in human
society but they depend on a variety of socio-cultural factors and, therefore, have
only a relative significance. Legal control on economic activities would also exert its
influence on crime—economy relationship to a considerable extent. It is thus evident
that neither poverty nor wealth has a major determining influence on crime and
delinquency in modem society.
Bonger's theory of economic explanation of crime fails to answer as to why
people with sufficient means and resources such as millionaires, business tycoons,
high officials, ministers and political leaders indulge in criminal activities such as
bribery and corruption when they already possess much more than what they actually
need. In fact, it is the lust for money and craze for amassing more and more wealth
1. (1983) Cr. L.J. 1748 (T.N.).

which tempts them to misuse their position and power. It will not be an exaggeration
to say that corruption in India has become a nation-wide problem and it is being
generally resonted to in a routine manner to get the work done easily and quickly. The
corruption in government, semi-government and public or even private enterprises at
ministerial level is no secret. It is being openly practised despite the fact that both the
giver and the taker know that it is an illegal act punishable under the law. The
stringent penal provisions provided in the Prevention of Corruption Act, 1988 have
failed to prevent, if not eradicate, this menace probably because of its peculiar nature
that it is mutually beneficial to the parties involved in it. It is therefore, evident that
crimes of this kind have hardly anything to do with the economic or financial
conditions. It basically emanates from greed and temptation for money which is
inherent in human nature.
The effect of modernisation and excessive materialism has changed the very
concept of crime. Therefore, there is greater influx of socio-economic crimes in the
present time. They include tax evasion, hoarding, black-marketing, violation of
FERA,134 MRTP Act (now the Competition Act, 2002), financial scams,135 adulteration,
etc. The cyber crimes have added new dimensions to white collar criminality in the
computer age of 21st Century. The reformative measures have failed to tackle these
non-traditional offences effectively and social legislations have not been able to
prevent these crimes due to their ineffective enforcement. It is, therefore, necessary
that with the changing patterns of criminal behaviour, more stringent laws should be
enacted to bring socio-economic crimes under control. Despite COFEPOSA136 and
FERA regulations in force for several years in India, there has not been any
significant change in the crime index relating to smuggling and foreign exchange
violations which are adversely affecting the Indian economy. The criminal law
enforcement agencies should, therefore, initiate drastic measures to curb this menace.
More recently, the Central Bureau of Investigation (CBI) has busted a money
laundering racket involving several public sector banks spread over Calcutta, Port
Blair and Chennai. It was found that public funds were being siphoned off and
slashed away as fixed deposits which were created in fictitious names including
Indian Cricket Captain Saurav Ganguli, noted model Milind Soman, Rhea Pillai and
film-maker David Azad. So far 7.75 crore rupees have been traced laundered between
February and July, 1997. This would well be the tip of the iceberg as per the CBI
report handed down on May 7, 2001.
More recently, the Enforcement Directorate raided business Tycoon Hasan Ali's
Pune home and detected Income tax claims around 89000 crore rupees alleged to have
been slashed away over eight billion dollars in Swiss Bank. He was served a demand
notice of Rs. 71,845 crore rupees and 24% penalty thereon since the year 2000. Hasan
Ali is also charged under the prevention of Money Laundering Act (PMLA).137
134 Some of the personalities against whom complaints of Income Tax and/or FERA violations were
received during (1998-2(X)1) are noted film superstars Amitabh Bacchan, Shahrukh Khan,
Cricketers Sunil Gavaskar, Mohd. Azaharuddin, Kapil Dev, Ajay Jadeja. Outstanding Income
Tax demand on Amitabh Bacchan and his wife Jaya Bacchan together was 15.10 crore rupees.
(The then Minister of State for Finance Shri G.N. Ramcnandran's written reply in Lok Sabha on
April 29, 2001.)
135 For example, the following :—
136 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973, which is
now called the Foreign Exchange Management Act, 2002.
137Hindustan Times dated 8th March 2011.
Chapter VIII
Organised Crimes
C riminality is a global phenomenon. With the advancement of time and

development of knowledge and technology the complexities of life have
multiplied with the result many anti-social elements think it profitable to embrace
criminality as a profession to earn their livelihood. This has provided opportunities to
criminals to organise themselves into criminal gangs. In the modern age of science
and technology, new techniques of crime are used by the gangesters to perpetrate
crimes.
Definition
Generally speaking, organised crime is an act which is committed by two or
more criminals as a joint venture in a systemtically organised manner. It is an illegal
act which the members of an unlawful association commit with mutual co-operation
and adventure.
Dr. Walter Reckless defines organised crime as an unlawful misadventure which
is carried on by a boss, his leiutenants and operators who form a hierarchical structure
for a specific period.138
According to Sellin, "organised crime resembles those economic adventures or
enterprises which are organised to carry on illegal activities". He further observed
that organised crime is "synonymous with economic enterprises organised for the
purpose of conducting illegal activities and which, when they operate legitimate
ventures, do so by illegal means". The purpose of such activities is to amass huge
profits through illegal means. The largest share of the profits, however, goes to the
manager and kingpin of the entire iniquitous enterprise, e.g., prostitution, smuggling,
bootlegging, gambling, racketeering etc.
Organised crimes have been in existence for centuries in almost every society.
Criminals organise themselves into formal or informal groups to carry on their illegal
activities violating the law ruthlessly. Like any other business organisation, the
professional criminals organise themselves into criminal gangs to carry on their anti-
social activities with skill and efficiency for profit making.
Commenting on organised crimes Donald Taft observed that, "the organisation
of criminals introduced in the field of crime those factors of leadership, group-
discipline, obedience, loyalty, division of labour, fellowmenship, sacrifice, co-
operation and group planning which spell efficiency in the normal economic, political
and social life."139 Most criminals organise themselves into criminal groups with a
view to specialising in their trait and accept a particular crime as their occupation.
The gang of criminals practising one particular criminal activity does not generally
interfere with the criminal
138 Walter Reckless : The Crime Problem, p. 319.

organisations practising other crimes. However, on account of inter-connection

between the criminal activities carried on by two or more organised groups of
criminals, one group may at times be seen to carry on its activities in close liaison
with that of andther. Thus, organised gambling, liquor trade and prostitution may go
on hand in hand" because of the peculiar nature of these crimes. The professional
criminals who organise themselves into criminal gangs are often the habitual and
hardened offenders who have embraced criminality as a regular profession in their
life.
At times organisation of criminals may be formed informally because of
similarity or reciprocity of interests and attitudes. A group of persons which may have
been formed for some legitimate purpose might subsequently turn into organised
criminal association to carry on some illegitimate purposes.140
Edwin Sutherland rightly observes that there is at least one thing common among
these criminal organisations. That is, they are bound together by a common hostility
towards law and, therefore, the members assist and protect each other from law
enforcing authorities. Since protection against arrest and detection is a necessary part
of organised crimes, gangsters too often adopt the technique of "fixing crimes" which
is far more important than executing them. For this purpose they try to win over
police officials by underhand tactics or use of threat, undue influence or coercion
against the victim in order to refrain him from making a complaint to the police. That
apart, organised criminals have also to seek co-operation and support from some
parallel legitimate business organisations for disposing of their illegally earned
money, property or commodity. Thus, organised crimes involve a number of
accessory activities for the smooth conduct of their underworld profession.
Different types of criminal organisations that may operate in the criminal world
can be categorised into the following heads :
(1) organised predatory crime ;
(2) crime syndicate ;
(3) criminal racket ;
(4) political graft.
(1) Organised predatory crime
Crimes which do not involve any kind of service to the affected person or
persons are called predatory crimes. It is therefore essentially a one-way transaction
inasmuch as the gangsters by committing such crime enjoy the entire benefit
themselves without any apparent or actual service to the victim. There is no
repentence among the gangsters although they are conscious of the opposition of law-
abiding society. Juvenile delinquents and occasional offenders generally turn into
professional gangsters in course of time. Commenting on this tendency, John Latuiesco
observed that "in some delinquency areas the choice of professional career in crime is
as natural to the criminal as the choice of a legitimate career may be elsewhere."1 The
noted criminologist, Sutherland opines that members of the professional criminal
gangs require greater skill and planning than the occasional criminals. Their
professionalisation involves not only the execution of crime but prior location of
"spots" mid preparation for escape from punishment in case of detection.2
140 Sutherland : Principles of Criminology (6th Ed.) p. 227. Large Scale corruption in contacts for
construction of overlays, sports grounds, technological equipments, accommodation
arrangements, sponsorships, event-management etc. during the Commonwealth Games in India
(2010) is a glaring illustration to show fyiow organised crimes emerge out of an otherwise
legitimate activity.
Organised Crimes 113
Some of the predatory crimes which commonly occur are theft, dacoity,
extortion, kidnapping, pick-pocketing etc. The peculiar characteristic of a predatory
crime is that the victim of this crime is a total loser without any material gain or
advantage or service from the offender. Thus, in a predatory crime the exploitation of
the victim is so conspicuous that entire society reacts to it. A few criminals join
together to organise into a 'gang' and carry on criminal activities as a joint venture.
The gangs of dacoits,3 kidnappers and smugglers and pickpockets operate almost
everywhere carrying out their organised criminal activities as professionalised
ventures.
Of late, the emergence of terrorism as an organised form of predatory crime has
endangered peace and security. It is to be found in different forms such as political
terrorism, religious terrorism narco-terrorism etc. It basically involves violence and
killing thus posing a serious law and order problem for the State administration.4 The
dissemination of new technology and weapons has facilitated the growth of terrorism.
Though the roots of terrorism or extrimism lie in ethnic or religious fundamentalism,
it has proved a boon for professional criminals to carry on their criminal activities in
a planned manner for dubious goals.
The Government of India introduced an Act called the Unlawful Activities
(Prevention) Act,5 1967 to ban any association or group of persons which carries on
unlawful activities threatening national integrity and security of India. Exercising its
power under the Act, the Government of India, by its notification, S.O. 190(E) dated
18th February 1994 has declared JKLF (Jammu & Kashmir Liberation Front) as an
unlawful association because of violent secessionist militant activities which has
resulted into the killing of a large number of civilians and security force personnel,
sabotage, abduction and destruction of property. Their main object being to create
chaos and insecurity among the people and to erase the authority of Government of
India or destablise it.6
1. Taft and England : Criminology (4th Ed.); p. 185.
2. Sutherland and Cressy : Principles of Criminology (6th Ed.)., p. 233.
3. When five or more persons conjointly commit or attempt to commit a robbery, they are said to
have committed 'dacoity', Sec. 392, I.PC.
4. The massacre of 61 innocent dalits in Laxmanpur Bathe village of Jahanabad district in Bihar in
the early hours of 2nd December, 1997 by the Ranvir Sena, a well organised army of the wealthy
landlords and upper castes in order to re-assert its supremacy over Naxalites of Bihar
sufficiently illustrates as to how extrimists are operating as an organised armed army in that
State posing a threat to the life of the villagers living in Naxalite affected areas.
5. The Unlawful Activities (Prevention) Act, 1967 as amended in 1969 (Act No. 24 of 1969). For full
Text Sec Appendix I.
6. The Naxalites operating in certain states specially, Bihar, Jharkhand and Chhatisgarh, are yet
another example. During the period 2008-10 they have killed 2600 persons including 833
Security personnal and there have been as many as 909 incidents of damage caused by them to
the national and public property. The Maoists are alsd involved in similar criminal acts (As per
Information given by Minister of Home Affairs to Lok Sabha on 8th March 2011).
(2) Crime Syndicate
The term 'crime syndicate' refers to a gang of criminals engaged in the business
of providing some forbidden or illegal service to the customers who are desirous of
having it and are willing to pay handsomely for that service. Crime syndicates operate
because of the availability of market for certain illegal prohibited services. Thus,
gambling, bootlegging commercialised prostitution, supply of narcotic drugs and
other intoxicants, etc., are mostly carried on by the syndicates of criminals.
Obviously, these crime syndicates exist because of the illegitimate public demands
which cannot otherwise be legally met due to legal prohibitions. The possibility of
enormous profits involved in the fulfilment of these illegal demands is perhaps the
main consideration involved in the organisation of criminal syndicates. Criminal

syndicates make huge profits and it is primarily due to these organised criminals that
many profiteers secure monopolies in illegal operation of service crimes. These
monopolies are procured by persuation, intimidation, violence and even murder.
More often than not, these gangsters are extended protection and shelter by law-
abiding persons in carrying on their criminal activities for soliciting an illegal service.
Crime syndicates are master-minded by highly skilled and professionalised
gang-leaders. Commenting on the working of crime syndicates David Dressier
observed that despite known arrest records and well documented criminal statistics,
the leading gangsters remain for the most part of their career immune from
prosecution and punishment although underlinks of their gangs may at times be
prosecuted and punished. The quasi-immunity of top-level mobsters can be ascribed
to what is popularly known as 'fix'. The 'fix' is not always direct payment of money to
law enforcement officials but may also come about through the acquisition of
political power by contributions to political organisations or by creating economic
ties with apparently respectable businessmen and lawyers and by buying public
goodwill through charities, contributions and press relations.1
(3) Criminal Racket
Racketeering in criminal world is the practice of systematic extortion under
some kind of threat usually of personal injury or property.2 Donald Taft defines
racketeering as "an organised crime in which the criminal elements perform a service
to such members of society who are normally engaged in some legitimate business
activity". Racketeering differs from an organised predatory crime inasmuch as some
kind of service is essentially involved in it and therefore, it is not completely
exploitative. It also differs from a criminal syndicate as the service involved in a
racket is rendered to those who are normally engaged in legitimate activities while in
case of syndicate the service is altogether illegal and prohibited. It is thus evident that
opportunities for racketeering increase when business is not within the legal limits or
is marginally within limits and legitimate recourse to police help for its protection is
not possible. Persons who are exploited by the racketeers are sometimes convinced of
the value of services taken by them even at the cost of their own exploitation. Thus, it
can be safely adduced that organised recketeering is
1. David Dressier : Readings In Criminology and Penology (Second Print, 1956) pp.
48-49.
2. Void, G.B. : Theoretical Criminology, (1958) p. 228.
nothing but an illegal exploitation for some legitimate or illegitimate demand.
In the present competitive economy the individual business organisers as well
as the labour unions frequently depend on criminal rackets for improving their
bargaining capacity. At times, this involves use of force and compulsion which
ultimately leads to threats of violence and coercion. Some of the major rackets which
commonly operate may be mentioned here :
Business Labour Racket.—Within the area of legitimate enterprise the law
courts, police and the Government are acting as supervisors to restrain and guide the
competitive processes. The employers always try to make huge profits whereas the
labour wants high wages. Thus, the interests of these two classes often lead to a
conflict in pursuit of their desired ends. The employers resort to illegitimate means
by utilising unorganised workers and racketeers to jeopardise the bargaining capacity
of the labour thus grabbing huge profits for themselves. For example, there are cases
when organisers of even most reputed industrial establishments muster many non-
existent and fictitious names on their payrolls as labourers and thus draw huge sums
in their name for months through an organised racket. Such rackets frequently
operate in the Engineering Department of the Railways and Public Works

Department of the States which employ a large number of workers as work-charge
labour.
In yet another type of labour-racket, salary by the racketeers is drawn in the
name of certain fictitious persons who do not actually come for work but their
attendance at work is marked by the interested parties who are participating in the
racket. Thus, racketeers make the deal profitable to themselves in liaison with the
employers and in return offer protection to the latter against the workers's strike and
possible labour unrest. They are vigilant to make sure that they always remain
indispensable to the employer and for this purpose they sometimes manipulate their
election to the unions of the labour organisation by whatever means.
Labour rackets are also frequently found to operate in dockyards where speedy
commercial transactions are involved. The cargoes arriving at the dockyard have to
be unloaded in shortest possible time because delay in unloading would mean loss of
profit to importers and shipping companies. Therefore, in order to eliminate any
possibility of delay in transhipment of goods on account of workers' strikes, labour-
unrest or pressure tactics of the workers, the employers often take the top leaders of
the labour union into confidence and employ a large number of professional
criminals and habitual offenders to organise themselves into labour racket and
retaliate threats from the dockyard workers. These racketeers keep the labour
situation well under control and in return extract huge sums of money from the
employers. One such Racket operated in America in the name of the New York
Water Front Racket. Similar rackets are operative in various dockyards in India. In
essence, it can be stated that the problem of racketeering as an organised crime is
effected by the circumstances and guided by the principle of demand and supply. The
ultimate object is to keep up with the time taking the advantage of favourable
situations in business world.
Gambling Racket.—There is yet another type of racket operating as 'gambling
racket' in shape of organised crime. Tendency of the people to take chance and try
their luck coupled with the hope of gaining something out of nothing is perhaps the
main consideration which underlies the gambling rackets.141 Horse races, animal-
combats and ball games are some of the common forms of gambling in which
organised racketeering often flourishes. Unfortunately, anti-gambling laws have
totally failed to suppress this menace because of the inherent tendency of men to
speculate and try their fortune.142 Moreover, in recent years the State lotteries run by
State Governments sufficiently suggest that even the government accepts gambling
as a potential source for raising revenue and improving the financial resources.
Certain States have gone a step further and withdrawn all restrictions on speculation
(scitta) which can now be freely practised by the residents within those States.
Probably, it is felt that these vices which are deep rooted in the society cannot be
stopped merely by legislative measures unless public opinion mobilises in favour of
uprooting them from the society.
In United States, cyber casinos and internet gambling permitting non-sporting
bets have been operating as an off-shore internet wagering racket for quite some time.
The United States Government has set up the regulatory framework to allow casinos
to extend their reach into the internet only after the Gaming Control Board's
clearance. Illegal bettors are making huge profits through this cyber space gambling
141Barnes and Teeters : 'New Horizon's of Criminology' (3rd Ed.), p. 35.

142Illegal lottery in the name of investment worth Rs. 3.5 crores was unearthed by the M.P. Police in
Jabalpur on 26th December, 2006.
racket operating on internet.

Other Criminal Rackets :
Rackets are found in abundance in the commercial world and business
organisations. In many cases racketeering is carried on as a regular occupation. A
racket of the fake recruiting personnel was unearthed by the Superintendent of Police,
Meerut on March 5, 1975. It was led by one Ravilal Sharma143 who allegedly recruited
youngmen to the army with bogus certificates of education and age and fictitious
addresses. In return he charged huge sums from his victims. Several employees of the
Meerut Recruiting Office were also involved in this racket.
The Central Bureau of Investigation busted a transport department racket in
Delhi on August 22, 1995 wherein six Motor Vehicle Inspectors along with four touts
were caught redhanded dividing the day's bribe amount of Rs. 1.27 lakh at the Burari
office in North Delhi. In subsequent search of the Inspector's houses, the Anti-
corruption Branch Delhi seized assets worth 1.5 crore. The bribe was collected for
issuing licences and certificates regarding road worthiness of vehicles etc. The case
sufficiently hightlights the magnitude of criminality which persists in certain public
offices in the form of organised rackets.
The racket carrying on illegal sale of alcohol and narcotics, abortion, illegal
service to the underworld criminals, fraudulent reports and testimony in accident
cases and similar such activities work in close liaison with persons engaged in
medical profession with the motive of earning huge profits. Likewise, rackets selling
fake degrees and mark-sheets to needy persons are operating in several parts of India.
Obviously, they carry on their illegal activities in liaison with some of the University
employees who assist them in procuring necessary information and material for the
purpose. In 1990 two such rackets were unearthed in Madhya Pradesh, one at Rajpur
and the other at Ujjain. Several forged mark-sheets, seals, and other incriminating
material was recovered from them. Some of the University employees were allegedly
involved in these rackets who are facing legal action.
Criminal rackets involved in flesh trade and sale of women and girls for the
purpose of prostitution are common news-items in newspapers to be read almost
everyday. Despite stringent legal measures such as the Immoral Traffic (Prevention)
Act,144 1956 and the provisions of the Indian Penal Code,145 the repression of
prostitution has not been possible. The problem being more of a social and economic
nature, needs to be tackled through better social and economic planning rather than
social legislation alone. The recent developments in information technology and
Internet services have opened new opportunities for these rackets to operate
nationwide.
The Supreme Court, in its decision in Gaurav Jain v. Union of India & others146
issued direction to the Social Welfare Department of the Government of India and
the States to initiate adequate measures for prevention of induction of women in
various forms of prostitution and rescue them from the vile flesh-trade and to provide
them dignity of person, means of livelihood and socio-economic empowerment.
(4) Political Graft
143More than 250 bogus High School Examination certificates, Intermediate Examination
certificates and seals of several Principals and Colleges and other documents were recovered
from the culprit.
144 The Act was earlier called 'The Suppression of Immoral Traffic in Women & Girls
Act, 1956. For full text Sec Appendix 111.
145 Sections 361, 362, 372, 373 and 498, IPC.
146 AIR 1997 SC 3021.
There is a general belief that persons of high status carrying on some legitimate
business and professional criminals are inter-connected through political grafts. In
order to assume political power and party's victory at polls, the politicians generally
seek the support of notorious offenders and utilise them for illegal practices to
accomplish their political ends. This utilisation of notorious criminals by the
politicians for political gains is commonly known as 'political graft'. These grafts
resort to all kinds of legitimate or illegitimate methods to bring success to their
employer at polls. At times, these hired professional offenders do not even hesitate to
resort to violence and threats to make voters cast their votes in favour of the
candidate for whom they are working. Instances are not wanting when some
professional voters have been found to vote at more than one place for different
electorates. Thus, 'vote buying' is a common example of political graft.147
The issue of links between crime syndicates and politicans as also the
bureaucrats, has been sufficiently highlighted in what purports to be the N.N. Vohra
Committee Report148 which was tabled before the House of Parliament on 3rd August,
1995. It has been alleged in the report that criminal gangs enjoy patronage of 'local
level politicians' and the criminal deeds of political high ups are conveniently hushed
up or ignored/This has resulted into criminalisation of Indian politics and making
criminal actions respectable. The name of Iqbal 'Mirchi' one of the prime accused in
the Bombay Blast case of January, 1993 also finds place in the Vora Report as an
example of the growth of a small functionary into a major syndicate.
The Report refers to the proposals put forth by the Central Bureau of
Investigation (CBI) for enhancement in the power of preventive detention, to award
punishment, tap telephones, carry out surveillance, establish monitoring mechanism
at State and Central levels, and simplification of trial procedures including review
and amendments of existing laws, etc., so that the guilty be punished irrespective of
their class or cadre. Acting on this report, the Government of India appointed a high
level committee under the Chairmanship of the Home Secretary Shri Padmanabhaiya
for this purpose. Despite these measures, the nexus between politicians, government
officials and criminals continues unabated as is evident from the Tahelka dot com
episode149 and the Bihar Panchayat Poll violence.150
Of late, there has been a general tendency on the part of political parties in
power to set up commissions of inquiry, specially if big-wigs are involved, to save
them rather than to punish the guilty. The inquiry drags on for years and finally the
guilty escapes scot-free due to their political links. Thus, the Commission to probe
into the Tahelka Tape story on corruption in defence deals was appointed in January,
2003 but withdrawn on October 31st, 2004 and its proceedings were quashed.
Similarly the muiti-crore fake stamp paper scam master minded by Abul Karim Telgi
allegedly involving' 3 or 4 top politicians is being probed since 2003 but with no
substantial results.
147 Void. G.B. : Theoretical Criminology (1958), p. 231.

148 The Government of India appointed a five-men Committee under the chairmanship of Shri N.N.
Vohra on 9-7-1993 to probe into the nexus between politicians, Goverment high officials and
industrialists with the mafia gangs. The Committee submitted its Report in 1995.
149 Editor in Chief of Tahelka Dot Com, Tarun Tejpal appeared before the Army Court of Inquiry
probing into conduct of Army Officiers as highlighted by video tapes and deposed under oath on
20th March 2001. He handed over the entire transcript to the court of inquiry.
150According to a report at least 100 people have been killed in the six-phase Panchayat Poll
violence in Bihar in April 2001 due to nexus between politicians and criminals. This number was
500 in 1978 elections.
Main characteristics of organised criminals :

Some of the characteristic features of organised criminals who are associated
with various types of organised crimes deserve particular mention. The sense of unity
and solidarity among these criminals is perhaps the root cause of their success in
their criminal ventures. It is primarily for this reason that detection of organised
crimes has always been a difficult problem for the police and other law enforcement
agencies. Organised criminals have their own leaders and the members of the gang
work in perfect harmony and understanding. They have their own codes of ethics.
There are instances when participants of such organisations have preferred death
rather than divulging the secret of their associates. That apart, a perfect division of
labour is to be found in the gangs of organised criminals and the members are
assigned specific duties in furtherance of a particular organised activity. Thus, the
criminals associated with liquor syndicate have a variety of activities to perform in
their illegal business. Some of them are entrusted the job of procuring liquor while
others are to manipulate its transmission to the customers. A few of the criminals in
the syndicate are to act as watch-dogs and keep their fellow-criminals alert from the
dangers of police or other detective agencies so as to escape arrest and punishment.
Besides this, one or two members from the group assume the role of leaders to
supervise the smooth working of the syndicate and keep these participants well under
control. The task of distribution of booty or earnings to different members of the
organisation is generally performed by the ring leader of the gang.
Besides perfect unity and division of labour, organised criminal gangs have to
act in close liaison with other organised criminal groups. They cannot afford to be
hostile or indifferent to other gangs which are carrying on some other parallel
criminal activity. For example, those indulging in gambling dens have to remain in
touch with the illicit liquor suppliers and perhaps also with the gang dealing with
prostitution. At times, two or more organised criminal gangs carry on their respective
criminal activities side by side in perfect harmony and mutual understanding without
interfering with the business activities of the other. The obvious reason for this
mutual trust and co-operation among the criminal gangs carrying on different
activites is their consciousness that slightest confrontation with other gang might lead
to their detection by the police which would mean destruction, ruin and disbanding of
the gang.
With the developing economy, industrial growth and modernisation, the scope
of activities for different types of criminal organisations has considerably widened.
Today, criminality in an organised form is known to exist on national as well as
international plane. Smuggling, illicit sale of wine and women, pick-pocketing,
dacoity and gambling are operating throughout India despite intensive police vigil.
There are inter-State gangs carrying on these organised crimes as a regular business.
The case of notorious American Swindler Walcott who was convicted in India is a
glaring illustration indicating the operation of organised crimes on international
level.151 The gangs of organised criminals operating all over the globe and carrying out
their criminal activities undeterred by repressive measures of the law enforcement
agencies amply reflect upon their organisational skill, spirit of mutual trust and
cooperation and loyalty to their fellowmen. At the same time, it casts aspersions on
the efficacy of the police and detective agencies to tackle these organised offenders
effectively. It further makes it clear that even the professional criminals do have
regard for the virtues of devotion, honesty, loyalty and fellowmenship and if these
151 Other notorious smugglers are Haji Mastan and Sukhar Narain Dakhia who were
engaged in smuggling activities in an organised manner.
noble qualities in them are properly channelised, there is no reason why they cannot
be turned into law abiding members of the society.
Lately, it is being increasingly felt that the incidence of organised crime must be
repressed by the government machinery through certain concrete legislative
measures. Particularly, the service-crimes which are rampant in the form of
syndicates and rackets can be repressed by legalising these services under heavy
taxation. Gambling rackets and illicit liquor rackets can effectively be controlled in
this manner. Legalising prostitution in a restricted form through heavy licensing may
also control commercialised prostitution to a considerable extent. It could also help
eliminate the middlemen who are at the root of most of the evils in the prostitution
business. Besides, it would greatly reduce racketeering and forcing of minors into this
clandestine trade.152 These are few measures which may help in liquidation of
organised criminals. The role of media and need for public participation in liquidating
organised criminal gangs need hardly be emphasised. Law enforcement agencies find
it difficult to bring the gangsters to books without active co-operation of the public
and other social service agencies. Therefore, a regular exchange in intelligence
between different agencies including the public representatives is of vital importance
to suppress organised crimes. The media, namely, the press, platform and propaganda
can play a significant role in mobilising public' opinion against these crimes which
are a positive danger to the community as also the nation. It hardly needs to be stated
that active participation of public in helping the police in apprehending gangsters and
unearthing criminal rackets and syndicates is utmost necessary for launching a
crusade against organised crime.
It may further be suggested that a high level secret cell be established in the
Home Ministry of the Government of India to break the links between politicians,
bureaucrats and the criminal gangs and rackets as they pose a direct threat to the
internal as well as external security of the country. While discussing this issue, the
Director of the Central Bureau of Investigation has admitted before the Vohra
Committee that criminal mafia gangs are receiving patronage of almost all the
political parties, particularly in the State of Bihar,153 Uttar Pradesh and Haryana. Some
political leaders are found even to lead these armed gangs and criminal forces and
manipulate their election to State Legislature or the Parliament so that they can exert
their political influence in accomplishing their anti-social designs. These criminal
rackets have become so powerful that they have succeeded in corrupting every wing
of the governmental mechanism. These rackets are synonymous with economic
enterprises and are organised for the purpose of conducting illegal activities operating
as legitimate ventures by illegal means. It is, therefore, necessary that stringent legal
measures be launched for combating this intricate national problem. It needs no
mention that the ultimate goal of organised crimes being amassing huge profits
through illegal means, it results into ruthless exploitation of the poor and at the same
time has an adverse effect on the national economy.
Collective Violence
Collective violence may also be considered as a form of organised crime.
Violent conflicts between nations and groups quite often lead to disastrous
consequences in terms of loss of men, material and economic wealth. Collective
violence in its multiple forms, receives a high degree of public attention and media
152 Smt. Suman Krishan Kant, President of the Mahila Dakshita Samiti, is, however, opposed to
legalisation of prostitution as it would be the worse form of human commodification and mean
legitimising human depravity and degradation.
153Particularly, in Bihar the Nexalite mafias are allegedly running a parallel government.
coverage. Violent conflicts between state and groups, terrorism naxalite attacks, gang
warfare and mass hooliganism are common occurrences all parts of the world.
Definition of Collective Violence

The term collective violence may be defined as violence by people who
identify themselves as members of a group-whether such group is transitory or has a
more permanent identity, against another group or set of individuals, for achieving a
political, economic or social objective.
Various forms of collective violence may include—
1. Wars, terrorism and other violent political conflicts that occur within or
states.154
2. State perpetrated violence such as genocide,155 depression,
disappearances, torture and other abuses of human rights.
3. Organised violent crimes such as banditry, gang warfare. Genocide is a
heinous form of collective violence as the perpetrators intentionally
target a pdpulation or group with the aim of destroying it. It involves
mass massacre with intent to destroy, whole or part of natural, ethical,
rural or religious group as such.
Preventive Measures to reduce the potential for collective violence
The incidences of collective violence may be prevented by adopting certain
measures which may help in:—
(1) reducing poverty and ensuring development;
(2) making decision-making more transparent and accountable;
(3) reducing inequality between different social groups;
(4) reducing access to chemical, nuclear, biological and other weapons; and
(5) promoting human rights and respecting the international humanitarian
laws promulgated by U.N.
Theories of Collective Violence
There are five basic theories that provide the framework for understanding the
incidents of collective violence. They are as follows:
1. Theory of irrationality.—According to this theory, people indulging in
collective violence understand and foresee the consequences of their actions when
they act in large groups and crowds. Freud has supported this theory. The agitation
by the Gujar community in Rajasthan in 2008 against the Government and insurgency
prevailing in North-East parts of India provide an illustration of this kind of collective
violence. Terrorism and naxalite movement is also covered under this theory.
2. Theory of Frustration-Aggression.—It has generally been observed that
uprisings and collective violence often errupts due to deprivation of people of their
socio-economic and political rights. People in general are unhappy about the
government in power and they resort to aggression out of frustration and deprivation.
The latest illustration is uprising by Egyptian people against the Hosni Mubark's
autocratic rule. Other examples are American Civil War, 1865; Russian Revolution
1917, Pak- Bangladesh War, 1971 etc.
3. Theory of Social Concern.—This theory is propounded by William
Kornhauser who explained that cult-membership of people prompts them to join a
group in order to have a sense of belonging. This often leads to hatred against other
groups of society resulting into riots, agitations and group-clashes which are different
154 People's movement against authoritarian regime of Hosni Mubarak in Egypt, for replacement
of democracy in February 2011 followed by peoples uprising against the autocratic rulers of
Libya, Yatnan, Jordan, Iraq and Morracco.
155 The horrors of Nazi holocaust against Jews in Germany in 1930 and conflict in Bosnia and
Herzegovinia with respect to massacre of Bosnian muslims in July 1995 in Srebrenica.
forms of violance. The violence errupted as a result of Mandal Commission's report

in 1994, Malegaon Blast of Sept. 8, 2006 killing 36 persons and injuring more than
100 persons and communal riots which are illustrations on the point.
4. Theory of structural strain.—Many a times people join together and resort
to collective violence due to some generalised belief what they consider to be a norm.
They mobilise into action in the form of collective violence. The recent uprisings in
the middle east countries to replace the monarchies by democratic government may
be cited as an illustration. However, some writers have criticised this theory as being
confusing as this phenomenon is better explained by Frustration- Aggression theory.
5. Resource Mobilisation Theory.—According to this theory, collective
violence requires resource mobilisation by the group of persons indulging in this
action. Time, money and communication resources are pre-requisites for a collective
violent action. Terrorism, naxalite movement provide the best examples to show as to
how these resources are being exploited and misused by these violent groups.
Terrorists attack on US World Trade Centre on September 11, 2001 and on Indian
Parliament on December 13, 2001 amply demonstrate how this theory applies to
vigilante terrorism.
Terrorism & Related Organised International Crimes
Yet another form of organised crime operating not only within the country but
in every corner of the world is terrorism which has become increasingly transactional
in nature. The forms of terrorism are manifold ranging from peasant revolt to
resistance against the government in power for self-determination or internal
autonomy. The commonly accepted definition of terrorism is—"it is a form of
exercising power by systematically provoking alarm, fright or horror." It includes
four main characteristics, namely,—
(1) it is exercised by organised groups;
(2) it is inspired by political motive;
(3) there is systematic and indiscriminate use of violence and breach of law;
and
(4) use of violence is intended to arouse fright or alarm.
Terrorism may be defined as an activity of a person or a group using explosives
or inflammable substances or firearms or other lethal weapons or noxious gases or
other chemicals or any other substance of a hazardous nature with the aim to strike
terror in the society or any section thereof, and with an intent to overawe the
constitution established by law.
It has been universally accepted that "terrorism is the principal challenge today
to plural and democratic societies. It not only destroys human life and property but
also endangers democratic values, social harmony and economic well-being." A
nation's strategy should not be restricted only to deal with the perpetrators of
terrorism but it should also seek to modify the behaviour of the States where terrorists
find safe haven, sanctuary and material subsistence."156
In order to achieve their aims terrorists commit offences such as homicide,
hijacking, hostage taking, robbery, extortion and their victims are usually leading
politicians, VIPs, high military personnel etc. The terrorists often argue that they are
fighting for a noble cause of combating an unfair system or regime which is operating
on principles of injustice and intend to re-establish a legal order.157 Whatever be the
156 Prime Minister's address at the Armed Force's Combined Commanders Annual
Conference held at New Delhi in October, 2006.
157Examples of terrorist groups are Peoples' War Group in Andhra Pradesh, Dodos in Assam,
motive behind these organised law-violators in the form of terrorists, the fact remains
that their activities result in mass destruction of men and material and they pose a
positive danger to the community or nation as a whole. When terrorism operates
internationally, it poses a threat to international peace and security.158
At the international level, hijacking, piracy, illegal transaction of firearms,
explosives, contraband goods, money laundering etc. are some criminal activities
which are carried on in the form of organised crime. War crimes against any civil
population before or during war are also covered under the category of international
organised crime.
The existence of terrorism and other international crimes warrants setting up of
an International Criminal Court which should have jurisdiction over all such crimes.
The establishment of the U.N. International Criminal Tribunal in Hague on 28th June,
2001 is a welcome step in this direction.
It must be stated that modernised tele-communication services and information
technology have proved a boon for criminal conspiracies and just as legitimate
organisations in the private and public sectors rely upon information systems for
communication and record keeping, so too are activities of criminal organisations
enhanced by technology. There is evidence of telecommunication and on-line internet
equipments being used to facilitate organised drug-trafficking, gambling, prostitution,
money laundering, child pornography and illegal arms deal.159
The use of encryption technology may place criminal communications beyond
the reach of law enforcement agencies. The use of computer networks to produce and
distribute pornographic material has become a serious subject of attention as these
materials can be imported across national borders in the shortest possible time.
Again, digital technology permits reproduction and easy dissemination of print,
graphics, sound and multi-media combinations. The temptation to reproduce
copyrighted material for personal use, for sale at a lower price, or for free
distribution, has caused 'insiderable concern to owners of copyrighted material.
Organised criminal gangs are involved in such crimes at national and international
level.
It may be concluded that with the widespread use of electronic communication
and rise of internet to handle things such as e-trading, shopping, banking etc. the
security and reliability of these networks needs to be assured for the well being of
trade, commerce and industry. The emerging trend of cyber crimes which are
committed in an organised manner necessitates adequate legal measures to be
initiated to ensure that perpetrators of such crime are held accountable for their illegal
activities. The International Chamber of Commerce has established an Anti-Cyber
Crime Unit which will work in cooperation with INTERPOL (International Police
Organisation) to combat organised cyber crimes.
In the wake of these new developments in modem science and technology, there
has been unprecedented increase in opportunities and resources for organised crimes
all over the world. The age-old methods of crime detection and investigation have
therefore, been rendered inadequate to meet the new challenges. Computerisation of
the working of police and use of computerised forensic methods for crime
Maoists in Nepal, Chechen Rebels in Russia, German Red Army Fache (RAF) is the biggest and
most powerful terrorist group having its links with more than a dozen European countries.
158All-Qaeda under Osama-bin-Laden; Abu Musab-al-Zarqawi, which is U.S.A.'s number one
enemy in Iraq, His-bul-Mujahideen in J. & K. are some examples.
159 Paper presented by Adam Graycor, Director, Australian Institute of Criminology at the Centre
of Criminology in University of Hong Kong on 19th February, 2000.
investigation along with video-conferencing technology for administrative and

judicial work, electronic filing of documents and access through website etc. are some
of the measures which would enhance the efficiency of police to exercise effective
control on organised crimes. Although a beginning has already been made in this
direction, but further steps must be taken to convert all the existing police stations
into electronically flexible stations having internet link and integration of audio, video
and data communications and information facilities.
White Collar Crime
I tcriminal
is common knowledge that certain professions offer lucrative opportunities for
acts and unethical practices which hardly attract public attention. There
have been croocks and unethical persons in business, various professions and even in
public life. They tend to become unscrupulous because of their neglect at school,
home and other social institutions where people get training for citizenship and
character building. These deviants have scant regard for honesty and other ethical
values. Therefore they carry on their illegal activities with impunity without the fear
of loss of prestige or status. The crimes of this nature are called 'white-collar crimes'
and they are essentially an outcome of the competitive economy of mid-twentieth
century.
Historical Background :
The concept of white collar crime is usually associated with E.H. Sutherland
whose penetrating work in this area focused the attention of criminologists on its
demoralising effect on the total crime picture. Sutherland pointed out that besides the
traditional crimes such as assault, robbery, dacoity, murder, rape, kidnapping and
other acts involving violence, there are certain anti-social activities which the persons
of upper strata carry on in course of their occupation or business. These activities for a
long time were accepted as a part of usual business tactics necessary for a shrewd
professional man for his success in profession or business. Thus, any complaint
against such tactics often went unheeded and unpunished.
It must, however, be stated that Sutherland was preceded by other writers who
focused attention on the dangers to society from the upper socio-economic group who
exploited the accepted economic system to the detriment of common masses. Albert
Morris refers to a paper entitled 'Criminal Capitalists’ which was read by Edwin C. Hill
before the International Congress on the Prevention And Repression of Crime at
London in 1872. In this paper the learned writer underlined the growing incidence of
crime as an organised business and its evil effects on society. In 1934, Morris drew
attention to the necessity of a change in emphasis regarding crime. He asserted that
anti-social activities of persons of high status committed in course of their profession
must be brought within the category of crime and should be made punishable. Finally
E.H. Sutherland through his pioneering work emphasised that these 'upper world'
crimes which are committed by the persons of upper socio-economic groups in course
of their occupation violating the trust, should be termed "White Collar Crime" so as to
be distinguished from traditionl crime which he called, "Blue Collar Crime".
Sutherland further pointed out that white collar crimes differ from the crimes
committed by criminal syndicates. This distinction could be based on the
extent of presumed respectability. For instance, if a person who belongs to a

respectable class of society and possesses some degree of good reputation, sells
shoddy goods, he is committing a white collar crime, but if a group of persons
unknown to their victims, sell the same type of shoddy goods, that would not be a
white collar crime.
Sutherland carefully examined the depredations of nearly seventy large
corporations involved in white collar crimes and found that the charges against them
included contracts, combinations or conspiracies in restraint of trade,
misrepresentation in advertising, infringements against copyrights, financial frauds
and violations of trust, breach of war-regulations and other miscellaneous offences.
But people knew very little about the trickery of these big business criminals and
even if they knew, they were apathetic towards the problem because of the fact that
"the legal battles involved therein are dragged out for years in the courts, with the
result that the charges are forgotten long before they are settled."
Definition of White Collar Crime
The cocept of "white collar crime" found its place in criminology for the first
time in 1941 when Sutherland published his research paper on white collar
criminality in the American Sociological Review.160 He defined white collar crime as
a "crime committed by persons of respectability and high social status in course of
their occupation". A white-collar criminal belongs to upper socio-economic class
who violates the criminal law while conducting his professional qualities. For
example, misrepresentation through fraudulent advertisements, infringement of
patents, copyrights and trade-marks etc., are frequently resorted to by manufacturers,
industrialists and other persons of repute in course of their occupation with a view to
earning huge profits. Other illustrations of white collar criminality include
publication of fabricated balance sheets and profit and loss account of business,
passing of goods, concealment of defects in the commodity for sale etc.
Southerland further pointed out that a white collar crime is more harmful to
society than ordinary crimes because the financial loss to society from white collar
crimes is far greater than the financial loss from burglaries, robberies larcenies etc.
The most dismal aspect of white collar crimes is that there is no effective programme
for the enforcement of criminal law against them and the influential persons involved
in these offences are able to resist enforcement of law against themselves.
White collar crimes by their very nature are such that the injury or damage
caused as a result of them is so widely diffused in the large body of society that their
gravity in regard to individual victim is almost negligible. It is probably for this
reason that till late these crimes did not attract much attention as they do not carry
with them any loss of social status of the offender even if he is caught or detected.
There is yet another reason for white collar criminals escaping prosecution. In cases
of misrepresentation, concealment or fraud etc., the courts usually place reliance
on the principle of aiveat-eniptor, which signifies that the purchaser must enter
into a deal with open eyes and guard himself against ordinary dishonesty of the
vendor. As a result of this attitude of
the courts there was enormous increase in white collar crime during the period of
depression in 1930's in United States. Perhaps it is for this reason that American
President Roosewelt in 1933 insisted on withdrawal of the doctrine of caveal-einptor
from adjudication of cases involving white collar crime.
160American Sociological Review Vol. V No. 1 (1941).

White Collar Crime 127

Sir Walter Reckless, an eminent American criminologist suggests that white collar
crime represents the offences of businessmen who are in a position to determine the
policies and activities of business.161 Some authorities suggest that white collar crimes
are committed by persons of status not for need but for greed.162
Referring to this variety of the upper world of crime, Barnes and Teaters quoted
Lord Acton who said, "power tends to corrupt and absolute power tends to corrupt
absolutely". Wherever citizens of a particular nation become apethetic to the working
of their Government, corruption and alliance between public servants, politicians and
the criminal world become rampant resulting is crimes such as breach of trust, fraud
and other malpractices.163
During the Truman administration in U.S.A. the well known "Fine percenters"
and "Friendship Racket" operated between the high ups close to President and
contractors who procured war contracts. Bruce Cation's book "The War Lords of
Washington", amply reveals the story of the callousness of some businessmen during
World War II. It indicates the indifference, greed, inaptness and arrogance of many of
those responsible for conducting a war and how they shelved of the democratic ideals
for their personal gain while performing their official duties. The reason for such deals
remaining undetected as pointed out by Sutherland was that "the fine line between
criminal activity and immorality either in business or in government is often difficult
to discern".
It must be emphatically stated that white collar criminality thrives because of
public apathy to it. The reason for this public insensibility is that firstly such criminals
operate within the strict letter of the law and exploit the credibility of their victims ;
and secondly, the legal battles involved are dragged out for years in the courts, with
the result the gravity of the offence is completely lost in the oblivion. That apart, the
impact of white collar crime is so much diffused in the community that the individual
victims are only marginally affected by it, and, therefore, they conveniently forget all
about it.
There is yet another important point in context of white collar crime. At times,
the members of the community themselves contribute to the commission of various
white collar crimes willingly or unwillingly. For instance, illegal gratification to
public servants to get the work done quickly, black-marketing in times of scarcity,
evasive price violations, rent-ceiling violations etc. are some of the common examples
where 'victims' of the crime are themselves to be blamed for involvement in white
collar criminality. In fact, such crimes cannot be committed unless there is a demand
for illegal favour from consumers and they are actively involved in the deal.
Criticism of Sutherland's views on White Collar Crime
Sutherland's definition of white collar crime has evoked criticism from certain
quarters. Coleman and Moynihan164 pointed out that the lack of definite criteria for
determining who are 'persons of respectability and status' has made Sutherland's
definition of white collar crime most controversial. It seems likely that what Sutherland
meant by this is absence from convictions for crimes other than white collar crimes.
The element of 'high social status' as used in the definition also leads to confusion :
Clearly it has far narrower meaning than is given to that term in everyday usage.
161 Walter Reckless : The Crime Problem, p. 345.

162 Goswami P. : Criminology (1964 Ed.), p 249.
163 The widespread corruption, frauds, scams and scandals involving thousand of crores of nipees
loss to the nation during the UPA Government rule in India (2006-2011) bears testimony to this
phenomenon.
164 Coleman & Moynihan : Understanding Criminal Data (1996) pp. 8-10.

Sutherland himself did not stick to this meaning and included thefts and frauds
committed by middle or even lower middle-class workers in course of their
employment or work. Some critics have suggested that such crimes should have been
called as 'occupational crimes' instead of being termed as 'white collar crime'. It is
further argued that in fact the important element in the definition of white collar crime
is not the socio-economic status of the individual, but rather the type of crime and the
circumstances of its commission. These usually include pilfering, false accounting,
bribery, embezzlement etc. Tax-evasion is not an authentic white collar crime, at least
in terms of Sutherland's definition because although associated with work, it is not
committed in the course of an occupation. Some critics further allege that such
violations come within the purview of the Special Commissions, Tribunals and Boards
instead of normal criminal justice administrators. Therefore, strictly speaking, they
cannot result into conviction of the offender and hence he cannot be called 'criminal' in
real sense of the term. Commenting on this aspect of the issue, Tappan observes that
treating persons committing white collar crime as criminals would mean deviating
from legal definition of crime inasmuch as personal value considerations of the
administrator would gain primary in place of precision and clarity of legal provisions
in deciding such cases.165 Sutherland, however, justifies the special procedure of trial for
white collar criminals by administrative agencies on the ground that it would protect
the offender from the stigma of criminal prosecution.
Another criticism quite often advanced against Sutherland's definition of white
collar crime is that it includes even those violations of law which are not committed in
course of occupation or profession and these violations do not necessarily belong to
upper strata of society or the so-called 'prestigeous groups'. For example, tax evasion
is not committed only by persons of high status but it can be committed by persons
belonging to middle or even lower strata of society.
Yet another objection against the definition of white collar crime is that it does
not necessarily require mens rea which is an essential ingredient of a crime. The
doctrine of mens rea based on common law has no application to statutory offences in
India and the requirement of guilty mind may be excluded either expressly or by
implication in such cases.
Contributing Factors
Of all the factors, the economic and industrial growth throughout the
165 Tappan P.W. : Who is Criminal : American Sociological, Review 12, pp. 96-102.
world has perhaps been the most potential cause of increase in white collar
crimes in recent years. The changing socio-economic scenario of the society coupled
with increase in wealth and prosperity has furnished opportunities for such crimes.
Commenting on the growing incidence of white collar crime in India, the Law
Commission in its Twenty-ninth Report166 observed that modern scientific and
technological developments and monopolistic trends in business world have led to
enoromous increase in white collar crimes.
The post-independence period in India ushered an era of welfare activities which
necessitated regulatory measure167 on the part of government to control means of
production and distribution so as to subserve the common good.168 The contravention
of such regulatory measures generally gives rise to white collar criminality.
Marshal B. Clinard asserted that the problem of white collar criminality has its
root in competitive business community which tries to oust their rival competitors in
order to earn huge profits. Sometimes such crimes may also be committed merely for
the sake of retaining existence in the competitive business. To illustrate, though there
is a prescribed code of ethics for the practising lawyers but since the very nature of
their profession involves the spirit of combat and competition, they often resort
unlawful tactics such as concealment or misrepresentation of facts, which if detected,
is punishable under the law. To take another example, the private educational
institutions in India which receive public-aid or grants furnish false accounts simply
for the sake of retaining their existence. Likewise, the members of industrial and
business class who enjoy high status in the society have a tendency to suppress their
real profits by furnishing false and fabricated accounts of their income and property in
order to claim tax-exemptions or avoid payment of heavy taxes.
One more reason for the multiplicity of white collar crime is relatively high
socio-economic status of white collar criminals. They belong to an influential group
which is powerful enough to handle their occupation tactfully and persons affected
thereby hardly know that they are being victimised. Moreover, the public in general is
also somewhat apathetic to such crimes thus causing obstruction in prosecution and
punishment of white collar criminals.
It is often alleged that criminal law administrators and judges being members of
upper strata of the society, are generally sympathetic towards white collar criminals
while dealing with them. But there seems no justification in this assertion. If this
allegation is based on the large number of acquittals of white collar criminals, it may
be pointed out that it is not because of the sympathy of Judges for those criminals but
because of the thin line of demarcation between criminality and immorality involved
in white collar crimes.
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 cyber crimes. 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 victim without
166 Law Commission of India, 29th Report (1966) p. 3.

167 Examples are Essential Commodities (Amendment) Act, 1993; the Prevention of Food
Adulteration Act, 1954; the Prevention of Corruption Act, 1988; Foreign Exchange Regulation
Act, 1974; Monopolies and Trade Restrictive Practices (Regulation) Act, 1969; Consumer's
Protection Act, 1986 etc.
168 Art. 39(h) and (c) of the Constitution of India.
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 be-?n predicted that there would be simultaneous increase in cyber
crimes with the increase in new internet web sites. The areas affected by cyber crimes
are banking and financial institutions, energy and telecommunication services,
transportation, business, industries etc.
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 reason for enormous increase in white collar crime in recent
decades is to be found in the fast developing economy and industrial growth of this
developing country. The Santhnmm Counnittee Report in its findings gave a vivid picture
of white collar crimes committed by persons of respectability such as businessmen,
industrialists, contractors and suppliers as also the corrupt public officials.169
Highlighting the magnitude of white collar crime in India, the Commission on
'Prevention of Corruption' in its report observed :
"the advance of technological and scientific development is
contributing to the emergence of 'mass society' with a large rank of
file and a small controlling elite, encouraging the growth of
monopolies, the rise of a managerial class and intricate institutional
mechanisms. Strict adherence to high standard of ethical behaviour is
necessary for the even and honest functioning of the new social,
political and economic processes. The inability of all sections of
society to appreciate this need in full results in the emergence and
growth of white collar and economic crimes, renders enforcement of
the laws, themselves not sufficiently deterrent, more-difficult. Tax
evasion and avoidance, share-pushing, malpractices in the share
market and administration of companies, monopolistic control, usury,
under-invoicing or over-invoicing, hoarding, profiteering,
substandard performance of contracts of constructions and supply,
evasion of economic laws, bribery and corruption, election offences
and malpractices are some examples of white collar crime."170
The Commission broadly classified white collar and socio-economic crimes into
eight categories and suggested insertion of a new chapter on white collar crimes in the
Indian Penal Code.
The matter was referred by the Government to the Law Commission of India for
consideration. The Law Commission, however, disagreed with the
169 Santhanam Committee Report, pp. 251-53.

170 Government of India Report of the Commission on Prevention of Corruption (1964) para 2.13, p
11.

proposal and observed that "such offences are better left to be dealt with by special
and self-contained enactments which supplement the basic criminal law."
Interestingly, the Report of the Vivin Bose Commission of Inquiry into the affairs
of Dalmia-Jain group of companies in 1963 highlights how these big industries
indulge in white collar crimes such as fraud,1 falsification of accounts, tampering
with recoids for personal gains and tax-evasion2 etc. Similar observations were
made by Mr. Justice M.C. Chagla about the big business magnate Mundlira who
wanted to "build up an industrial empire of dubious means." There were as many as
124 prosecutions against this business tycoon and companies owned or controlled
by him between 1958 to 1960 and as many as 113 of them resulted into conviction.3
Hoarding, Black Marketing and Adulteration
The white collar crimes which are common to Indian trade and business
world are hoarding, profiteering and black marketing. Violation of foreign
exchange regulations4 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.5 The Law Commission of India has suggested
drastic measures against such offenders. In the Commission's observation the
tedious prosecution process involved in the trial of such cases frustrates the cause of
justice and often results into unjustified acquittal due to defective report of the
analyst or delay in examination of samples or lack of legal expertise etc.6
Tax-evasion
The complexity of tax laws in India has provided sufficient scope for the
1. The CB1 probe against Win Chaddha and Hindujas in the famous Bofors Scandal and
FERA enquiries against Delhi firm Jyotsna Holdings Pvt. Ltd. involving 6.5 crores illegal
commission for a contract of pipes with ONGC in 1988 are glaring illustrations on the point.
The ever biggest Multi-thousand crore security scam by Harshad Mehta during 1991-92
involving persons holding high positions in certain banks including the prestigious and leading
bank, the State Bank of India further evinces the massive corruption, fraud and
mismanagement in Indian Banks and the nexus between bankers and brokers of underworld
gangs. The stock market shares scam in March, 2(X)1, master-minded by Ketan I’arikh, India's
biggest share broker is yet another illustration of manipulations in the stock market.
2. Tax of several crores of rupees is evaded annually by assessees in higher income
groups which results into circulation of black money. Wanchoo Committee appointed by Government of India in
1970 made certain important recommendations to uneorth black money. The Government of India introduced VDIS
(Voluntary Disclosure of Income) Scheme, 1997 to unearth black money.
3. Fourth Annual Report on the Working of Indian Companies Act, 1956 Government of India (1960).
4. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended in 1993 (Act
No. 52 of 1993) w.e.f. 25-6-1993, See also The Smugglers & Foreign Exchange Manipulators (Forfeiture of Property)
Act, 1976.
5. The Consumers Protection Act, 1986; the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDI’S).
Monopolies & Trade Restrictive Practices (Amendment) Act, 1992 are enacted to prevent these
offences which affect the public health.
6. Law Commission of India, 47th Report, p. 83.
ion (1964)
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'. Despite frequent
modifications in the tax-laws of the country the menace of tax-evasion continues unabated and
it is causing considerable loss to government revenue.
The Supreme Court in its majority decision in R.K. Garg v. Union of India171 upholding the
validity of the Special Bearer Bonds (Immunities and Exemption) Act, 1981, observed that the
Act was not intended to encourage tax evasion in future and condone such evasion committed
in past but the real object of the Act was to launch a nation-wide search to unearth undisclosed
wealth by encouraging small incentive to those who declare their undisclosed cash. The main
intention was to unearth 'black money' so as to prevent further loss of government revenues.
It may be pointed out that the problem of generation of black money (unaccounted
money) and its proliferation is not new. The Government of India has formulated voluntary
disclosure Schemes to unearth the black money specially to be used for certain social
objectives. But the results of these schemes have not been very encouraging. The main reason
for unsatisfactory response to these schemes seems to be that tax payers do not want to be
identified as having evaded the tax in the past and the fear of re-opening of their past
assessments and facing roving enquiries also dissuade them from resorting to these schemes.172
It is sigificant to note in this context that what constitutes crime is 'tax evasion' and not
the 'tax avoidance'. Though both these terms appear to be synonymous, there is a fine
distinction between the two. While the former implies non-payment of tax due to be paid, the
latter signifies arranging the spread over of one's income in such a way that it does not incur tax
liability legally and lawfully.173
It may be stated that the Government has introduced various regulatory legislations such
as the Essential Commodities Act, 1955, the Industrial (Development and Regulation) Act,
1951, the Imports and Exports (Control) Act, 1947, the Foreign Exchange (Regulation) Act,
1974, Companies Act, 1956 as amended from time to time, the breach of which results in white
collar criminality. A large majority of white collar crimes are, however, operating within the
letter and spirit of the law and, therefore, do not call for legal action.
White Collar Crime in certain Professions
Some of the professions involving technical expertise and skill provide sufficient
opportunities for white collar criminality. They include medical profession, engineering, legal
practise, private educational institutions etc.
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-drugs and
medicines to patients or chemists. Dialatory tactics. adopted by the members of this profession
in treatment of their patients with a view to extracting huge sums from them has become an
accepted norm, particularly with those medical men who do not have a good practice or have
only a marginal earning.
The persons employed in essential services of the government or other undertakings are
often confronted with the problem of getting leave due to shortage of staff. They, therefore,
procure medical certificate regarding their false sickness and produce it to the department to
171(1981) 133 1TR 239.

172 The VDIS-1997 which ended on 31st Dec., 1997, launched by the Government of India, has also not yielded
the desired results.
173 Provident Investment Company v. Income Tux Commissioner, AIR 1954 Bom. 95.
White Coliar Crime 133
Medical Profession
justify their absence from duty. In return, they have to pay certain amount to the concerned
medical staff. This practice, though a white collar crime, has proved a boon and a workable
alternative to employees who have difficulty in obtaining leave from the employers.
Fake and misleading advertising is yet another area in which the white collar criminals
operate. They make illegal and misleading claims of medical cure through advertisements in
newspapers, magazines, radio and television thus adding to human misery. Many patent
medicines are not only worthless but harmful. Similar advertisements for cosmetics and
adulterated food are also widespread in practice which are injurious to public health. These
persons may not violate the letter of the law in its spirit but they commit crimes which are anti-
social and injurious to public health.
Engineering
In the engineering profession underhand dealings 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. Construction of buildings, roads, canals, dams
and bridges with sub-standered material not only endangers public safety but also results into
huge loss to public exchequer.
Legal Profession
In India the lawyer's profession is not looked with much respect these days. There are two
obvious reasons for this. The deteriorating standards of legal education and unethical practices
resorted to by the members of legal profession to procure clientage are mainly responsible for
the degradation of this profession which was once considered to be one of the noblest
vocations. The instances of fabricating false evidence, engaging professional witnesses,
violating ethical standards of legal profession, resorting to frequent strikes to press their
demands and dialatory tactics in collusion with the ministerial staff of the courts are some of
the common practices which are quite often practised by the legal practitioners.
Generally, the professional crooks and criminal gangs have their own trusted lawyer who
can be depended upon to arrange things and keep himself ready with bail bond or habeas corpus
writ to avoid arrest of the gangster. If the members of the gang are arrested, the lawyer has to
find out ways and means to arrange or 'fix' their release. There are criminal lawyers who
arrange professional alibies, cooked witnesses in close liaison with the police for defending the
gangsters.
Though there is a definite code of conduct for legal profession but it is only an
ornamental document. This does not, however, mean that all lawyers are corrupt and unethical.
Quite a large number of them are most sincere and honest in their profession commanding
great respect from all sections of society. Perhaps, it is because of the peculiar nature of their
profession that the lawyers and advocates have to resort to these tactics in order to survive in
the profession which is becoming more and more competitive with the passage of time.
Educational Institutions
Yet another field where white collar criminals operate with impunity are the privately run
educational institutions in this country. The governing bodies of these institutions manage to
secure large sums by way of government grants or financial aid by submitting fictitious and
fake details about their institutions. The teachers and other staff working in these institutions
receive a meagre salary far less than what they actually sign for, thus allowing a big margin for
the mangement to grab huge amount in this illegal manner. The victimised teachers can hardly
afford to complain about this exploitation to high ups because of the fear of being thrown out
of job. They are, therefore, compelled to compromise with the situation. Although the
Government has introduced the scheme of treasury-payments for teachers of private
institutions, but the problem still persists in one form or the other. That apart, fake and bogus
enrolments of students who arc residing far away from the place of location of these
institutions is yet another source of illegal earning for them. They charge huge amounts by way
of donations or capitation fees from such needy students. Even rackets operate in these
institutions for procuring students to appear in different examinations on the basis of
manipulated eligibility certificates or domicile certificates in return for huge sums. These
dishonest and unscrupulous practices have damaged the standard of education in India to such
an extent that it is causing an irreparable loss to the younger generation.174
More often than not, these privately managed educational institutions as also those
imparting some professional education, enjoy the patronage of some influential politicians and
many of them are even owned by them. Many such institutions are virtually non-existent and
are functioning as commercial shops, enabling the students to get degrees on payment of huge
sums in blatent viotation of the government rules, regulations and norms. The magnitude of this
white collar criminality has adversely affected the standard of education in most States, and,
therefore, the problem needs to be tackled through stringent statutory measures.175
174 This is not to say that all the privately run educational institutions are corrupt. Indeed, there are several
private schools and colleges which have a reputation of being the ideal institutions.
175 For example, see Professor Ynspal ami Another v. State of Clihatisgarli & others, PIL Writ decided by
Supreme Court on February 11, 2(X)5.
White collar crime in business deals

White collar crimes are also rampant in business world. There have always been instances
of violation of trust. Sutherland made a careful study of a number of large corporations and
business houses in United States and found that they were involved in illegal contracts,
combinations or conspiracies in restraint of trade, misrepresentation in advertising,
infringements against copyrights and trade marks, unfair labour practices, bribing public
officials and so on. The public hardly knows the trickery of business criminals as they treat it
as not too important for their purpose.
Sutherland attributed the highest degree of criminality to business world which includes
traders, businessmen and industrialists. It has been held that "business communities in India of
large and small merchants are basically
dishonest bunch of crooks ..... nowhere in the world do businessmen get rich so
qiuckly as they do in India".176
The Report of the Monopolies Inquiry Commission expressed great concern about the
chronic problem of hoarding, profiteering and blackmarketing of essential commodities by
traders in India. In times of shortage and scarcity of consumer commodities, the traders
withdraw the stock and subsequently dispose it of at exorbitant prices.177
The Santhanam Committee Report on Prevention of Corruption, observed that Indian
businessmen build up secret hoards of foreign exchange abroad through under-invoicing of
exports and over-invoicing of imports violating the Imports & Exports Laws and Foreign
Exchange Regulations.178
Although bribery is an offence under the Prevention of Corruption Act, 1988 and both,
bribe-taker as well as the bribe-giver are equally punishable, but commercial agents and public
officials indulge in illegal gratification for their personal gain and the legal restraints provided
for the purpose are hardly adequate to cure this menace.179 It may, however, be pointed out that
all bribery cases are not necessarily white collar crimes because white collar criminality is
confined to only those illegal activities which the persons of prestigious group, high social
status commit in course of their legitimate business or occupation for financial gain.
Adulteration of edible foodstuffs is also frequently committed by businessmen which is
injurious to public health. The sale and production of spurious drugs and sub-standard
medicines by manufacturers is yet another white collar crime which enables businessmen to
earn huge illegal profits.180 The evil has become so widespread and persistent that it is difficult to get
even air, water and light unpolluted. The constant rise in price and cost of living has made the
consumers cost-conscious. The unscrupulous traders take undue advantage of the situation and
provide adulterated articles of food, drinks or drugs etc. at a cheaper rate and earn huge
profits.1 They even do not hesitate to add poisonous constituents to articles of food and drinks
which are injurious to health. A number of deaths are reported every year due to consumption
of spurious liquor or food poisoning.2
Some of the common adulterants used in various edibles and articles of foodstuffs are :—
(i) injurious colours such as sacrol, succarin etc. in preparation of ice-cream and
kulfi;
(ii) addition of blotting paper or soapstone in panir;
(iii) geru, ratanjot and powdered husk of rice or bran in powdered chillies and
176 N.R.M. Menon's unpublished dissertation entitled, 'A Socio-legal Study of White Collar Crime
in India,' 1968.
177 Report of the Monopolies Inquiry Commission 1965, p. 162.
178 Santhanam Committee Report, p. 253.
179 See R.S. Na\/ak v. A.R. Antulei/, AIR 1984 SC 684; P.V. Narasimlm Rno v. State, AIR 1998 SC
201)1 etc.
180 Pharmaceutical Inquiry Committee Report, 1954, p. 146.
spices;
(iv) coal-tar in bataslm and other sweets;
(v) horse-dung, powdered bran etc. in dlwnia.
These are only a few examples of adulteration in food and drinks. Despite stringent
provisions in I PC, Adulteration Act, Drugs Act and Opium Act, the menace of adulteration
still subsists and laws have failed to eradicate this evil.
White collar crimes also operate in insurance business where both the insured as well as
insurer earn considerable profit by making false and fabricated claims. Instances are not
wanting when intentional house-burning, automobile destruction and even murders are planned
by the persons of respectable community in order to make good fortunes from the manipulated
insurance claims.
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
thousand to two lakhs of rupees. The modus operandi of these placement racket operators is
simple. They issue advertisements in leading dailies offering jobs in blue-chip companies.
When highly educated and professionals approach them, the person running the placement
office convinces them that he is in good books of the management of some reputed firms and
companies. He collects an amount ranging from Rs. 100/- to 200/- as registration fee from them
and contacts the applicants at their residences claiming himself to be a company's
representative or conducts interviews on telephone. After he is convinced that he has won the
confidence of the job-seeker, he extracts money from them and issues fake appointment orders.
These racketeers give a fake address of their office so that they can escape detection and police
action. Due to the acute unemployment problem, fake placement consultancies have become
money-spinning machines for several cheats who are white collar criminals. These agencies
thrive because of the absence of data relating to genuine job providers and there being no
adequate monitoring of such agencies.
White collar crime distinguished from conventional crime
____ It must be noted that white collar criminality has a close affinity to the
1. K.D. Gaur (Ed.) : Criminal Law and Criminology (2(X)3) p. 285.
2. Ibid.
attitudes and values of culture in a particular society. This is evident from the fact that white
collar criminals are intelligent, stable, successful and men of high social status as compared
with the ordinary criminals. They are foresighted persons belonging to the prestigious group of
society. White collar crimes which are committed in commercial world are indirect,
anonymous, impersonal and difficult to detect. As against this, ordinary criminals commit
crimes which are direct and involve physical action such as beating, removal of property or use
of force, etc. which can be easily indentified and detected. It is often said that ordinary crimes
which are otherwise called 'blue collar crimes' are more common with the under-privileged
class while the white collar crimes are committed by the members of privileged group who
belong to upper strata of society. Edwin Sutherland, however, suggests that status alone is not
determinant of white collar or blue collar crime. This is evident from the fact that even the most
privileged and prestiged persons may commit heinous crime such as assault, murder, rape or
kidnapping for which they can be severely punished, while, on the other hand, most under-
privileged persons may be involved in a white collar crime like tax evasion, corruption or
misrepresentation which may not be looked as serious offence. This however, does not mean
that white collar crimes are petty offences because they do not carry major punishment.
Undoubtedly, the penologist hitherto confined their attention to prevention of ordinary
predatory crimes but the recent penal programmes sufficiently indicate that emphasis has now

shifted to suppression of white collar criminality with equal vigour and strength. The
amendments introduced in the Indian Companies Act in 2000, Monopolies And Restrictive
Trade Practices Act, in 1992 (subsequently repealed by Competition Act, 2002), Insurance and
Banking laws, the appointment of Lokpal, Lokayukta and tightening of governmental control
over private business groups sufficiently reflect upon the Government's determination to
suppress white collar criminality in India.
There is much resemblance between white collar and the blue-collar crime. Both owe
their origin to common law and are adaptations of principles of theft, fraud etc. to modern
socio-economic institutions and in fact there is no basic difference between the two. The only
peculiarity of white collar crime is that it is committed by the persons of relatively high status
of society. The criminal content in both the types is more or less common.181 It must, however,
be noted that mens rea or guilty mind is an essential ingredient of every blue collar crime but
many statutes dealing with white collar crime do not require mens rea in strict sense of the term.
The doctrine of constructive mens rea182 applies in such cases.
It must be stated that besides being a social problem, white collar crime is also a legal
problem. As £. H. Sutherland rightly puts it, no distinction in terms of social status, occupational
activity, attitude or gravity of consequences can separate white collar crime from those of
traditional crime.183 The only distinguishing feature of this type of crime is the temptation for
considerable material gain with little or no loss of status. This again, gives a misleading
impression that the executive and judicial authorities who are concerned with the prevention of
crime react favourably to the upper and middle class society and dispose of white collar
criminals with mere censure or admonition while other criminals are subjected to severe penal
sanctions under the law without being given any pre-warning. But that the reason for this soft
attitude of law-makers and prosecutors towards white collar criminals is perhaps the latter's
closer contacts with agencies of social control on account of their social status and privileged
position. More often than not, these criminals are friendly with the top ranking public officials.
That apart, the impact of white collar crime is so widely diffused in a large number of people
that it does not aggravate the feelings of one single individual.184 Therefore, the public cry
against white collar criminality is far less than for the predatory crimes.
Commenting on the preponderance of white collar crime in the modern time Edwin
Sutherland rightly comments that, "social disorganisation on account of individualistic policies
and competitive economy are the root causes for this type of criminality". It is rather a
reflection on society’s attitude towards different types of crimes and the accepted values of its
culture.
The financial cost of white collar crime is probably several times greater than that of all
the crimes taken together. In a recent study it has been concluded that the financial loss to
society from white collar crime is far greater than the financial loss from the predatory crimes
committed by persons of lower socio-economic status. It has been further concluded that the
average loss per burglary is less than ten thousand rupees and a burglary which yields as much
as one lakh of rupees is exceedingly rare. On the other hand, there may be several crores rupees
embezzlements reported in one year. Notably, these embezzlements are nothing as compared
with the large scale crimes committed by corporations, investment trusts and public utility
concerns. It can, therefore, be inferred that white collar criminals violate trust and create
181 (Aug. 1982) Cr. L.j. p. 45.

182 Relevant cases are C.S. Bansal v. Delhi Administration (1963) 2 Cr LJ 439 (SC) as distinguished from Dr.
Vimla v. Delhi Administration, AIR 1962 SC 1572 ; and the Madras High Court decision in Walcott's Case i.e.
Daniel Hailey Walcott v. State, (1968) 1 MLJ 229 involving offences of cheating and forgery.
183 Edwin Sutherland—"Is White Collar Crime a Crime ?" (American Sociological Review April
1945), pp. 132-137.
184 (1978) 3 SCC 544. It must, however, be noted that this being a case of forgery punishable under
I.P.C., is not covered under white collar criminality.
distrust which lowers social morale and results into social disorganisation to a large extent
while other crimes produce relatively little effect on social institutions.
By way of generalisation it may be stated that like other criminal behaviour, white collar
criminality can best be explained through the process of differential association. It is a generic
explanation for both white collar as also the blue collar criminality. Those who become white
collar criminals generally start their career in good neighbourhoods and good homes, well
educated with some idealism and get into peculiar business situations in which criminality is
practically a routine way of life. Another explanation for white collar criminality is to be found
in the process of social disorganisation in the community.2
Remedial Measures
In a country like India where large scale starvation, mass illiteracy and ignorance affect
the life of the people, white collar crimes are bound to multiply in large proportion. Control of
these crimes is a crucial problem for the criminal
1. R. Deb : Principles of Criminology, Criminal Law and Investigation, Vol. 1 (2nd Ed.) p. 11.
2. David Dressier : Readings in Criminology and Penology, (Second Reprint 1966), p. 91.

justice administration in this country. However, some of the remedial measures for combating
white collar criminality may be stated as follows :—
1. Creating public awareness against these crimes through the media of press,
platform and other audo-visual aids. Intensive legal literacy programmes may
perhaps help in reducing the incidence of white collar criminality to a considerable
extent.
2. Special tribunals should be constituted with power to award sentence of
imprisonment upto ten years for white collar criminals.
3. Stringent regulatory laws and drastic punishment for white collar criminals may
help in reducing these crimes. Even legislations with retrospective operation may
be justified for this purpose. Dr. Radhakrishnan, the Second President of India, in
this context once observed :
"the practitioner of this evil {i.e. white collar and socio-economic crimes) the
hoarders, the profiteers, the black marketeers, and speculators are the worst
enemies of our country. They have to be dealt with sternly, however well placed,
important and influential they may be, if we acquiesce in wrong-doing, people will
lose faith in us."
The penalty for white collar crime which are a potential damages to human
lives may be extended to the imprisonment for life or even to death, if the
circumstances so demand.
4. A separate chapter on white collar crimes and socio-economic crimes should be
incorporated in the Indian Penal Code by amending the Code so that white collar
criminals who are convicted by the court do not escape punishment because of
their high social status.
5 White collar offenders should be dealt with sternly by prescribing stiffer
. punishments keeping in view the gravity of injury caused to society
because of these crimes. The Supreme Court, in M. H. Haskot v. State of
Maharashtra/ in this context observed, "soft sentencing justice is gross
injustice where many innocents are the potential victims".
There is an urgent need for a National Crime Commission which may
squarely tackle the problem of crime and criminality in all its facets.
6. Above all, public vigilance seems to be the cornerstone of anti-white
collar crime strategy. Unless white collar crimes become abhorrent to
public mind, it will not be possible to contain this growing menace. In
7 order to attain this objective, there is need for strengthening of morals
. particularly, in the higher strata and among the public ser\'ices. It is further
necessary to evolve sound group-norms and service ethics based on the
twin concepts of absolute honesty and integrity for the sake of national
welfare. This

is possible through character building at grass-root level and inculcating
a sense of real concern for the nation among youngsters so that they are
prepared and trained for an upright living when they enter the public
life.
Finally, it must be stated that a developing country like India where population
is fast escalating, economic offences are increasing by leaps and bound besides the
traditional crimes. These are mostly associated with middle and upper class of
society and have added new chapter to criminal jurisprudence. To a great extent,
they are an outcome of industrial and commercial developments and progress of
science and new technology. With the growing materialism all around the world,
acquisition of more and more wealth has become the final end of human activity.
Consequently, moral values have either changed or thrown to winds and frauds,
misappropriation, misrepresentation, corruption, adulteration, evasion of tax etc.
have become the techniques of trade, commerce and profession. It is for the criminal
law administrators to contain this tendency by stringent legislative measures. It is
rather disappointing to note that though white collar crimes such as black market
activities, evasive price violations, rent-ceiling violations, rationing-law violations,
illegal financial manoeuvring etc. by businessmen are widespread in society, no
effective programme for repressing them has so far been launched by the law
enforcement agencies. Perhaps the reason for white collar crimes being carried on
unabated is that these crimes are committed generally by influential persons who are
shrewd enough to resist the efforts of law enforcement against them.
The economic offences which are often referred as white collar crimes are
master-minded and carried out in a planned manner by technocrats, highly qualified
persons, well to do businessmen, corporate officials in the form of scams, frauds etc.
facilitated by technological advancements. In these offences, not only individuals get
victimised with pecuniary loss but also, such offences often damage the economy
and the national defence. The offences such as smuggling of narcotic substances,
counterfeiting of currency, financial scams, frauds etc. are some of the white collar
crimes which evoke serious concern and impact on national security and governance.
A Table listing the various economic offences, the relevant legislation and the
enforcing authorities is laid below to give a bird's-eye view about the wide range
over which these offences are operating.
Enforcement Authorities
Tax- Central Board of

evasi
Economic Crimes on Acts of Legislation
Direct
Illegal Trafficking in
contraband goods and Central Excise and Salt Collectors of Central
smuggling Act, 1944 Excise
Antiquity and Art Police/CBI Treasures
Evasion of Excise Duty
Act, 1972
Taxes
Cultural Object's Theft Collectors of
Income Tax Act Customs
Customs Act, 1962

COFEPOSA, 1974

Money Laundering Regulations Act, 1973 Directorate of
Foreign Contribution Enforcement
Foreign contribution (Regulation Act, 1976 Police/CBI
manipulations Transplantation
Trafficking in Human o Police/CBI
body parts f
Human Organs Act,
Illegal Drug Trafficking Police/CBI
1994
Narcotic Drugs and
Psychotropic Substances NCB/Police/CBI
Fraudulent Bankruptcy
Act, 1985 Banking
Corruption and Bribery Regulation Act, 1949 CBI
of Public Servants Frauds Prevention of Corruption
Foreign Exchange Act, 1988 1PC
Enforcement Authorities
Economic Crimes Acts of Legislation
Financial Frauds Import & Export Directorate General of
(Control) Act, 1947 Foreign Trade/CBI
Passport Act, 1920/IPC
Foreign Trade Police/CBI
Police/CBI
Dealing in false Travel
POTA-2002 Arms Act,
Documents and Identity Police/CBI
Cards Fraud Terrorist 1959
Activities Illegal
Explosives Act, 1884 & Police/CBI
Trafficking in Arms Explosive Substances
Illegal Trafficking in Act, 1908
Explosives Copyright Act, 1957 Police/CBI
(Amendments of 1994 &
Theft of Intellectual 1999)
Property Copyright
Computer Crime/ (Amendment) Act, 1999/
Software piracy/ Information Technology Police/CBI
Cyber Law Act, 2000 as amnded in
2008 Companies Act, Police/CBI
1956/ IPC
Stock Market Competition Act, 2002
Manipulations Company State/Anti-Corruption
Frauds (Contraband) Bureau/Vigilance
IPC Bureau/CBI Police/CBI
Eonomic offences may either be cognizable or non-cognizable in nature. The local

police deals with a considerable number of economic offences falling
under the broad category of 'cheating', 'counterfeiting' and 'criminal breach of trust'.
The aforesaid special laws regulating customs, excise, taxes, foreign exchange,
narcotic drugs, banking, insurance, trade and commerce relating to export and import
have been enacted and enforced by the respective departmental enforcement agencies
created under the statutory provisions. The powers for investigation, adjudication,
imposing of fines, penalties (and under special circumstances arrest and detention of
persons) are derived from the concerned special Legislation. The officers of the
enforcement agencies are also vested with powers to summon witnesses, search and
seize goods, documents and confiscate the proceeds. However, despite the special laws
and independent enforcement agencies for handling economic crimes there is no decline
in the crime rate, on the contrary, it is constantly rising. It is indeed a serious cause of
concern for all those who are concerned with the administration of criminal justice.

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Chapter X
Cyber Crimes
The1980'sdevelopment in information technology and electronic media especially from

onwards have given rise to a new variety of computer related crimes which
are commonly called "cyber crimes". The widespread growth of these crimes has
become a matter of global concern and a challenge for the law enforcement agencies in
the new millennium. Because of the peculiar nature of these crimes, they can be
committed anonymously and far away from the victim without being physically present
there. Further, cyber criminals, have a major advantage; they can use computer
technology to inflict damage without risk of being caught. These crimes cover a wide
range of illegal computer-related activities such as theft of communication services,
industrial espionage,185 dissemination of pornographic and sexy offensive material in
cyber-space, electronic money laundering and tax evasion, electronic vandalism,
terrorism186 and extortion, tele-marketing frauds, illegal interception of tele-
communication187 etc.
Cyber Crime—Definition
Some authorities feel that the term 'cyber crime' is a misnomer as this term is
nowhere defined in any statute or Act enacted by the Parliament. In a sense, it is not
radically different from the concept of conventional crime insofar as both include
conduct whether act or omission, which causes breach of law and therefore, it is
punishable by the state.
A cyber crime may be defined as any criminal activity that uses a computer either
as an instrumentality, target or means of perpetrating further crime.188 In other words,
cyber crime is an unlawful act wherein the computer is either a tool or a target or both.
The distinction between cyber crime and conventional crime lies in the
involvement of the medium in cases of cyber crime. That is, there should be
involvement, at any stage, of the virtual cyber space medium in case of a cyber crime.
185 Industrial espionage can even ruin the entire business.

186 Terrorist attack on Indian Parliament on 13th December, 2001 is a glaring illustration on the
point. Computer technology was misused which led to collapse of World Trade Tower Building in
U.S.A. on September 11, 2001. The terrorist attack on Mumbai Taj Hotel on 26th November, 2008
is yet another example wherein nearly 250 innocent persons lost their life. The prime accused in
this ghastly act Ajmal Amil Kasab is arrested and being interrogated by the Mumbai Police.
187 Adam Grayer, Director of Australian Institute of Criminology had enumerated nine types of
cyber crimes in 2(X)0 but many more have emerged during the last 6 years.
188 Parthasarthi Pati : Cyber Crime, p. 5.
Reasons for Cyber Crimes

Before embarking upon the various types of cyber crimes and the modes of
committing them, it would be appropriate to dwell upon the main reasons for
unprecedented rise in cyber crime in recent years. The main reasons may briefly be
stated as follows :—
1. The computer has the unique characteristic of storing data in a
relatively very small space. This affords to derive and remove information
either through physical or virtual medium more easily.
2. Computers are easy to access and therefore unauthorised access by
the use of complex cyber space technology is easily possible by-passing
security system.
3. The computers work on operating systems which are complex and
are composed of millions of codes. The cyber offenders take advantage of
the fallibility of human mind and penetrate into the computer system.
4. One of the significant features of computer system is that evidence
is destroyed in no time. The criminals find it easy to destroy the evidence
soon after the crime is committed which makes it difficult for the
investigating agencies to collect relevant material evidence for prosecuting
the offender.
5. Slightest negligence on the part of computer user in ensuring security of the
computer system may lead to catastrophic consequences as the cyber
criminal may gain illegal access and unauthorised control over the
computer system to accomplish his evil design.
Viruses
It would be no exaggeration to say that there is a cyber crime wave in recent
years. Presently, viruses are the most common problems which are causing serious
damage to computer system. Virus is a program or code that replicates and infects
another programme, sector or document by inserting itself or attaching itself to that
medium. The effect of virus is that it destroys or alters the data files and other
programs. Except in rare cases, the virus does not damage the computer hardware.
There are more than 5000 different strains of viruses across the globe. For instance,
'Love Bug' virus of May, 2000 caused severe damage to working internet sites. So also,
the virus recently developed by Pakistan has defaced the Indian web-site.
Generally, there are two main classes of viruses. The file infectors, which attach
themselves to ordinary program files. File infectors can either be direct action or
resident. A direct-action virus selects one or more of the other programs to infect each
time the program that contains it, is executed. A resident virus hides itself somewhere in
memory. The first time an infected program is executed, and thereafter infects other
programs when they are executed.189
The second category of virus is boot-record infectors. These viruses infect
executable code found in certain system areas on a disk, which are not ordinary files.
Examples include Brain, Sonde, Azusa, Michelangelo etc. which are always resident
viruses. However, there are certain viruses which are able to infect both, hence they are
called "boot and file" virus.190
Virus Hoax
A virus hoax generally appears an e-mail message that describes a particular
virus that does not in fact exist. Such messages are intended to create panic to computer
users. The writer or writers o-mail the warning and include a plea for the reader to
189 Jerusalem 185 virus is an example of resident file infector virus while Vienna virus is an
example of direct action virus.
190 There are several kinds of viruses such as Stealth virus, Polymorphic virus. Fast and Slow
infectors. Sparse infector. Companion virus, Armoured virus. Macro virus etc. The limitation of
space does not permit their details here.
Cyber Crimes 145
forward it to others. The message then spreads like a chain letter, propagating
throughout the Internet as individuals receive it and then innocently forward it. For
example, "Good Times" virus hoax was written in 1994 and since then has circled the
globe many times. It is always advisable to ignore or delete such hoax virus rather than
acting upon it.
Besides virus, there are some common cyber offences which are directed against
computer systems, networks or data while there are others in which computer is used as
an instrument for committing crime. Therefore, considered from this point of view,
cyber crimes may broadly be classified into two major categories :—
1. Cyber crime where computer is itself a target of the crime; and
2. Cyber crime where computer is an instrument of the crime.
1. Computer as a target of the crime
In this category of cyber crime, computer itself is a target of the crime. These
crimes generally include :—
(i) sabotage of computer systems or computer networks;
(ii) sabotage of operating systems and programmes;
(iii) theft of data/information;
(iv) theft of intellectual property, such as computer software;
(v) theft of marketing information; and
(vi) blackmailing based on information gained from computerised files such as
personal history, sexual preferences, financial data, medical information
etc.
2. Computer as an Instrument Facilitating Crime
In this category of crime, the computer is used as an instrument to commit the
crime. The terrorists and criminals are using Internet methods such as e-mail to flesh
out encrypted messages around the world.
In these crimes, computer programs are manipulated to facilitate the offence. For
example, fraudulent use of Automated Teller Machine (ATM) cards and accounts,
frauds related to e-banking or e-commerce, electronic data-interchange etc. are
committed by using computer. Cyber pornography, software piracy, on-line gambling,
copyright infringement, trademark violations are some other illustrations of such
crimes.
Traditional Classification
The traditional classification of cyber crime as suggested by Sieber191 includes
two distinct types, namely, (1) cyber crime of economic type; and (2) cyber crime
against privacy. In the first category, the perpetration of some impairment of resources
is relevant while in the second, the cyber crime affects the privacy of persons.
The economic type of cyber crimes include frauds committed by manipulation of
computer systems, illegal copy of software and computer spying, computer sabotage or
illegal use of computer systems belonging to others etc. The only aim of the offender in
these types of cyber crime is to surpass the access barrier and make illegal use of
computer systems without authorization.
Cyber crime involving violation of right to privacy adversely affects the judicial
right to privacy of a person without affecting any of the proprietary rights of the victim.
General Classification
A more general classification of cyber crimes may possibly be (1) cyber crimes
against persons; (2) cyber crimes against all forms of property; and (3) cyber crimes
against State or society.
191 Sieber Ulrich : The International Handbook on Computer Crime, p. 38.

Cyber crimes against person or individual include harassment via e-mail, stalking,
defamation, unauthorised access to computer systems, indecent exposures, e-mail
spoofing, fraud, cheating and pornography etc.
Computer related crimes against property include computer vandalism,
transmission of virus, denial of service at lack, unauthorised access over computer
system, intellectual property rights violations, Internet time-theft, sale of illegal articles
etc.
Cyber crimes against state or society may comprise possession of unauthorised
information, cyber terrorism, distribution of pirated software, polluting youth through
indecent exposure, trafficking financial scams, forgery, online gambling etc.
Some of the cyber crimes which are generally committed in the cyber space
through computer systems are explained as follows :—
Stalking.—In stalking, persistent messages are sent to unwilling recipients, thus
causing them annoyance, worry and mental torture. Sending of unsolicited e-mails or
spamming is an infringement of right of privacy. Online harassment and threats may
take many forms.
Cyber stalking usually occurs with women who are stalked by men, adolescents or
adult pedophiles. A cyber stalker does not have to leave his home to harass his targets
and has no fear of physical avenge since he cannot be physically touched in cyber
space.
A cyber stalker generally collects all the personal information about the victim
such as name, age, family background, telephone or mobile numbers, workplace etc. He
collects this information from the internet resources such as various profiles the victim
may have filled-in while opening the chat or e-mail account.
The menace of cyber stalking has spread like wild-fire in India and many innocent
women., girls and children are being targeted as its victim.
Hacking —.
Hacking is the most common form of cyber crime in these days. The reason why
hackers indulge in this crime may vary from monetary gain to political interest or it
may even be for the sake of sheer thrill. Hacking may be of different forms such as
web-spoofing, e-mail bombing, trojan attacks, virus attacks, password cracking etc. In
simple words hacking means seeking unauthorised access through computer
network.192
Web-jacking as a specie of hacking is nothing but forcefully taking over control of
a website of someone else or the victim. The motive is usually ransom or attainment of
some illegal political purpose.
E-mail bombing means sending large number of mails to the victim which may be
an individual or a company to cause confusion and harassment.
Trojan is an unauthorised programme which gains control over another's system
by representing itself as an authorised programme.
The administrator of any website has a password and a username, then only he
may use to upload files from his computer on the Webserver where his website is
hosted. This password remains secret with the administrator. If a hacker gets hold of
this username or password, then he can pretend to be the administrator.
Computer hackers may affect the commercial websites or e-mail systems thus
paralysing the entire business.
E-mail spoofing
A spoofed e-mail may be said to be one which misrepresents its origin. That is, it
192Wilson Clay: Computer attack & Cyber Terrorism (2003) p. 19.

Cyber Crimes 147
shows its origin to be different from which it actually originates. For example, where A
sends a threatening e-mail to the President of the students union threatening to detonate
a nuclear device in the college campus and this e-mail was sent from the account of
some other student, 'A' would be guilty of e-mail spoofing.
Computer Vandalism
Literally speaking, vandalism means destroying or damaging property of another.
In the context of cyber crime, computer vandalism includes within it any kind of
physical damage done to the computer o'f any person. It may be in the form of theft of a
computer or some part thereof or a peripheral attached to a computer.
Cyber Terrorism
Despite lighter physical and border security, terrorism has bene a complex
problem faced by the Governments and the policy makers. With the emergence of new
communication technologies, the nature and mode of operation of terrorism has
undergone a radical change giving rise to a new variety of
1. Hacking is punishable under Information Technology Act, 20(X) with imprisonment upto three
years and fine upto rupees one crore for unauthorised access. It is also punishable under Section 66
of Copyright Act with imprisonment upto 3 years and fine upto two lakh rupees.
terrorism called as cyber- terrorism.
According to U.S. National Infra-structure Protection Center, cyber terrorism is
defined as
"a criminal act perpetrated by the use of computer and
telecommunication capabilities, resulting in violence, destruction
and/or disruption of services to create fear by causing confusion and
uncertainty within a given population, with the goal of influencing a
government population to conform to a particular political, social or
ideological agenda.'"
Thus, cyber terrorism may be said to be a convergence of terrorism and cyber
space involving unlawful attacks or threats of attacks against computers, networks and
the information stored therein, in order to coerce or intimidate a government or its
people in furtherance of political, social or ideological objectives.193
Cyber terrorism is resorted to either by attacking the critical infra-structure via
cybcr attacks or by misusing the internet.'
Cyber terrorism has domestic as well as international ramifications. It may be
defined as the premeditated use of disruptive activities or the threat thereof, in cyber
space, with the intention to further social, ideological, religious, political or similar
objectives, or to intimidate any person in furtherance of such objectives. A 'cyber
terrorist' may be defined as a person who uses computer system as a means to achieve
any of the following objectives :—
(i) putting the public or any section of the public in fear; or
(ii) affecting adversely the harmony between different religious, racial,
language or regional groups or castes or communities; or
(iii) coercing or overawing the government established by law; or
(iv) endangering the sovereignty and integrity of the nation.
Every act done in pursuance of the above objectives will be an act of cyber
terrorism.
It hardly needs to be stressed that inter-connectivity of national networks into a
single world wide web is being misused by the cyber terrorists for pursuing their
terrorist activities with impunity. Therefore, international cooperation to combat cyber
terrorism and misuse of internet by terrorist is the urgent need of the time. The
193 Sastry P.K.: Computer science & Computer Forensics (2001) p. 5.

members of the United Nations have expressed their concern about the threat of cyber
crimes, particularly the cyber terrorism and suggested updating the national cyber
forensic systems and legal framework to combat the menace. There is need to develop
new strategies and new national and international policies for effective response to
cyber terrorism.
Generating a 'global consensus' and establishing effective bilateral and
multilateral cooperation among nations would be helpful in promoting information and
network security which would be an effective tool for prevention of cyber terrorism.
Cyber Pornography
Pornography on the internet may take various forms. It may include hosting of
website containing some obscene or prohibited material or use of computers for
producing obscene materials. Such material tends to pervert the thinking of
adolescents and corrupts their mind set. A person who publishes or transmits or
causes to be published in the electronic form any material which is lascivious, or if
its effect is such as to tend to deprave or corrupt the persons who are likely to see,
read or hear the matter contained or embodied in it, is liable to punishment which
may extend to imprisonment upto five years and with fine, which may extend to
rupees one lakh.1 The important ingredients of such an offence are publication and
transmission through any electronic medium, of pornographic material, in any
electronic form.
It may be stated that child pornography constitutes a distinct category of cyber
crime. This is committed by the use of computer and the internet by its abusers to
reach and abuse children sexually throughout the world at any place. The children
arc targeted and trapped by the abusers and they become their victims. Pedophiles
explore this chance by providing their false identity on the internet and make contact
with children in chat-rooms or via e-mails where these children are chatted for
giving their personal information. The pedophiles drag children to the internet for
the purpose of sexual assault so as to use them as sex object. They attract children
by providing them pornographic material. Indecent exposure is also covered in this
category of cyber crime.
Cyber Defamation
Cyber defamation is not different from conventional defamation except that it
involves the use of cyber space medium. Any derogatory statement which is
intended to injure a person's name or reputation on a web-site or sending e-mail
containing defamatory informations to some other person constitute the offence of
cyber defamation.
E-mail Frauds (Spam)
E-mail is an inexpensive and popular device for distributing fraudulent
messages to potential victims. This technique not only helps to assume someone
else's identity, but also helps to hide one's own. Therefore, the person committing
the e-mail has little chance of being detected or identified. The most common e-mail
fraud is 'phishing' i.e., personal information fraud. The purpose of such spams is to
trick the person for divulging his personal information so that the offender can steal
his identity and commit crime in that person's name. Since electronic funds transfer
systems have now begun to proliferate, there is greater risk of transactions being
intercepted or diverted. Now a days valid credit card numbers can be intercepted
electronically as well as physically and the digital information stored on a card can
be counterfeited. Section 74 of the Copyright Act makes internet fraud as an offence
punishable with imprisonment upto two years or with fine which may extend to
rupees one lakh.
Money Laundering
Cyber Crimes 149
It is a kind of cyber crime in which money is illegally downloaded in transit.

There is a phenomenal increase in the incidence of this cyber offence. Out of 146
seizures made by the Enforcement Directorate in money laundering cases in the year
2005 recoveries were made in 106 cases involving seizure of about 9.5 crores of
rupees.
Data diddling
This offence involves changing or erasing of data in subtle ways which makes
it difficult to put the data back or be certain of its accuracy. This is resorted to for the
purpose of illegal monetary gains or for committing a fraud or financial scam.
Intellectual Property Crimes
Intellectual property consists of a bundle of rights which may be violated by
committing software piracy, copyright infringement, trade-mark and service-mark
violations, theft of computer source code etc. Internet being the fastest
telecommunication and information system, it has become a most convenient media
to conduct business transactions. The explosion of digitalization and the internet
have further facilitated the intellectual property right violators to copy and illegally
distribute trade-secrets, trade-marks, logos theft of computer source code etc.
Computer pirates steal away valuable intellectual property when they copy software
music, graphics/pictures, books, movies etc. which are available on the Internet.
Usually most material that the pirates or offenders want to copy is protected by the
copyright which implies that a person cannot take out copies thereof unless permitted
to do so by the copyright owner. It is a punishable offence under the Copyright
Right.194 The various acts to which Copyright Act, 1957 extends are enumerated in
Section 14 of the Act.
Trade-mark is also one of the intellectual property rights that protects the good-
will and reputation of traders and businessmen. These marks are intended to
differentiate goods of a trader from other traders who arc in the same stream of trade
or business.195 Passing-off actions are also covered under the Trademarks Act
wherein a trader passes off his inferior quality goods in the name of some reputed
trader who is selling the same commodity or article. Thus, if a particular logo is
generally associated with and used in relation to product 'A' its use by someone else
in relation to product 'B' would be an infringement of Trademark right and an act of
passing off these illegal activities are carried on through the use of computers or
Internet, it will attract the provisions of the Information Technology Act, 2000. Thus,
in Ridiff Communications Ltd. v. Cyberbooth and Ramesh Naliata,196 the High Court of
Bombay held that "a domain name is more than an internet address and therefore,
entitled to protection under the Trademarks Act, 1957.
In M/s. Sattyam Infoumy Ltds. v. M/s. Sifyiwt Solutions (P.) Ltd.,' the Supreme Court
ruled that with the increase of commercial activities on the internet, a domain name
is also used as a business identifier. It not only serves as an address for internet
communication but also identifies the specific internet site for a specific business or
its goods or services. It, therefore, has all the characteristics of a trademark and a
passing off action can be based for infringement of domain name right.
In the instant case, the appellants were incorporated in 1995 and trading with
194 Section 2(rr.) of the Copyright Act, 1957 as amended in 1994 which came into force w.e.f. May
10, 1995. The Act was amended again in 1999 and came into force on 13th January, 2000.
195'Trademark' is defined in Section 2(l)(2)(b) of the Trademarks Act, 1999.
196AIR 2000 Bom 27.
the domain name 'Sifynet' since June, 1999. They claimed wide reputation and
goodwill in the domain name Sify which was registered with the Internet
Corporation for Assigned Names and Numbers (ICANN) an international registering
body for domain names. The respondent started carrying on business of internet
marketing under the domain name Siffynet from June, 2001. The appellants
challenged the action of respondents, but their claim was rejected by the High Court,
hence they went in appeal before the Supreme Court. The Apex Court held that by
adopting a similar and deceptive name 'Siffy' which was phonetically similar to that
of the appellant's they had tried to cash in on the appellant's reputation as a provider
of internet services, therefore the appellants were entitled to relief. Allowing the
appeal, the Court set aside the decision of the High Court and affirmed the decision
of the City Civil Court.
Again, in Yahoo Inc. v. Aknsh Arora,197 the Delhi High Court granted relief to the
petitioner Yahoo Inc. who sought injunction against the defendant for using domain
name for internet related services. The defendants contended that the provisions of
the Trademark Act were not attracted in this case. But the Court ruled in favour of
the petitioner and held that though service marks are not recognised in India, the
services rendered are to be recognised for 'passing-off' actions.
It may be stated that with a view to protecting the computer database under the
intellectual property law in India, the Copyright Act, 1957, was amended twice, once
in 1994 and again in 1999 which is effective from 13th January, 2000. By these
amendments some new sub-sections to section 2 relating to interpretation clause
were added. Section 2(o) of the Act was amended to change the definition of the
term 'literary work' which now includes computer program (source code as well as
object code) and database which are protected under this Act. As a consequential
change, Section 14 of the Act198 is also amended giving exclusive rights to the
owners to do or authorise the doing among other things to reproduce or rent a
computer database or a computer program.
Infringement of copyright is defined in Section 51 of the Copyright Act. It not
only gives rise to civil action but also imposes criminal liability. Civil remedies are
provided under Chapter XII of the Act whereas penal consequences of 'infringement
of copyright are contained in Chapter XIII of the Act.
Section 63 of the Act, provides that a person infringing or abetting the
infringement is liable to imprisonment upto three years and fine, which may extend
to two lakh rupees. There is enhanced penalty for second or subsequent conviction.199
Section 63-B of the Act further provides that knowingly making use of an
infringing copy of computer software on a computer is a separate offence punishable
with imprisonment for not less than seven days and may extend to three years, and
with fine which shall not be less than rupees fifty thousand and may extend to rupees
two lakh.
Significantly, many areas where information technology has an impact have
been rendered justiciable by the Information Technology Act, 2000. They include e-
commerce, jurisdictional issues, security measures, evidence, e-banking etc.
It may be noted that just as the legitimate business organisations in the private
or public sector rely upon information systems for communication or record deeping,
so also the cyber criminal organisations carry on their illegal activities using
197 1999 PTC 19 Del. 210 (PTC Stands for Patents and Trademarks Cases).
198 AIR 2(XW SC 3549.
199 Section 63-A of the Copyright Act, 1957 as amended in 1999, w.e.f. 13-1-2000.
Cyber Crimes 151
enhanced cyber space technology. Commenting on this aspect, Eric Ellen, one of the
officials of the International Chamber of Commerce (ICC) has predicted that
information technology is not only reshaping the mode of corporate functioning and
emerging new business strategies but it is dramatically increasing the number of
potential cyber criminals. According to him, there is bound to be simultaneous
increase in the incidence of cyber crimes with the new internet sites and users which
currently totals around 40 million worldwide.200
Preventive Legal Measures Against Cyber Crime
Laws are generally meant for meeting the needs of the society and it is,
therefore, a dynamic concept which undergoes changes with the changing need of the
society. The modem information technology evolution has enabled human society to
prosper and make tremendous progress but at the same time given rise to new
problems hereto unknown to mankind and cyber criminality is one such grave area.
The progressive trend of computer technology has accelerated transfer of information
and telecommunicate and increased our capacity to store, search, retrieve and
communicate data over the world in shortest possible time.
Consequent to the advancement of information technology and computer network, a
variety of legal issues related to use (misuse) of Internet as digital processing devices
such as piracy, IPR201 violations, pornography, commercial and banking frauds etc.
have emerged which need to be tackled through the instrumentality of law. Since
cyber space has no geographical boundaries, nor has it physical characteristics such
as sex, age etc. it poses a big challenge before the law enforcement agencies for
regulating cyber-space transactions of citizens within a country's territorial
jurisdiction. Though in practical terms, an Internet user is subject to the laws of the
state within which he or she goes online, but this general rule runs into conflict when
the disputes are international involving other countries as well. Because of the
anonymity of its character and negligible chances of being detected, the cyber
offenders are misusing the computer technology for committing a variety of crimes
which need to be prevented by an effective law and regulatory measures.
Information Technology Act, 2000 202
The Indian Penal Code, 1860 was found insufficient to cater to the needs of
new crimes emerging from Internet expansion. Even some of the traditional crimes
such as conspiracy, solicitation, securities, fraud, espionage etc. are now being
committed through Internet which necessitates a new law to curb them. It was in this
background that the Information Technology Act,203 2000 was enacted in India for
prevention and control of cyber crimes. Prior to the enactment of this Act, the law
200 International Chamber of Commerce (ICC), which is the world's leading private business
grouping, has established an Anti-Cyber Crime Unit on September 30, 1998 which seeks co-
operation of INTERPOL in combating cyber crimes.
201 IPR stands for Intellectual Property Rights.
202 The working of the Information Technology Act for five years during 2001-06 brought to fore
its lacunae and deficiencies and therefore arNnformation Technology (Amendment) Bill, 2(X)6
was introduced in the Parliament on December 15, 2006 which has been passed by both the
Houses of Parliament on 23rd and 24th December, 2008 and received the assent of the President
of India. The newly enacted Act is called "the Information Technology (Amendment) Act, 2(X)8
(Act No. 10 of 2009)."
It seeks to remove the deficiencies of the principal Act and provides for stringent
punishment for cyber crimes.
203 The Information Technology Act, 2000 came into force, w.e.f. October 17, 2000.
applicable to cyber offences was the Indian Penal Code which was enacted long back
in 1860 when no one even thought of computer technology or cyber criminality.
With the coming into force of Information Technology Act, 2000, it became
necessary to introduce certain consequential changes in certain provisions of the
Penal Code as also in the Indian Evidence Act, 1872, in order to meet the new
requirements of the cyber space1 crimes.
With a view to widening the scope of applicability of the provisions of the IPC
so as to include within its ambit, offences involving electronic records, a new Section
29-A has been inserted after Section 29 of the Indian Penal Code which reads as
follows :—
"29-A. Electronic Record.—The words electronic record shall have the
meaning assigned to them in clause (1) of sub-section (1) of Section 2 of the
Information Technology Act, 2000."
Section 2(1) (t) of the Information Technology Act, 2000 defines "electronic
record" which means "data record or data generated image or sound stored, received
or sent in an electronic form or micro-film or computer generated micro-fiche."
As a result of this amendment' in the Indian Penal Code, all the offences related
to "documents" shall also include offences related to "electronic records" which are
committed through cyber space or Internet.
The Information Technology204 Act is based on UNCITRAL205 Model Law on e-
commerce, 1996 in furtherance of the U.N. General Assembly resolution urging the
member states to enact or revise their cyber laws to create a uniform environment for
regulating e-commerce at the international level. The object is to "provide legal
recognition for transactions carried out by electronic data interchange and other
means of electronic communications commonly referred to as e-commerce which
involves use of alternatives to paper based methods of communication and storage of
information to facilitate electronic filing of documents." The Act seeks to prevent
offences which result out of e-commerce and e-governance.
Salient Features of the Information Technology Act, 2000
The Information Technology Act, 2000, came into force with effect from 17th
October, 2000. It has been amended in 2008 and the Amended Act is effective from
February 5, 2009.. The Rules under the Amended Act have also been framed, which
became effective from October 27, 2009.
The salient features of the Information Technology Act, 2000 may briefly be
stated as follows:—
1. The Act provides legal recognition to e-commerce, which facilitates
commercial e-transactions.
2. It recognises records kept in electronic form like any other documentary
record. In this way, at brings electronic transactions at par with paper
transactions in documentary form.
204Hereinafter referred to as I.T. Act.

205 United Nation's Commission on International Trade Law (UNC1TRAL).
Cyber Crimes 153
3. The Act also provides legal recognition to digital signatures which need to
be duly authenticated by the certifying authorities.
4. Cyber Law Appellate tribunal has been set up to hear appeal against
adjudicating authorities.
5. The provisions of the I.T. Act have no application to negotiable
instruments, power of attorney, trust, will and any contract for sale or
conveyance of immovable property.
6. The Act applies to any cyber offence or contravention committed outside
India by a person irrespective of his/her nationality.
7. As provided under Section 90 of the Act, the State Government may, by
notification in 'Official Gazette’ make rules to carry out the provisions of
the Act.
8. Consequent to the passing of this Act, the SEBI had announced that
trading of securities on the internet will be valid in India, but initially
there was no specific provision for protection of confidentiality and net
trading. This lacuna has been removed by the IT (Amendment) Act,
2008.206
Offences under the Act
The various offences and the punishment provided for them are contained in
Chapters IX and XI207 of the Act. These offences are briefly stated as follows :—
1. Unauthorised Access (Section 43).—The section lays down that any
person who accesses or secures access to a computer, computer system or computer
network without permission of the owner or any person in charge of such computer,
computer system or computer network, shall be liable to pay damages by way of
compensation not exceeding one crore rupees to the person who is so affected.
The term "access" as defined in Section 2(l)(a) of the I.T. Act, means "gaining
entry into, instructing or communicating with the logical, arithmetical or monetary
function resources of a computer, computer system or computer network." •
The following acts have been construed to fall within the purview of the term
'access' as contemplated by the Act :—
(a) unlawfully switching over a computer;
(b) using a software program installed on a computer;
(c) viewing the contents of a floppy disk illegally;
(d) illegally switching off a computer;
(e) taking a computer print-out illegally;
(f) logging on the Internet; and
(g) pinging a computer.
The offence of unauthorised access is completed when data, data-base208 or
information is downloaded, copied or extracted illegally from one computer to
another. The term "download" connotes transfer of information from one computer to
another.
206 Dr. Vishwanath Paranjape: Legal Dimensions of Cyber Crimes & Preventive Laws
(2010) p. 211-12.
207 Chapter IX of the IT Act deals with cyber crimes which are punishable with fine only whereas
Chapter XI enumerates the cyber crimes which are punishable with imprisonment and fine.
208Explanation appended to Section 43 clarifies that a computer data-base means representation of
information, knowledge, facts, concepts or instnictions in text, image, audio, video that are
prepared in formalised manner and are intended for use in a computer.
A new Section 43-A inserted in the principal Act by the amendment Act of
2008 provides for compensation (to the person affected) for failure to protect personal
data or information in a computer resource. The section thus seeks to provide security
to personal data and information against unauthorised assess.
2. Failure to furnish information, return etc. (Section 44).—Where a person is
required under this Act or any rules made thereunder to furnish any document, return
or report to the Controller or Certifying Authority, fails to furnish the same, he shall
be liable to pay penalty not exceeding 1.5 lakh rupees for each failure and in case of
default, a penalty of 5,000/- rupees for everyday during which such failure or default
continues.
Section 45 of the Act provides for penalty for contravention of any rules made
under the Act for which no penalty is specially provided in the Act. Thus, this section
relates to residuary penalty and applies to certain sections209 of the Act.
Section 46 of the Act provides for adjudication of penalties to be imposed on
the contravener after giving him reasonable opportunity of making representation in
his case. The Adjudication officer shall have power to adjudicate matters in which the
claim for injury or damage does not exceed five crore rupees. However, where the
claim or damage exceeds this limit the jurisdiction to adjudicate shall vest in the
competent court.210
3. Tampering with computer source documents (Section 65).— Tampering
with the computer source documents is made punishable under Section 65 of the I.T.
Act. The offences in respect of computer source documents (codes) are to be kept or
maintained by law include knowingly or intentionally
(i) concealing; (ii) destroying; (iii) altering; (iv) causing another to conceal;
(v) causing another to destroy; (vi) causing another to alter the computer source
code. In simpler words, for the purpose of Section 65, tampering means to conceal
(hide or keep secret), destroy (demolish or reduce to nothing) or alter (change in
characteristic or position) the computer source document.
4. Hacking (Section 66).—The essential ingredients of the hacking are
intention to cause wrongful loss or damage to any person by unlawful means or
having knowledge that information residing in a computer resource document if
concealed, destroyed or altered would cause damage to any person. This offence is
punishable under this section with imprisonment which may extend to three years or
with fine, which may extend to two lakh rupees or with both.
5. Publishing of information which is obscene in electronic form (Section
67).—Pornography on the internet is punishable under section 67 of the I.T. Act. The
term 'publishing' for the purpose of this section means, "to make generally known,
formally promulgate or issue copies for sale to public." This disseminating of
pornographic material on the website is an offence punishable with imprisonment
upto three years or with fine which may extend to two lakh rupees, or with both.
6. Failure to comply with directions of Controller (Section 68).—Section 68
authorises the Controller or Certifying Authority to intercept any information
transmitted through any computer resource whenever it is expedient to do so. Failure
to comply with such order shall render a person liable to imprisonment for a term
upto three years or fine upto two lakh rupees, or with both. However, the order passed
by the Controller or Certifying Authority should be made if it is necessary to ensure
209 The relevant sections are Secs. 24, 25, 29, 30, 31, 32, 34 and 39 of the IT Act 2000.
210 See (1-A) inserted in Section 46 of the principal Act by the I.T. (Amendment) Act,
2(X>8.
Cyber Crimes 155
compliance of any of the provisions of the I.T. Act or the rules made thereunder.
7. Power to issue directions of interceptions or monitoring or decryption of
any information through any computer resource. (Section 69).—The Controller or
Certifying Authority or any employee of such Authority is authorised to intercept any
information transmitted through any computer resource when it is expedient to do so
in the interest of the sovereignty or integrity of India, the security of the state,
friendly relations with foreign states or public order or for preventing incitement to
commission of any cognizable offence.
The new Section 69-A inserted in the principal Act by the Amendment Act of
2008 further empowers the Central Government to issue directions for blocking for
public access of any information through any computer resource, in the interest of
sovereignty and integrity of India. The reasons for doing so, should, however, he
recorded in writing. The intermediary who fails to comply with the direction issued
by the Government under this Section, shall be punished with imprisonment for a
term which may extend to seven years, and shall also be liable to fine.
Section 69-B as inserted by the I.T. (Amendment) Act of 2008 further
empowers the Government to authorise monitoring and collection of traffic data or
information through any computer resource for cyber security purposes. The
punishment for contravention of this provision by the intermediary shall be
imprisonment which may extend to three years and also fine.
The information211 referred to in this section would apply to e-mail messages,
pass-word protected files, encrypted information etc.
8. Accessing Protected System (Section 70).—The special provisions
contained in Section 70 relate to protected systems. The section provides that the
appropriate Government212 may, by notification in the Official Gazette, declare any
computer, computer system or computer network to be a 'protected system'.
Any person who sccurcs access or attempts to secure access to a protected
system in contravention of the provisions of this section shall be liable to punishment
with imprisonment of either description which may extend to ten years and shall also
be liable to fine.
Two new sections, namely, Secs. 70-A and 70-B have been inserted in the
principal Act by the I.T (Amendment) Act, 2008 which provide for appointment of a
National Nodal Agency which will be responsible for all measures including
Research and Development relating to protection of Central Information
Infrastructure. Any organisation of the Govt, may be designated as the National
Nodal Agency for this purpose. The National Nodal Agency so appointed, shall be
called the Indian Computer Emergency Response Team (Section 70-B).
9. Misrepresentation (Section 71).—Any misrepresentation while applying for
a digital signature certification to the Controller or Certifying Authority has been
made an offence under section 71 of the Act. Both, misrepresentation of any material
fact and/or suppressing any material fact from the Controller or Certifying Authority
for obtaining licence or digital signature certificate shall constitute an offence.
A person while applying for a licence has to fill in the form as required by Rule
10 of the I.T. (Certifying Authorities) Rules, 2000 giving full details about himself. In
211 Sub-section (3) of Section 69.

212 The term 'Appropriate Government' as defined in Section 2(l)(e) of the I.T. Act, means the
State Government in respect of any matter enumerated in List II, Schedule VIII of the
Constitution of India in relation to a State law and in any other case, it shall be the Central
Government.
case of applying for a digital signature certificate, a person is required to fill in the
form prescribed by Rule 23 with complete information about himself. If any of the
above information/details are misrepresented or suppressed, then the person guilty of
such misrepresentation shall be punished with imprisonment for a term which may
extend to two years, or with fine which may extend to one lakh rupees or with both.
10. Penalty for breach of confidentiality or privacy (Section 72).—Any person
who wrongfully secures access to any electronic record, book, register,
correspondence, information, document or other material in contravention of any
provisions of the I.T. Act or rule framed thereunder shall be punished with
imprisonment which may extend to two years or with fine upto one lakh rupees, or
with both. However, this provision would not apply to disclosure of personal
information of a person by a website by his/her e-mail service provider.
A new Section 72-A has been inserted by the Information Technology
(Amendment) Act, 2008 providing punishment for disclosure of information in
breach of lawful contract and securing access to any material containing personal
information with intent to cause wrongful loss to a person or wrongful gain by the
disclosure. The offence shall be punishable with imprisonment for a term which may
extend to three years, or with fine which may extend to five lakh, or with both.
11. Publishing Digital Signature Certificate false in certain particulars
(Section 73).—Publishing digital signature certificate false in certain particulars is a
cyber offence punishable under section 73 of the Act. The punishment may extend to
imprisonment upto two years, or with fine which may extend to one lakh rupees, or
with both.
It may be stated that provisions relating to acceptance of the Digital
Signature Certificate by the subscriber are contained in Section 41 of the I.T. Act
whereas the provisions relating to suspension of digital signature certificate are
enshrined in Section 37 of the Act.
The I.T. Act prohibits making available a Digital Signature Certificate with the
knowledge that—
(a) the Certifying Authority listed in the certificate has not issued it; or
(b) the subscriber listed in the certificate has not accepted it; or
(c) the certificate has been revoked or suspended.
12. Publishing Digital Signature Certificate for fraudulent purposes (Section
74).—This section provides that whoever knowingly creates, publishes or otherwise
makes available a Digital Signature Certificate for any fraudulent or unlawful
purpose or knowingly publishes or makes it available for any such purpose, commits
an offence under the I.T. Act and the offender may be punished with imprisonment
for a term which may extend to two years, or with fine which may extend to one lakh
rupees, or with both.
13. Compounding of Offences (Section 77-A).—The new section inserted in
the principal Act by the I.T. (Amendment) Act, 2008, provides for compounding of
offences under the Act by the court of competent jurisdiction provided they are not
punishable with imprisonment for life or imprisonment for a term exceeding three
years. However, the court shall not compound any offence where the accused by
reason of his previous conviction is liable to enhanced punishment or the accused is
charged for any socio-economic offence or the offence has been committed against a
child below 18 years of age or a woman.213
213 Soction 77(1) proviso.

Cyber Crimes 157
14. Offences with three years punishment to be bailable (Section 77-B).—The

new section added in the principal Act by the Amendment Act of 2008 provides that
the offences punishable under the Act upto three years imprisonment shall be
cognizable and bailable notwithstanding anything contained in the Code of Criminal
Procedure 1973.
Initially, the power to investigate offence under the Act was vested in a police
office not below the rank of Deputy Superintendent of Police vide Section 78 of the
Act, but this section has been amended by the I.T. (Amendment) Act, 2008 and now
this power vests in the Inspector of Police.214
It must, however, be stated that the primary objective of the Information
Technology Act, 2000 was to create an enabling environment for e-commerce,
certain omissions and commissions of criminals while using computers have not
been included. Besides, there are several offences having bearing on cyber arena are
also registered under the appropriate sections of the Indian Penal Code with legal
recognition of electronic records by the amendments made in several sections of the
IPC by the Information Technology Act, 2000.
The cases of cyber crimes and persons arrested under the Information
Technology Act, 2000 during the five year period 2003-2007 are shown in the table
given below :
214 Amended by Section 39 of the I.T. (Amendment) Act 2008 vv.e.f. Oct. 27, 2(X)9.
Cyber Crimes/Cases Registered and Persons Arrested under Information Technology

Act during 2004-20091
SI. Crime Heads Cases Reported Persons Arrested
No. 2004 2005 2006 2007 2009 2004 2005 2006 2007 2009
1. Tempering computer source 2 10 10 11 21 0 10 8 2 6

department
2. Hacking Computer Systems (i) 14 33 25 30 115 31 27 34 25 63
Loss/damage to computer
resource/utility
(ii) Hacking 12 41 34 46 118 1 14 29 23 44

3. Obscene publication/ 34 88 69 99 139 21 125 81 86 141
transmission in electronic form
4. Failure 0 1 0 2 3 0 0 0 1 06
(i) Of compliance/orders of
certifying authority
(ii) To assist to decoy or the 0 0 0 2 0 0 0 0 0 0
information in interception
by Government Agency
5. Unauthorised access/ attempt to 0 0 0 4 0 0 0 0 0 16

access of protected Computer
system
6. Obtaining Licence or Digital 0 0 0 11 01 0 0 0 11 01

Signature by misrepresen-
tation/suppression of fact
7. Publishing false digital Signature 0 0 0 0 01 0 0 0 0 0
certificate
8. Fraud Digital/Signature 0 1 1 3 04 0 3 0 3 06
9. Breach of confidentiality/ privacy 8 3 3 0 10 7 13 2 3 05
10. Others 0 0 0 0 01 0 0 0 0 0
11. Total 70 177 142 217 413 60 192 154 154 288
Investigation of Cyber Crimes

The power to investigate the offences under the Information Technology Act,
2000 has been conferred on the Controller or Certifying Authorities.215 The powers of
the Controller in this regard are similar to those of Income-tax authorities.
The power of the Controller relating to investigation of cyber crimes extends to
offences enumerated in Chapter IX of the Act.
Section 80 specifically lays down the investigation procedure to be followed by
Police Officers for investigating cyber crime under the Information Technology Act.
The provision contained in this section will have overriding effect, notwithstanding
anything inconsistent therewith contained in any other law for the time being in
force. This, in other words means that conflicting section of the Code of Criminal
Procedure, 1973 are not applicable in matters of investigation of cyber crimes under
the Act.
The offences committed under Sections 71 to 74 of I.T. Act are non-cognizable
215Section 28 of the Information Technology Act, 2000.

Cyber Crimes 159
as they are punishable with imprisonment upto two years.216

The police officer investigating cyber crimes under Section 80 of I.T. Act
should not be below the rank of Deputy Superintendent of Police.
Adjudicating Officer
The first authority that has jurisdiction to try offences enumerated in Chapter
IX of the I.T. Act is the Adjudicating Officer.217 The Central Government has been
empowered to appoint any officer not below the rank of a Director to the Government
of India or an equivalent officer of the State Government to be an Adjudicating
Officer.
The Adjudicating Officer shall, after giving the contravenor a reasonable
opportunity for making representation in the matter and if on such inquiry, he is
satisfied that the person has committed the contravention, impose such penalty or
award such compensation as he thinks fit in accordance with the provisions of the
Act.218
It should be noted that the satisfaction of the Adjudicating Officer as to the
contravention should be based on material facts brought before him during inquiry.
Section 46(3) stipulates that the Adjudicating Officer has to possess the such
experience in the field of Information Technology as also the legal or judicial
experience as may be prescribed by the Central Government.219
Where more than one Adjudicating Officers are appointed, their jurisdiction
shall be specified by the Central Government. Every Adjudicating Officer shall have
the powers of a civil court which are conferred on the Cyber Appellate Tribunal
under Section 58(2) of the I.T. Act. The proceeding before him are quasi-judicial
proceedings under Section 193 and Section 228 of the IP.C.
In course of Inquiry, the Adjudication Officer is empowered in respect of the
following matters ;—
(1) Summoning and enforcing attendance of persons;
(2) Compelling production of documents or electronic records;
(3) Receiving evidence;
(4) Issuing Commission;
(5) Giving ex-parte decisions;
(6) Dismissing the application.
Cyber Appellate Tribunal
Any person aggrieved by an order made by Controller or an Adjudicating
Officer under the I.T. Act, may prefer an appeal to a Cyber Appellate Tribunal
constituted under section 57 of the Act. The time-limit for filing such appeal is
216 As per Schedule 1 of Cr.P.C.

217 Section 46(1) of I.T. Act, 2000.
218 Section 46(2).
219Section 46(3).
45 days from the date of order. An endeavour shall be made by the Tribunal to
dispose of the appeal finally within six months from the date it is received by it.
International Perspective of Cyber Law
Cyber criminals pose a major threat to computer networks all around the world.
Therefore, efforts are being made to workout a Model Anti-Cyber. Criminal Law to
prevent and control cyber crime at global level. A Special Expert Working Group
meeting was convened in October, 1998 in Tokyo under the auspices, of the United
Nations to sort out legal problems involved in combating against cyber criminality.
The European Committee of Experts on Crime in Cyber-Space prepared two
Draft Conventions Cyber crimes in April, 2001 to work out strategies and fostering
international co-operation for tackling the problem of security against cyber crimes.220
In view of the expanding dimensions of cyber crimes, there is urgent need for a
model legislation to tackle the problem of growing incidence of these crimes. It
hardly needs to be stated that the criminal law must continue to evolve if it is to
adequately address to new developments in technology. It is true that the World
Intellectual Property Organisation (WIPO) finalised two treaties in 1996 which were
commonly known as "Internet Treaties" for countering the challenges posed by
internet but treaties talked only about the right of communication and did not contain
provisions on right of reproduction. Moreover, the treaties were neutral on the subject of
liability of Internet Service Providers (ISP's) and the issue was left to be decided by
the member nations through their legislative mechanism. In these circumstances, the
treaties were of little use to resolve the liability of ISP's which is a controversial legal
issue emerging from cyber space which is the result of the very nature of digital
networks.
The European community adopted the directives on electronic Commerce
containing set of rules clarifying the standards to be applied to the various online
intermediaries as a result of their involvement in illegal or infringing material put on
their Internet facilities by third parties.
A glance at the country-wise legal approach to cyber crimes would reveal that
many countries have adopted cyber law in their legal system to meet the challenges
against the Internet criminal activities. Countries like U.S., Canada, U.K., Australia,
Japan, Phillipines, Peru, Turkey, India etc. have updated their cyber law while others
have partially221 updated them.
United States Cyber Law
In United States, the first federal computer crime legislation was enacted in
1986 called the Computer Fraud and Abuse Act, 1986. Both, the States as well as the
Federal Government have their own cyber crime law. In States, the perpetrators of
cyber offences are prosecuted under the statute similar to the
California's Penal Code222 dealing with unauthorised access to computers, computer
systems or computer networks or the New York Computer Crime Law.223 Both these
statutes deal with tampering, interfering, damaging or unauthorised access of
computer data. The Federal Computer Crime Law, 1995 penalises the unauthorised
220Directive 2000/31/EC of the European Parliament and the Council dated June 8, 2000 on e-
commerce.
221 Notably, Brazil, China, Chile, Chezh Republic, Spain, Poland, Malaysia, Denmark
etc. have partially updated their cyber !aw.
222 Section 502 of Californian Penal Code as amended in 1997.
223 Article 156.00-50 of New York Penal Code, 1986.
Cyber Crimes 161
use of certain computers and alteration or destruction of the records contained

therein.
Australian Cyber Law
In Australia, Cyber Law was enacted in 2001 and the Act is called the "Cyber
Crime Act, 2001 which came into force on April 2, 2002. The cyber offences under
the Act are broadly classified into three major categories, namely,
(1) unauthorised access; (2) unauthorised modification of data,224 and (3) unauthorised
impairment of electronic communication.225 Besides, the Act also makes possession or
control of data with intent to commit a computer crime an offence punishable with
imprisonment upto three years. The production or supply of such data for committing
a cyber crime is also similarly punishable.
Japanese Cyber Law
Japan being a party to the international treaty on European Convention of Cyber
Crime designed to combat computer crime, has enacted two statutes for the
prevention and control of cyber offences. They are (1) Unauthorised Computer
Access Law, 1999, and (2) The Computer Crime Act.
The unauthorised Computer Access Law came into force w.e.f. February 3, 2000
to prohibit acts and prevent computer crimes that are committed through
telecommunication lines. It provides stringent penalty for unauthorised interference
with the telecommunication lines.
The Computer Code Act seeks to amend the Japan Penal Code to meet the new
challenges posed by Cyber Offences.
U.K. Computer Act
United Kingdom enacted its Computer Misuse Act in 1990 which was later
replaced by the Computer Act, 2006. The law mainly targets Denial of Service (Dos)
attackers and provides for punishment upto ten years imprisonment. It provides that
impairing of the operation of any computer, preventing access to any program or data
to computer and destructing the operation of any program on computer are crimes
punishable with imprisonment upto ten years and also, causing someone to do any or
all of the above crimes would be punishable upto two years imprisonment.
The stringent penal provisions of the Act have proved to be very effective in
preventing the menace of Dos which had a damaging effect on the computer users
prior to the enactment of this Act.
224 Unauthorised access to or modification of data is punishable with imprisonment

which may extend to two years.
225 Unauthorised impairment of electronic communications system is punishable with
imprisonment which may extend to ten years.
162 The French law of computer crimesand

Criminology is Penology
modelled on the European legislation
which provides foundation of legal rules that apply throughout the European
countries. The European
French'Computer Crime Directives
Law and legal framework for electronic signature and
e-commerce services were adopted by France from June 8, 2000.
There is a National Supervising Agency to regulate the implementation of the
Intellectual Property Rights violations committed through computer system and
internet. French Government has adopted the Rules framed by the Internet Co-
operation for Assigned Name and Numbers (ICANN) for the protection of domain
names of the online trading community.
Chinese Cyber Law
The Republic of China had enacted Regulations for protection of Software
under the Chinese Copyright Act, 1990 during the communist regime. However, in
view of the rapid developments in information technology and internet the
Government of China took control and management of the entire infrastructure of
online internet connectivity. Under its cyber law of 1997, China has established
information task forces to co-ordinate internet connectivity. Any connection to
internet has to go through the Ministry of Telecommunication and individual entities
are prohibited to establish, internet connections. The prospective ISP's (Internet
Service Providers) are to approach to the Government for issue for licence for
procuring internet service.
The Chinese Bureau of Public Security (BPS) has the authority to shut down
the internet service which is operating in violation of these regulations. ,The Bureau
may also impose a fine upto 15000 RMB on illegal operators of internet service
without a valid licence.
Mauritius Cyber Law
Mauritius has enacted the Information Technology (Miscellaneous Provisions)
Act, 1998 for protection and control of cyber crimes. Part II of the Act specially
deals with the computer related offences and penalties for them. Any unauthorised
access or illegal interception of computer service is punishable with fine not
exceeding one lakh rupees and a penal servitude upto 10 years.1
Section 15 of the Act, prohibits, making, publishing, showing or distributing
indecent photographs or pseudo-photographs of children on-line or on the net and it
is an offence punishable with imprisonment or/and confiscation of article or
apparatus used.
Sri Lanka's Cyber Crime Law
Sri Lanka adopted its Computer Crime Act, 2007 which primarily deals with
computer related offences and hacking. It provides that the police can seek the
assistance of computer experts in the investigation of cyber crimes. The Act makes
even an attempt to unauthorised access as a crime. Any activity which potentially
damages any computer, computer system or computer program, will be an offence
punishable under this Act.
Pakistan
Pakistan enacted the Prevention of Electronic Crime Act, 2007 on January 17,
2007 providing stringent punishment to those who steal, deny or destroy valuable
information available on electronic networks. Thereafter, in order to remove certain
deficiencies of the Act, a bill entitled Cyber Crime (Prevention of Electronic Crimes)
was laid before the National Assembly on September, 2007, but it invoked severe
criticism from all quarters being too drastic and draconian which they alleged, will
do more harm than good and had therefore, not yet been cleared by the National
i. Regulation 369-A of the Mauritius Cyber Act.
Cyber Crimes 163
Assembly.
Bangladesh Cyber Law
Bangladesh enacted its cyber Crime Act in 2004, which provides for stringent
punishment for on-line criminal activities.226 The computer networks were established
in Bangladesh for the first time in 1964 but the main frame installation had to be
closed in 1971 due to out break of war with Pakistan following liberation movement
in Bangladesh. However, it was restarted in 1975 after the country gained its
independence.
The Government of Bangladesh appointed an Expert Committee in June 1997 to
provide a legal framework for prevention and control of cyber crimes. The
Committee submitted its report in January, 1993 in which as may as 45
recommendations were made for a comprehensive legislation on cyber law. The
Government suggested certain changes in the said legislation which were duly
considered by the expert committee and it submitted its revised recommendations to
the Government in June 2002. Consequently, the Cyber Crime Act, 2004 was passed
to deal with cyber crimes and criminals.
An overview of the international perspective of law on prevention and control of
cyber crime makes it clear that the countries all around the world are concerned with
the growing menace. In the Indian context, though the Information Technology Act,
2000 has been enacted as a comprehensive legislation to deal with cyber offences, it
has no applicability in many situations. Looking to the International dimensions of
these crimes and jurisdictional problems between the countries as also the variations
in their cyber laws, the electronic transactions and liability issue for the acts executed
in cyber space still remains hazy227 and uncertain in the absence of an adequate global
cyber law.
226 Dr. Vishwanath Paranjape: Legal Dimensions of Cyber Crimes and Preventive Laws (2010) p.
205.
227 Jim Puzzanghere : US Law Makers Claimouring to Regulate Internet, San Jose Mercury
News, April 9, 1999.
Chapter XI
Sexual Offences
C symptom of social
was perhaps the first criminologist who comprehended crime as a
esare Beccaria
disease. This concept of crime led penologists to believe 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 peculiar categories of crime which do not respond to this hypothesis
favourably because of the pervasive tendency of human nature. Sex crime is
obviously one among such crimes which prevails in almost all societies from ages.
With the advance of science, civilization and culture, the complexities of life
have enormously multiplied. Modern mechanisation and urbanisation 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, rowdyism and vagrancy among youngsters. 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
this unhappy development, the incidence of, sex delinquency in the form of
unmarried motherhood, abortion, rape, kidnapping, enticement, abduction, adultery,
incest, indcent assault etc. has become too common.
A study of sexual offences in one of the American States reveals that almost 88
per cent of the school-going girls between the age of fourteen and eighteen had sex-
experience before attaining puberty. Another survey in U.S.A. concluded that in one
out of every five or ten marriages today the bride is already pregnant. Depicting the
picture of modern sexy-civilization in United States, the Life International of
October 23, 1961 rightly observed that "a couple goes for a date and wake up to find
they have been married although they
cannot remember why and where ...........228
Looking to the psychological aspect of sex indulgences, Dr. Albert Ellis has
expressed a view that he is against putting any ban on any type of sexual behaviour,
not even open prostitution by males or females. He observes that discouragement of
sex pleasures and dispensation of cohabitation as disgusting and revolting may lead
to neurotic loss of feeling and enjoyment in normal sex229 which may result into fatal
consequences. However, it would not be correct to subscribe to this view of Dr. Ellis
in the Indian setting.
Like any other western country, sex delinquency in India has also recorded
228 Quoted in Parpurnanand Varma's : Crime, Criminal and Convict, p. 107.

229 Albert Ellis : Sexual Beliefs And Customs, p. 278.
Sexual Offences 167
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.
Indian Perspective
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. But the
post-independence legislations on divorce, immoral traffic in women and children,
marriage and other enactments relating to personal laws have narrowed down the
scope of legitimate sex activities to such an extent that there has been an enormous
increase in sex crime in recent times. Considered from this standpoint, the
codification of Hindu personal law in 1956 may be treated as a retrograde step so far
sex-offences are concerned.1 It condemns all forms of sex indulgences excepting the
marital union of spouses as husband and wife. In result, there may be occasions when
a man might not be in a position to pacify the sex-gratification of his wife whom he
has accepted as his life partner. Conversely, the wife herself might not be in a
position to satisfy the sex urge of her husband. The reason for his dissatisfaction need
not necessarily be impotency alone but there may be several other reasons such as
temperamental differences, physical imbalance, disease, attitude of neglect or distrust
for each other, personal occupations or vices in any of the spouses or it may also be
due to family circumstances where opportunities for conjugal meetings may be
wanting. This is bound to cause sex frustration among the spouses, which in turn
results in violation of sex-codes leading to sex delinquency. Significantly, the
provisions of Mohammedan law as to marriage, dower and divorce seem to be more
elastic and permissive in this regard. The permissibility of four wives to a Muslim
husband, provisions of muta marriage and easy modes of talaq (divorce) are in fact
meant to mitigate illegal sex indulgence.
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
harnessed along correct lines, it is a great creative force in all walks of life.2 That
apart, sexual impulse affects all alike whether male or female, rich or poor, educated
or illiterate, men of high status or lower status. However, the intensity of sex-
emotion among individuals may vary depending on their personal traits and bio-
physical factors. Some persons may by nature be more sexy while others may be
relatively passive in response. This difference is due to the condition of gonad glands
which are more active in some individuals than in others. These variations in attitude
towards sexuality may also depend on physical, cultural or socio-economic
environment of individuals. Persons of high status, though actuated by sex-desire
may not have sufficient courage to spell it out due to the fear of losing their social
status
1. However, the author does not subscribe to this view.
2. Dr. Puran Batria : Sex & Crime in India (1992) p. 1.
whereas those who do not have any teal status in society may not hesitate to express
their sex-desire and indulge in sex-behaviour because they have no fear of losing their
status in society. Thus, 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 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.
Other forms of sex crime are rape,230 adultery,231 incest,232 outraging the modesty of a
woman,233 prostitution,234 sodomy,235 pornography,236 fornication,237 homosexuality,238
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.
Biologically also, sex is considered as a great analgesic. It cures the sick and
makes the healthy, healthier. The amount of harmonal activity that takes place during
sexual intercourse is phenomenal and feeds virtually every part of the body by
increasing circulation and supply of blood and nutrients to every area of the body.
Good sex life keeps one in good shape. It has therefore, been medically established
that a good sex life has a number of advantages over sexual frustration or self-
imposed sex restraints.
Causes of Sex Delinquency
Bio-scientists have opined that sex involvement though basically evil, is
necessary for procreation, physical fitness and mental satisfaction of mankind.239 Like
any other society, the Indian Society expects that sexual activities must be confined to
marital relationship and sex indulgence outside marriage wedlock is an offence
punishable under the penal law.240 Another notable feature regarding sexuality is that
chastity is stressed more on women than men.
Commenting on sexual behaviour of mankind Donald Taft observes that
sexuality being a biological phenomenon needs no specific training.241 The bio-
physical changes with the growth of human body automatically prepare men and
women for sex behaviour. As regards the futility of external medical appliances for
controlling procreation he observes that the knowledge of contraceptives is
unnecessary because that would remove a deterrent on immoral behaviour and people
would be free to indulge in sex delinquencies with impunity without the fear of
possible conception or birth. It must, however, be noted that the present moral
confusion and vanishing effect of religious sanctions has given rise to an
unprecedented increase in sex delinquency. Sex-crimes have now-a-days become so
common that people have lost all seriousness about them and they are looked upon as
230 Forcible enjoyment of sex with a person against her/his will (Sec. 375 IPC).
231 Voluntary sexual intercourse with a married woman without her husband's consent. (Sec. 497
IPC).
232 A sexual intercourse between two persons related to each other by consanguinity or
affinity within prohibited degree of relationship.
233An act done to or in the presence of a woman clearly suggestive of sex. (Sec. 354 IPC).
234 Practice of a woman/man who permits a man/woman to have sexual intercourse with
her/him for a settled price.
235 Sodomy is anus sexual intercourse, especially between males.
236 Explicit presentation of sexual activity in book, magazine, pamphlet or any other literature
form or films etc.
237 Sexual intercourse by mutual consent between a man and a woman who are free from bondage
of marriage.
238 A genital sexual relationship with a person of one's own sex.
239 Donald Taft—Criminology (4th Ed), p. 248.
240 The penal provisions for sexual offences are contained in different sections of the Indian Penal
Code, viz, Rape Sec. 375 ; Adultery, sec. 497 : Outraging the modesty of women, Sec. 354 ;
Kidnapping of minors for prostitution Sec. 372 ; Sodomy, Sec. 377, and Homo-Sexuality and
other unnatural offences, Sec. 377.
241 Taft : Criminology (4th Ed.) p. 262.
Sexual Offences 169
an ordinary mode of human behaviour.

The factors which are mainly responsible for steep rise in sex offences may
briefly be stated as follows :—
(1) 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. Therefore, variety being the
essence of enjoyment, men and women indulge in extra-marital relations which are
not always approved by society or law.
Dr. Freud, in his theory of criminal behaviour has explained sexual criminality in
terms of functional deviations and mental conflicts in the personality of individuals.
According to him, id generates sex urge in a person yet the force of ego and super-ego
within him makes him conscious that only the righteous means to fulfil this desire
would project his personality and any deviation from the accepted norms would
damage his reputation. As such, it is the force of self-consciousness (ego) and self-
criticism (super-ego) which keeps most persons on the right path. However, those who
lack ego and super-ego generally tend to indulge in* extra-marital sex-relations.
(2) The institution of religion which was once regarded as a potential weapon of
social control has lost its force in modem 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. The craze for comforts and
luxurious life has undermined the glory of past traditional culture which has seriously
jeopardised the compactness of Indian life. The legislative measures such as the
Special Marriage Act, 1954 ; the Hindu Marriage Act, 1955 ; etc. have contributed to
disrupt the unity of joint Hindu family. Consequently, morality has lost its
significance in modern sexy civilization. Slackness in domestic discipline offers
frequent opportunities for judicial separation, divorce and marital disputes. This
tendency is more conspicuous among the education elites. It is significant to note that
uneducated and illiterate masses still have an unshaken faith in the institution of
family and integrity of martial life. This accounts for the growing incidence of sexual
crimes in urban areas as compared with the rural regions.
(3) Industrial development in India has brought in its wake a radical change in
the pattern of Indian society. The institution of family has disintegrated. The modern
Indian woman no longer confines herself within the precincts of four walls of her
house but participates in outdoor activities shoulder to shoulder with men. As a result
of this change in the attitude of women, the housewife is no longer content with a
passive role in her domestic life. She does not meekly submit herself to the
commands of her husband but prefers to remain only a companion to him asserting
her independent existence in every walk of life. As a result of this, the integrity of
marital life is gradually vanishing. Closer association of women with men,
particularly at work places, provides occasion for intimacy which creates a
background for sex delinquency. Despite the protection extended to worker in work
places by the Supreme Court through its guidelines laid down in Vishaka's cases, the
sexual harassment of women in jobs and elsewhere have not receded.
(4) Urbanisation due to industrial progress of the country has given rise to
several new problems in human life. Parents have to stay away from their home for a
considerable long time during working hours. This results into neglect of children and
lack of parental control over them. The youngsters, therefore, tend to become more
indisciplined, reckless, repulsive and irresponsible. The tendency of hooliganism,
rowdyism and attitude of indifference among the youngsters is essentially because of
the impact of urbanisation and industrialisation which has necessitated men and
women to stay away from their homes in pursuit of work and employment, thus
leaving little time to be spared for proper care of their wards.
(5) Referring to sex deviants, Donald Taft rightly observed that changes in the
habits of dress and undress, sex themes in literature, dramas, obscenity in
advertisements, movies, television and cinemas may stimulate sexual impulse in
varying degrees. So far India is concerned, the impact of western civilization on
Indian life has been so great that people have developed a craze for imitating western
ways in every walk of life. In result, Indian people have become more sexy than their
ancestors. The peculiar costumes and clothings of modern girls and women invite
lustful looks of sexy persons. The cosmetics used by modem women and the
fragrance of scent, essence, perfumes and other cosmetics also stimulate sex
sensation. To add to the misery, the impact of television and cinema is so great on the
younger people that they learn new ways of flirting, romance and courtship from
these films and try to practise them in their real life.242 Acquaintances between the
male and female adolescents leads to intimacy which finally turns into courtship and
in a fit of excitement and irresistible sex-desire, the spouses momentarily forget
themselves and indulge into acts which they subsequently realise to be sex crimes.243
Once having experienced the pleasure of sexual act, they are hardly able to resist their
sex-urge and repeat it times again fully knowing about the illegality and gravity of the
consequences. This finally turns them recidivists. Commenting on this aspect of
sexuality. Edwin Sutherland observed that out of all the crimes, sex crime tops the list
so far as recidivism is concerned. The story does not end here. One single
cohabitation is enough to involve both spouses into further criminality. Thus, if the
illicit intercourse results into pregnancy, that woman in order to conceal her act and to
get rid of the conceived child, would resort to illegal abortion which itself is a crime.
However, due to inadvertence when the conceived child is allowed to take birth, it
again creates complications as it results into unmarried motherhood. This further
raises the problem of legitimacy of the child so born.
242Blumer, H. and Hauser, P. M. : Movies, Delinquency and Crime, p. 143.

243Burgess. E. W. : Sociological Aspects of the Sex Life of the Unmarried Adult, p. 144.
It is, therefore, often said that the Sexual Offences

sex crime apart from being a single offence,171is
occasionally followed by a series of other correlated offences.
(6) The influence of intoxicants such as liquor, drugs etc., also accounts for
the incidence of sex crimes. Consumption of wine and liquor has become a part of
habit with most of the persons. Under the influence of intoxication, a man becomes
wild and rash. He becomes emotionally excited and forgetting all normal restraints,
becomes aggressive and commits sex crime recklessly, though he may repent for it
after he resumes normal sense. Even fathers are known to have raped their daughters
or daughter-in-laws under the influence of intoxication.
(7) The satisfaction of sex impulse is an important biological need of human
personality. It is in fact a psycho-biological urge which needs to be pacified through
legitimate means. It is for this reason that early marriages acted as a safety valve to
put a check on sex crimes because they offered legitimate opportunities to spouses to
satisfy their sex desire and refrain from forbidden sex indulgences. Commenting on
the desirability of marriage as an appropriate institution to suppress sex delinquency,
Mrs. Ruth Shonle Cavan observed that marriage shapes the personal life of man and
fulfils his physio-biological needs which, if otherwise left unfulfilled, would drag
him into sex delinquency.
(8) Family unhappiness due to wife being frigid or husband being weak in sex
act may also divert the spouses to prohibited sex conduct. Incompatibilities with
regard to physique, temperament, habits etc. may disturb the marital life of life-
partners which may lead either of them or both to promiscuity as and when they get
opportunity. At times, physical, complexion, features of spouses may also be the
cause of dissatisfaction leading to extra-marital sex indulgences.
(9) It is significant to note that intensity of sex desire among persons is never
uniform. It varies from person to person depending on his cultural, group and social
environment. There are certain persons who on account of their emotional instability
and impulsiveness, are not able to foresee the dangers of their sex involvements and
therefore, repeat them without bothering about the evil consequences. Those living
in broken homes, slums, crowded localities or vicious inhabitation are easily prone
to sex delinquency and generally become sexual psychopaths. These persons are
positive danger, particularly to women and children who are usually the victims of
sex crime. Dr. Paripumanand has rightly pointed out that bad conditions of living
actually serve as training ground for the children and adolescents to learn sexual
behaviour. The innocent children who indulge in sex ac!" without knowing that what
they are doing is a crime and at a later stage when they grow older they turn to be
sexual psychopaths, frequently resorting to sex crime on account of their irresistible
passion.
(10) In context of sex crimes, a word must also be said about obscenity which
provides a fertile ground for sex-stimulation. The definition of the word 'obscene'
suggests that any book, pamphlet, writing, article, drawing, figure or painting or any
such material shall be deemed to be obscene if it stimulates sex and is likely to
pervert the minds of those who read it or see it.1
The test whether a particular matter is obscene or not, depends on the
interpretation of section 292 IPC and not on expert evidence.244 Thus, a passage
contained in a serious work giving advice to married men on how to regulate sexual
side of life was held not to be obscene245 although it contained detailed description of
244 Ran jit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.

245Emperor v. Hamam Das & another, (1947) 34 Lahore, 387.
1. Sec. 292 IPC.
sex act. In the historic Hicklin's case,246 the Court observed that the test for deciding
obscenity is whether the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall.
In Samresh Bose v. Amol Mitra,247 the Supreme Court drew a distinction between
obscenity and vulgarity and held that a vulgar writing is not necessarily obscene.
Vulgarity arouses a feeling of disgust and repulsion and also boredom but does not
have effect of depraving, debasing and corrupting the morals of any reader which
obscenity does. The test is objective. In the instant case, the publication was not held
to be obscene though it could be called vulgar.
(11) One more reason for growing incidence of sex crime in India is that
majority of sex offenders get acquitted in the absence of eye-witnesses as these
offences are always committed in desolate lonely places. Besides fear, awe and
humiliation also dissuades woman, who is a victim of sex crime from approaching
the law court and even if they dare to do so, they feel awkward in replying to
questions relating to the details of sex act. The medical experts also avoid giving a
definite opinion about the sexual intercourse having been done by the accused in
order to play safe. The victimised woman seldom raises hue and cry against the
culprit.
In brief, "the trauma of the incident of sex crime, particularly the offence of
rape, followed by the trauma of having to narrate the facts to the police followed by
the trauma of undergoing medical examination of the most intimate organs of the
body, are enough discouragements to a victim. Added to this, is the trauma of being
subjected to rigid cross-examination in the court-room".248 If the victim happens to be
a child or a teenage girl, she may not be able to unfold the story fully and freely
before the court, when confronted with the offender.
Remedial Measures
Dr. Sigmond Freud, an expert in psychiatry has given a very convincing
exposition of sexual psychopaths and suggested that these delinquents need medical
treatment rather than penal servitude. Dr. Philthrop, the famous British writer, while
explaining the psychology of sex delinquents has also expressed similar views. He
suggests that if the psychology and the mental frame of the sex offender is not
properly attended to, mere punishment would hardly serve any useful purpose and he
would become more dangerous to society. Therefore, the object should be to cure the
offender's weakness of mind which is responsible for depriving him of his vitality to
resist the force of circumstances and fall a prey to sex desire. In short, the adequate
remedy for sex delinquency is to subject sex delinquents to socio-medical treatment
through a proper follow-up method under the control and supervision of competent
psychiatrists.
The following remedial measures may further be suggested for the prevention
of sex delinquency—
(1) The marriage between the spouses who are related by blood must be
discouraged. The reason being that the off-springs of such union are often
degenerated and have little appreciation for morality. Consequently, they fall an easy
246 (1868) QB 360.

247AIR 1986 SC 967.
248 Quoted from LAW INDIA Vol I No. 4 (Oct.—Dec. 1992)—a Quarterly News Letter
published by the Indian Law Institute, Delhi.
Sexual Offences 173
prey to sex crime. It is mainly for this reason that most of the personal laws forbid
marriage between those who are related by blood and fall within the prohibited
degrees of relationship. Likewise, marriage on account of consanguinity or affinity is
considered to be bcitil (void) under the Mohammedan law. Even the English law, as
early as 1250 A.D., permitted marriage only between such persons who were related
beyond three cousins. Henry VIII during his reign imposed a restriction on marrying
even the wife's sister with a view to tightening up matrimonial discipline. The object
was to inculcate a sense of morality and strengthen matrimonial discipline among
the people.
(2) Unfortunately, the International Year for Women observed in 1975 did not
consider the problem of sex offences and criminality against women. In India, the
Law Commission in its 71st Report suggested that the existing divorce laws should
be suitably amended so as to make irretrievable break-down of marriage as a good
ground for the grant of decree of divorce under the Hindu Marriage Act, 1955. It is
hoped that the Women's Commission set up by the Government under the National
Women's Commission Act, 1990, would initiate concrete measures to prevent
victimisation of women and reduce the incidence of sex crimes.
(3) Parents should keep their wards well under control and pre-wam them of
the possible dangers involved in illegal sexual acts. No sooner a child approaches the
age of adolescence he should be explained the various aspects of sexual life and
consequences flowing there from. It should be noted that the psychology of
adolescents at this difficult age is very precarious and they are unable to resist their
sex urge if they are placed in surroundings conducive to sex crime. If they have the
fore-knowledge of the possible dangers and evil consequences which are likely to
flow from their momentary sex indulgence, they would certainly refrain from such
acts. This is particularly necessary in case of adolescent girls so that they are
prevented from landing into a life of shame and disgrace. Commenting on this point
Dr. Pciripurmnand Verma observed : "the man's role in sexuality is a single act—the
disposition of sperm where it can fertilise an ovum. Woman's role is more time
taking and consists of triple acts in which accepting sperm comes first, pregnancy
and child-birth,
second, and the lactation (nursing) the third .......... By man's completing his sexual
activity, woman's is merely initiated and there are two sound ways for the girl to deal
with a young man who is insistent ; she can marry him or she can say "No"249.
(4) Some criminologists suggest that imparting sex education and providing
correct knowledge about sex to the young persons would help them
to understand sex better than get addicted to abberrations which border on

crime. The confusion prevailing about the sex values among various sections of
society as also the lack of properly trained or qualified staff for the purpose may,
however, pose practical difficulties in imparting sex education to youngesters at
school level. Then again, the question as to at what exact age or stage the
'sex^gcfucation should be introduced and the curriculum of teaching the subject
are'a^o some of the debatable issues connected with this subject.
It has been generally accepted that the primary object of sex education should
be to help young boys and girls to acquire healthy understanding of sex relations and
correct role of man and woman so that they can better adjust as husbands and wives
in future and may maintain harmonious inter-personal relations between sexes. At
the same time, they may also become aware of the evils of sex perversion including
prostitution, homosexuality, illegitimacy, general diseases. AIDS, etc., and may be
properly prepared to play their role as a spouse, parent and citizen effectively when
they enter marital life. Needless to say that family can perhaps play a more effective
role in imparting sex education to their children in home in a more informal manner,
providing adequate opportunities to their wards to develop their personality and lead
a normal, healthy and aesthetic sex-life.
(5) Much of the sex criminality may be prevented by the initiative of women
themselves. They should guard against providing any opportunity to the potential
sex offender. For this purpose, minor and young girls should be properly escorted
and they should not be entrusted to the care of servants or strangers. Women should
take care that they are not misled by fake sadhus and tantriks and fall a prey to their
evil designs. More recently, providing karate training to young girls and women is
being emphasised so as to train them for self-defence and protection against vicious
offenders. It is indeed a welcome step.
(6) Perhaps, keeping people engaged in work seems to oe the best solution for
mitigation of sex crime. Particularly, in the modern sexy civilization where living
conditions are quite congenial to sexual offences, it is necessary to keep the youths
fully engaged in work so that there is no time left for them to waste their energy on
perverse sex-thoughts. Adolescents who lead an idle life are apt to become sexual
psychopaths. It is, therefore, an established fact that a busy life with meaningful
work can mitigate sex crime to a considerable extent.
(7) Sex delinquency among prisoners presents a special problem for the
prison authorities. Quite a large number of prisoners are sex psychopaths for the
reason that they are completely deprived of marital life during their term of
imprisonment.250 Mrs. Ruth Shonle Cavan and Eugene S. Zamans251 made an intensive
investigation on sex crimes in prisons and pointed out that complete denial of marital
life to a prisoner in jail is most unjust and inhuman as it has an adverse effect on his
personality due to non-fulfilment of one of the basic urges of life. Consequently, sex
desire in him often makes him obstinate and indifferent towards the jail authorities
and at times he even resorts to unnatural
250 Ibid., p. 142.

251Mrs. Ruth Shonle Cavan was a Professor of Sociology, Rockford College, Illinos (U.S.A.) and
Eugene S. Zamans was the Director of John Howard Association in Chicago.
Sexual Offences 175
offences such as homosexuality or sodomy in an attempt to pacify his sex impulse.

With a view to reducing sex tension among prisoners, some progressive
countries have recently permitted private conjugal visits to their prisoners at regular
intervals under the supervision of jail authorities. During these visits the spouses are
allowed conjugal meetings in complete privacy. The period of such visits, generally,
varies, from half-an hour to two hours in different countries. However, this privilege
is not extended to women prisoners for the reasons of social security and possibility
of their getting pregnant and giving birth to a child which would add to the problems
of prison. In India such facilities are not considered compatible with the accepted
modes of the Indian life as it lays undue emphasis on the satisfaction of a baser urge
of human being. However, in Uttar Pradesh, the system of 'ticket on leave' has been
introduced for prisoners in 1951 with a view to enabling the long termers to visit
their families at regular intervals. It serves two main purposes. Firstly, it offers an
opportunity to the prisoners to pacify their sex-impulse thus making them less
violent and responsive to prison discipline. Secondly, it greatly helps in
rehabilitation of prisoners not only during their jail-term but even after their release
from the prison.
Many States in India allow their prisoners the benefit of furlough under the
Rules framed under the Prisons Act, 1894, with a view to enabling the inmate to
have access to his family and social life which certainly helps in mitigating the
rigours of prison life. Perhaps Sweden is the most liberal country so far this facility
to prison inmates is concerned. It allows 30 to 50 minutes conjugal visit to its
prisoners on Sundays. It is submitted that greater emphasis on parole and probation
may also serve the same purpose without giving expression to this bio-physical urge
of prison inmates.
(8) Another significant aspect of sex crime is the psychology of adolescent
girls at the time of puberty and menstruation when they are undergoing a biological
change in their physical features. This period is particularly difficult for girls. It
roughly commences from the onset of menstruation which signifies their transition
from childhood to adolescence. At this tender age girls mostly get mentally disturbed
and need to be told that the physio-biological changes in them are not unusual or
abnormal and they should take them as a normal phenomenon of life. This is a stage
when they should be carefully looked after. The boys, however, attain maturity at a
comparatively later age than the girls. If the parents take proper care of their children
at this 'difficult age', many problems relating to sex delinquency can be timely
eliminated. Young girls in particular, should be sensitised about the possible dangers
of illegal sex indulgences.
(9) Active vigilance by the police particularly, in busy streets, markets, railway
stations, bus-stands, schools, colleges, cinema houses, public gardens etc. is
necessary to keep the sex offenders away. Those indulging in rowdyism and eve-
teasing should be sternly dealt with. Strict vigil of the police in prostitution dens and
pimps and procurers who indulge in kidnapping or traffiking in innocent girls and
women for immoral purpose, may also help in preventing sex offences. During
interrogation, female victims of sex offence should not be subjected to repeated
awkward questioning by Afferent police
officials and their identity should not be disclosed to public or press.
The police must take action against goondas and loafers under the preventive
laws and special squads may be set up to identify sensitive areas. Those giving
information regarding sex offence or offender must be duly protected. Special
Women Police squads may also be pressed into service for apprehending sex
offenders and women who are actively involved in this heinous crime.
(10) Alcoholism is also one of the potential causes of sex crimes. It is a vice
which weakens the character and impairs the faculties of mind and body. Under the
influence of the intoxicants, a person loses his self-control and he may indulge into
sex act even with his daughter, daughter-in-law or any other woman. It is therefore,
necessary to eradicate this menace by strict regulatory measures. Drinking in public
should be made a cognizable offence and the number of bars and liquor houses
should be limited by adequate licensing.
(11) The five main agencies of professionals which are required to deal with
sex crime victims are the police, doctors, lawyers, Magistrates and the Rescue Home
officials. They must actively cooperate with each other while handling the sex
offenders.
(12) The existing law relating to sexual offences such as rape, adultery,
abortion, obscenity etc., has become outdated and needs to be suitably amended. It
has rightly been said that rape is a legal technicality inasmuch as it is nothing but
passive resistance on the part of female victim against the sexual act of man. During
1970's the public opinion in India favoured legislation for abortion hence the law of
abortion was suitably amended252 with a view to provide relief to saving unmarried
mothers and women who have fallen a prey to sex crime and offer them an
opportunity to rehabilitate themselves in society. It must, however, be mentioned that
liberalised abortion law should be used with utmost caution as the sexual
psychopaths, particularly the delinquent women, may use it as an easy way to escape
penal consequences for their sex indulgence and this may increase sex crime.
As regards adultery as an offence under Section 497 of the Indian Penal Code,
there is a proposal to extend the purview of this section to include an adulterous wife
to be punished as a co-accused. The proposal was first mooted out in the
recommendations of the Committee on Reforms of Criminal Justice System in 2003.
As an adulterous relationship cannot take place without the consent of the married
woman, it is highly discriminatory to hold only the man guilty of the offence without
making the adulterous woman liable for her infidelity.
The Forum against oppression of women has, however, strongly opposed the
proposed change in the law relating to adultery and even suggested decriminalisation
of adultery. In their view, having more than one relationship is not a crime.
According to them, the idea that adultery is crime is archaic and is deep-rooted in the
age-old thinking that woman is a property that a husband owns, and this perception
has now become obsolete and o”,t-dated. Going a step further, the noted theatre
person Mahabanoo Mody Kotwal who is known to have staged over 100 stage shows
Vagina Monologues in India, holds that "State should have no say in who one
chooses to sleep with." Instead, what it should do is to arrange free counselling
centres for those indulging in adulterous relationships.253
The Indian Penal Code recognises eight major forms of sex offences which are
punishable under the law : They are :
(1) Rape (Sec. 375).
(2) Intercourse by a man with his wife during separation (Sec. 376-A).
(3) Intercourse by a public servant with woman in his custody (Sec. 376-B).
252 Abortion has been legalised in India by the Medical Termination of Pregnancy Act, 1971.
253 Hindustan Times, December 22, 2008.
Sexual Offences 177
(4) Intercourse by Superintendent of Jail, Remand Home etc. (Sec.

376-C). '
,(5) Intercourse by any member of the management or staff of a hospital with
any woman in that hospital (Sec. 376-D).
(6) Assault or criminal force to women with intent to outrage her modesty
(Sec. 354).
(7) Selling or buying minors for purposes of prostitution (Sections 372 and
373).
(8) Unnatural offences such as carnal intercourse against the order of nature
with any man, woman or animal (Sec. 377).
Besides the above offences, incest and homosexuality are also crimes against
sex in India.
Incest
Incest is sexual relation or intercourse between persons so related by kindred
affinity that legal marriage cannot take place between them. Incest was punishable
with death in England in 1650. Subsequently, it was punishable with three to seven
years penal servitude under the Incest Act, 1908. The consenting female was liable
to same term of sentence. In Scotland, incest was punishable as an offence under the
Incest Act, 1887. Justifying consensual incestuous behaviour between two
consenting heterosexual adults as an offence, the Scottish Law Commission in its
report of 1981 observed that it causes psychological harm not only to the actual
participants but to other members of the family, either at the time of incident or later.
Thus, incest not only undermines the family institution but also ultimately causes
'injury' to it.
Highlighting the dangerous repercussions of consensual incest Jennifer Temkin
remarked that, "incest started in younger age may continue into adulthood. Most of
the women who are abused during their childhood, find it difficult to extricate
themselves from such relationship owing to their dependence—emotional,
economical or physical, on their families. Further, the abuses may resort to all the
familial, discreet, exploitative and manipulative devises at their command to 'exploit'
the abused ones to continue the consensual incestrous relationship.254
In India, however, incest though a prohibited act under the Hindu Law, is more
or less common among some of the tribals, particularly the Gonds of Bastar in
Madhya Pradesh. The reason being that while 'sex' means 'pleasure' to the civilised
people, for tribal Gonds, it is 'not merely a pleasure, but also a duty to its community
as also to the super divinely power that has created life'.
Surprisingly, the Indian Penal Code does not provide incest as a distinct
offence. Although incestuous relationship can be brought indirectly within the
purview of IPC only if it amounts to 'child-rape' when the victim of incest is below
16 years of age or 'adultery' when the willing female partner to incestuous sexual
intercourse is married to someone. However, the Fifteenth Law Commission of India
in its 172nd Report of the year 2000 expressed great concern for sexual violence
against children within their own families by near relative or any other person being
in a position of trust or authority, towards his victim, and recommended inclusion of
'incest' as an offence in the Penal Code. The Law Commission, inter alia, observed
:—
"If the sexual assault is committed by a person in a position of trust
254 Jennifer Temkin : "Do we need the Crime of Incest?" (1991) 44 CLP 185.
or authority towards the person assaulted he/she shall be punished

with RI for a term which shall not be less than ten years but which
may extend to life imprisonment and shall also be liable to fine."
As rightly pointed out by Professor K.I. Vibhute, the aforesaid proposal suffers
from two deficiencies. Firstly, it will not include consensual incestuous act between
two consenting 'near-relatives' and secondly, it does not specify the categories of so
called 'near-relatives' for the purpose of sexual assaults.1
Be that as it may, it is high time when the Parliament should take a serious note
of this omission and make incest as an offence under the Indian Penal Code.
Homosexuals
The homosexual may be either a passive individual who assumes the role of
female, regardless of his true-sex or he (or she) may adopt the active role of the pair.
In either case, they go to the extremes to stimulate the roles they are by their nature
or conditions to play.2 Homosexuality between adults is no longer an offence in
England, West Germany, Norway and several other western countries provided it is
not done in a public place. In India it is, however, punishable under Sec. 377 of the
Indian Penal Code.
Contraceptives—A Boon to Sex Offenders :
It may not be out of place to mention here that the family planning techniques
which are being presently used to control birth-rate are indirectly contributing to sex
delinquency. The oral contraceptives such as birth-control pills and loop insertions
are undoubtedly aimed at controlling population growth by limiting birth-rate. But
these devices serve as a boon to sex offenders who carry on their activities without
the fear of being detected with the application of these methods.3 These anti-birth
devices also help them to avoid conception or child-birth which would otherwise be
a cause of shame and disgrace for them. Thus, it would be seen that although
statistically sex crime may not record an upward trend the expansion of family-
planning programme
1. K.I. Vibhute : INCEST—A Blissful or Miserable Omission in IPC of 1860; 44 JILI (2002) p.
92.
2. Barnes and Teeters : New Horizons in Criminology, p. 100.
3. Taft Donald : 'Criminology' (4th Ed.), p. 263.
contributes indirectly to shield this menace and quite a large number of sex offences
escape detection through the use of these contraceptives.
Law Relating to Abortion in India
The protection of law to human life also extends to an unborn child in mother's
womb. Causing miscarriage with or without consent of the woman is an offence
under Sections 312 and 313 of IPC respectively. Section 312 requires two elements
to be satisfied for the offence of miscarriage, namely, (i) it should not have been
caused voluntarily; and (ii) it should not have been caused in good faith for the
purpose of saving the life of the woman.
Although the word 'abortion' has not been used in the aforesaid sections but the
word 'miscarriage' technically speaking refers to abortion which means expulsion of
the embryo—foetus at any time before it attains full growth.
Miscarriage may be caused at two different stages, that is, when a woman is
'with child' or she is 'quick with child'. A woman is considered 'with child' as soon as
gestation begins, and she is said to be 'quick with child' when she feels the motion of
child in her womb. In other words, quickening is a perception by the mother that
Sexual Offences 179
movement of the foetus has started. Therefore, it obviously indicates an advanced

stage of pregnancy. The punishment of these two offences under Sections 312 and
313 respectively also varies. The former is punishable with imprisonment which may
extend to seven years while in the latter case, the punishment may extend upto ten
years or imprisonment for life with or without fine.
When an act done with intent to cause miscarriage of woman with her consent
and it results into her death, it is an offence punishable under section 314 of IPC upto
ten years' imprisonment, and if the act was done without the consent of the woman, it
is punishable with life imprisonment.
Section 315 further provides that an act done with intent to prevent a child
being born alive or to cause it to die after birth is punishable with imprisonment
which may extend to 10 years with or without fine. An act of causing death of
unborn child at the advanced stage of pregnancy ('quick with mother' stage) amounts
to culpable homicide and is punishable upto ten years imprisonment with or without
fine as provided in Section 316 IPC.
Medical Termination of Pregnancy Act, 1971
In order to extend protection to women against illegal abortions, the Medical
Termination of Pregnancy Act, 1971 has been enacted with the following objectives
:—
(i) Abortion will be legal as a measure of health where there is a danger to
the life or risk to physical or mental health of a woman; or
(ii) On humanitarian grounds, such as when pregnancy is caused as a result
of sex offence or intercourse with lunatic woman; or
(iii) Eugenic grounds, when there is a substantial risk that the child, if born,
would suffer from deformities and disease.
The Act, however, does not permit termination of pregnancy after 20 weeks.
Again, no pregnancy can be permitted without the consent of the woman. Section 4
of the Act further provides that the pregnancy must be
terminated in a Government hospital or a place approved by the Government for the
purpose.
Section 8 extends protection to medical practitioners for acts done by them
under the Act. Any wilful failure of the compliance of any provision of the Act or
rules made thereunder shall be punishable with fine which may extend to one
thousand rupees.
The Medical Termination of Pregnancy Act, 1971 (MTPA) is no doubt a
landmark legislation in the history of post-independent social legislations in India.
Since abortion has been liberalised in quite a wide range of circumstances, it has
come to the rescue of girls and unmarried women who unfortunately fell a victim to
sex crime and became pregnant. They are thus saved from the stigma of 'unmarried-
motherhood'.
The Pre-natal Diagnostic Techniques Act, 1994
The Pre-Natal Diagnostic Techniques Act, 1994 was enacted to prohibit sex-
selection techniques and its advertisement throughout the country. A writ petition
was filed1 challenging the correctness of the title name of the Act which was later
withdrawn on 14th February, 2003 consequent to the Act having been amended and
named as the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994. The amended Act requires the Union and the State
Governments to submit their quarterly reports to the Central Supervisory Board on
the implementation and working of the Act and the rules framed thereunder. The Act
provides punishment for medical professionals practising foeticide and sex
determination.
The Problem of Prostitution
Any discussion on sex crime without reference to the problem of prostitution
shall be incomplete. Prostitution as a menace is essentially an outcome of sex
delinquency. As rightly observed by Donald Taft, "our attitude towards prostitution
varies from approval through acceptance and tolerance to violent opposition." To
quote him again, "whenever the institution of marriage weakened, prostitution
declined because sex gratification could be obtained without payment. Thus,
prostitution in a way is an index to morality." In India with the declining morality
and impact of western culture the attitude of people towards prostitution has
considerably softened and it has been accepted an inevitable evil for maintaining the
general moral discipline in the community. In spite of repressive policies and
regulatory measures on prostitution as an organised crime, the institution still
survives as a regular profession as it offers unlimited opportunity for sex
gratification, monetary rewards to prostitutes and pimps for reasons of promiscuity.
However, one remarkable feature of modem reforms on prostitution is that it has
now been possible to rehabilitate the prostitutes to normal life. This was not possible
three or four decades ago because of the stigma attached to this profession. Many
innocent girls and women who fall victim to this dubious profession can now be
saved from leading a life of immorality through the process of rehabilitation. Social
service agencies for rehabilitation of neglected and victimised women, girls and
children are operating throughout the country.
Indian history reveals that prostitution has been an age-old practice in this
country. The Mourya period is well-known for its State-regulated prostitution. An
analysis of the forces behind the causes of prostitution shows that nearly sixty per
cent of the prostitutes embrace this profession due to poverty while forty per cent
accept it due to hereditary influences or the force of circumstances. Besides sex
gratification, these circumstantial causes include disturbed domestic life, mutual
quarrels, cruelty and running away from home due to the fear of punishment and
displeasure of members of the family. Though effective provisions exist under the
Indian Penal Code for suppressing prostitution, it has not been possible to wipe it out
completely because of its peculiar nature. There are specific provisions in the Indian
Penal Code, which seek to discourage prostitution. They are as follows :—
Section 361, I.P.C.—"Whoever takes or entices any minor under sixteen
years of age if male, or under eighteen years of age, if a female, or any person
of unsound mind, out of the keeping of the lawful guardian of such minor or
person of unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship."
Section 362, I.P.C.—"Whoever by force compels, or by any deceitful means
induces any person to go from any place is said to abduct the person."
Section 372, I.P.C.—"Whoever sells, lets or hires, or otherwise disposes off
any person under the age of eighteen years with intent that such person shall at
any age be employed or used for the purpose of prostitution or illicit intercourse
with any person or for any unlawful and immoral purpose, or knowing it to be
likely that such person will at any age be employed or used for any such
purpose, shall be punished with imprisonment of either description for a term
Sexual Offences 181

which may extend to ten years, and shall also be liable to fine."
Section 373, I.P.C.—"Whoever buys, hires or otherwise obtains possession
of any person under the age of eighteen years with intent that such person shall
at any age be employed or used for the prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or knowing it to be likely
that such person will at any age be employed or used for any such purpose,
shall be punished with imprisonment of either description for a term which may
extend to ten years and also be liable to fine."
Section 498, I.P.C.—"Whoever takes or entices any woman who is and
whom he knows or has reason to believe to be the wife of any other man from
that man, or from any person having the care of her on behalf of that man, with
intent that she may have illicit intercourse with any person or conceals or
detains with that intent any such woman, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine or
with both."
Most criminologists have projected prostitution as a woman's characteristic
crime which enables her to earn wealth and status. But as Prof. Wootton puts it, each
act of prostitution requires male partner too. Therefore, it is erroneous to exclude
man from the purview of this crime although it has
been accenuated by the growth of woman's sex freedom in modem time. At present,
there are nearly one lakh known prostitutes in India but they have been deprived a
good deal of their trade by the educated call-girls. Now-a-days exchange of wife and
marriage by 'hiring' is becoming a common menace among the so-called elites of
metropolitan cities which is destroying the social fabric of the Indian society.
Prostitutes can be male or female but more than 90% of them are females
providing sexual pleasure by working in streets (20%) massage parlor (15%),
brothels (20%), bars (10%), hotels (10%) or as call girls (15%). Male prostitutes are
usually homosexuals in the age group of 14 to 18 years. Many prostitutes have pimps
who usually recruit newcomers into the life of a prostitute and they share the earning
of the prostitute.
Besides the provisions of the Indian Penal Code, the Immoral Traffic
(Prevention) Act, 1956 has also been enacted to suppress the menace of prostitution.
The Immoral Traffic (Prevention) Act, 1956
Among all the professions in the world of human beings, prostitution is perhaps
the oldest and universally rampant. The need for sexual gratification of sexual urge
has impelled men and women of all ages all over the world to exploit either sex.
With the growing degradation of moral values, the world opinion in the New York
Convention of May 9, 1950 favoured regulatory measures to check immoral
trafficking of women and girls. Consequently an Act called SITA i.e., Suppression of
Immoral Traffic in Women and Girls Act, 1956 was passed in India which aimed at
suppressing the evils of prostitution. Under the Act, the individual prostitutes were
inhibited from practising their profession only in the vicinity of certain public places
e.g. places of religious worship, educational institution etc. Section 3 of the Act made
brothel keeping as a serious offence. The term 'prostitution' was defined in Section
2(f) of the Act as "the sexual exploitation or abuse of persons for commercial
purposes".255
255Baishanta v. State of Gujarat, (1967) Cr. L.J. 1940 (Gujarat) : See also, T. Jacob v. State, (1971)
Despite working of the Act for more than twenty years no significant
achievement was made to eradicate prostitution. The Act was, therefore, amended
drastically in 1978 and the provisions of the Probation of Offenders Act, 1958 were
extended to the fallen women and girls and penalties for offences under SITA were
enhanced and made more stringent. But these measures were again felt inadequate,
hence the Parliament again intervened and by the Amendment Act of 1986, the
provisions relating to probation of fallen women and girls were completely repealed
and stricter penalty was provided for offences under the Act. It was also realised that
time has come when male prostitution should also be covered by the Act. Therefore,
the title of the Act was changed from SITA to ITPA256 (Immoral Traffic Prevention
Act) and the word 'person' was substituted in place of 'women and girls'. Therefore, the
definition of a 'prostitute' now includes both female and male.
The Act provides257 for the appointment of a special police officer for
investigating the offences with inter-State ramifications. The raids and searches
should be conducted in the presence of atleast two police women.
Despite widened scope, the Act still suffers from certain serious defects. The
customer of the sex demand still remains a mere witness against the victim woman.
The punishment for keeping a brothel or allowing premises to be used as a brothel is
too lenient.
Section 3 of the Act prescribes the special procedure with respect to arrest,
investigation and trial of offences under the Act. The offences under the Act are
cognizable258 and search can be made without warrant.259
For most of the offences under the Act, a minimum sentence of seven years has
been provided which may extend to life or ten years.
Section 23-A of the Act confers powers on the Central and State Governments
to establish Special Courts for trial of offenders under ITPA. The offences can be
tried summarily under the Code of Criminal Procedure but the sentences in such trial
cannot exceed one year's imprisonment as provided under Section 22-B of the Act.
The ultimate purpose of the Act is to control the growing menace of prostitution
in public places. A special feature of the Act is Section 21 which provides that no
person or authority shall establish or maintain any protective home except under
licence by the State Government which can put a condition while granting licence
that the 'Home' should be entrusted to women. This is a salutory provision to check
misuse of 'homes' as 'dens' of prostitution.
The State Government may associate with Special Police Officer a non-official
advisory body consisting of not more than five leading social welfare workers of the
area including woman social welfare worker to advise them on questions of general
importance regarding the working of the Act.260
The constitutional validity of the Immoral Traffic (Prevention) Act, 1956 was
challenged in Shama Bai v. State of Uttar Pradesh261 but the court held that Sections 4(2)
and 20 of the Act were constitutional and not violative of fundamental rights as none
of the provisions of the Act are intended to stop profession or trade of a prostitute
Cri. L.J. 952 (Kerala).

256 For details of the Act See Appendix 111.
257 Sec. 13 of the Act.
258 Sec. 14.
259 Sec. 15.
260 Delhi Administration v. Ram Singh, A.I.R. 1962 SC 63.
261 AIR 1959 All 57.
Sexual Offences 183
altogether. Only restrictions can be imposed reasonably as section 3 only punishes

running of a brothel.
It may be noted that Article 23 of the Constitution of India prohibits immoral
traffic in human being and makes it punishable under the law.
International Dimensions of Human Trafficking
The trafficking of women, young girls and children at international level
continues to be a global problem which is generating seven billion dollars business
every year. It is the third largest illegal transnational business after drugs and arms.
The merchandise for this lucrative trade is mostly women and children from marginal
communities who are looking for a viable employment and means of survival. The
traffickers use the bait of better life opportunities, to deceive the victims and exploit
their innate human need to migrate for better opportunities. Women and young girls
are primarily trafficked to satiate the
demand of the global sex trade. The principle underlying illegal human
trafficking is the sheer powerlessness of the victims arising out of gender disparities
and the lack of economic choices. Although each nation state has laws and policies
against illegal human trafficking but they lack effective implementation.
The global community is constantly responding against the menace of human
trafficking by formulating numerous regional and International Conventions to
mitigate this rampant violation of human rights. Some of these are the Conventions
on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979
and the Convention on the Rights of the Child (CRC) 1989. The Beijing + 5
Conference and recent SAARC Conference at Male also took ,up this issue for
deliberation and discussion.262
Rescue Homes For Destitute Women
There are several social service institutions such as the Rescue Homes,
Vigilance Homes, Vigilance Rescue Shelters, Stri-Sadans, Nari Niketans etc.
operating in different parts of India for rehabilitation of destitute girls and women
who have fallen a prey to prostitution willingly or per chance. The Nari Niketan
functioning at New Delhi under the Social Welfare Board offers all possible help to
the morally wrecked girls and deserted women, thus preventing them from landing
into the world of prostitution. Similar services are rendered by the Mahila Ashram at
Wardha. The States of Madras and Maharashtra seem to have taken up the task of
rehabilitation of women prostitutes on priority basis. Referring to the problem of
prostitution, Smt. V.T. Laxmi, the Chief Inspectress of Women's Institutions,
Madras, commented that majority of the women drift into prostitutous life on
account of neglected parental care and for want of real home.
In order to tackle the problem of prostitution effectively, it is necessary to focus
greater attention on the exploiters of prostitutes and pimps who carry on their illegal
activities in such a manner that the poor girls who fall a prey to these rogues are left
with no other alternative but to continue a life of shame and disgrace as a prostitute.
It is further to be noted that the prostitutes cannot approach the law courts for redress
against their exploiters because of the illegality of their occupation. This affords
sufficient protection to pimps who are associated with prostitutes. It is disgusting to
note that the agents of prostitutes are operating in big cities and they even do not
hesitate to procure girls from respectable families and force them to submit to their
vicious wishes and lead a prostitutous life. Besides this, in some cases the husband
himself voluntarily offers his wife to others for sexual enjoyment in exchange of
money or some other material gain. The problem of repressing this type of
prostitution obviously remains unsolved with the existing laws. It is, therefore,
desired to inculcate respect for moral values and self-restraint among people through
an improvised system of moral education. The social and correctional institutions can
certainly contribute to educate the delinquents who have deviated from the righteous
path and landed into the world of immorality. Since the evil is deep rooted in Indian
society, the legislators and the social reformers should not feel disheartened if their
efforts to repress the menace of prostitution do not bring immediate success. The
problem has to be tackled on all fronts with courage and determination keeping in
view the rapidly changing behavioural patterns of Indian society. The vice is sure to
vanish in course of time. It must be stated that the network of social agencies which
are presently at work to repress prostitution and co-related offences are doing
262 UNIFEM. SARO : Human Trafficking; Times of India (Delhi) dated April 24, 2001.
Sexual Offences 185
commendable service. It is, however, a different matter that with the new methods of
repression, new techniques are devised by the professional pimps and prostitutes to
carry on their occupation.
The judiciary has also expressed its concern for the unabated increase in
prostitution. The Supreme Court of India in Gaurav Jain v. Union of India,263 inter alia
observed :
"despite legislation which has been brought to control prostitution it
has been on the increase and what was once restricted to certain
areas of human habitation has now spread into several localities and
the problem has become serious".
The Apex Court ruled that the children born to prostitutes should be separated
from their mother as they should not be permitted to live in inferior and undesirable
surroundings of prostitute homes. This is particularly true so far young girls are
concerned whose body and mind are likely to be abused with growing age for being
admitted into the profession of mother.264
The Supreme Court was once again called upon to review the plight of
prostitutes in its recent decision in Gaurav Jain v. Union of India & others.265 It issued
directions for the prevention of induction of women in various forms of prostitution,
their rescue from vile flesh-trade and rehabilitation through various welfare measures
so as to provide their dignity of persons, means of livelihood and socio-economic
empowerment. The Court observed :
"It is the duty of the State and all voluntary non-governmental
organisations and public spirited persons to come to the aid of prostitutes to
retrieve them from prosecution, rehabilitate them with a helping hand to lead a
life with dignity of person, self-employment through provisions of education,
financial support, developed marketing facilities as some of major avenues in
this behalf. Marriage and acceptance by family is also another important input
to rekindle the faith of self-respect and self-confidence".
The Apex Court remarked that flesh-trade should be viewed as victims of
adverse socio-economic circumstances rather than as offenders.
It must, however, be noted that in India, prostitution was known to have been in
existence from ancient-times. Kautilya, in his "ARTHSHASTRA" has referred to the
duties of Supeiintendent of Prostitute Homes. Vatsayana in his KAMASUTRA has
dealt with all aspects of sexual life including those of prostitutes.
Prostitution also flourished well under the patronage of Moghul rulers. The
Harem of Moghul Nawabs consisted of hundreds of concubines. Visit to prostitute's
house was taken to be a symbol of status and young boys of Royal
263 AIR 1990 SC 292.

264 Ibid.
265AIR 1997 SC 3021 (P1L Relief Petition).
family and nobles were sent to prostitutes so that they could not only learn about the
pleasurable sex but also gain knowledge about the manners in this field.
Later, during the British period prostitution became the source of great
entertainment for male foreigners and the two World Wars gave great impetus to
brothels and prostitution houses with the large number of foreign soldiers and sea-
men visiting these places and paying for sex-enjoyment handsomely. Poverty, sex
perversions, unhappy and disturbed family life, abnormal carnal appetite etc. have
become the known causes of prostitution which has upset the equilibrium of Indian
society.
Now-a-days, a new form of prostitution called 'Clandestine Prostitution' is
constantly increasing wherein maid servants, mistresses, and women labourers
indulge in illegal sex for earning additional income. They make themselves available
in lonely houses, hotels, lodges and even on way-side desolate places. The decline of
family life, decay of traditional morality, craze for pleasure and luxurious life and
commmercialised sale of contraceptives are some of the factors which are
responsible for clandestine prostitution.
Though Devdasi system in Southern India was a form of prostitution, it is now
banned by the law. But it still continues in certain parts of Karnataka and
Maharashtra in some clandestine form.
Sex Ethics
Finally, it may be stated that the menace of prostitution cannot be eradicated by
law alone unless people themselves take initiative in mobilising public opinion
against it and ensure rehabilitation of existing prostitutes. Perhaps the lack of general
agreement as to the sex ethics presents real difficulty in reducing sex delinquency. As
stated by Donald Taft, "attitudes towards sex behaviour are not the same in rural areas
as in cities, among poor and rich, educated and ignorant and orthodox and puritans.1
One group considers contraception as unnecessary interference with the divine
institution and intercourse except for the purpose of procreation as sinful, while the
other holds that it is the primary right of every child to be wanted and permits sex
relations for pleasure so long as worst social consequences are avoided. One
conceives marriage as sacred, irrevocable and religious ceremony while the other
approves of various degrees of experimentations holding that marriage is too
important to be entered into without trial, one approves of while the other
disapproves of sex discussions." The fact, however, remains that whether a particular
conduct comes within the purview of sex offence or not is always judged in the light
of the actual social consequences of that conduct. What the society condemns is
represented through the legal prohibitions which if violated, entail punishment.
Women and Domestic Violence
Women constitute nearly one-half of the Indian population, but they are placed
at various disadvantageous positions due to gender discrimination and bias. In the
male dominated society, women have been victims of violence and exploitation.
India being a tradition bound society, women have been socially,
economically, physically, psychologically and sexually exploited for centuries. The
1. Taft Donald : Criminology. (3rd Ed.), p. 121.

Sexual Offences 187

concepts like sex-equality,266 women's empowerment etc. have come out of the
constitutional provisions after the Constitution of India came into force on 26th
January 1950. But truly speaking equality of status guaranteed by the Constitution is
only a myth to millions of women who are subjected to various kinds of violence
within their domestic home. The domestic violence manifests as verbal, physical or
psychological abuse of women. The victim's inability to access to law makes legal
remedies ineffective and the inability of the law to reach the victim is even more
tragic.267
Marital rape is a common form of domestic violence. A government
organisation for women's right dealt with a case wherein a middle aged woman
called up the Human Rights Commission and accused her husband of forcing sexual
contact with her. She wanted to avoid any such contact as her husband apparently
visited sex workers quite often and she suspected him of having contacted venereal
and related diseases. There is proposal before Law Commission of India for
inclusion of marital rape in the law but many believe that the provisions may be
misused and that the Indian society is not prepared for such a provision as yet.
However, there is no doubt that the problem of marital rape is a grey area of law and
evidence.
Even in England rape within marriage was considered an impossibility till
recent years. But it was in R. v. R,268 that the House of Lords had altered this position
and observed that the position of women had changed so radically that rape within
marriage has now become possible if the wife has not consented the intercourse by
the husband. Therefore, husbands have now to be sure that their wives are consenting
to intercourse, not merely submitting to it out of fear or some compelling reason.
Torture and Harassment of Women
The role of women in India is confined to that of a daughter, housewife and
mother. Unfortunately women are not safe even within the four walls of their homes.
Housewives are subjected to physical torture and psychological harassment
irrespective of their economic status, religion, caste and creed. Perhaps family
conflict stress, cultural norms and sexual inequality contribute to wife battering.
The worst aspect of violence against women is that it receives social sanctity.
Neighbours, authorities and even the police hesitate to intervene in cases of domestic
violence because they feel it as a very private domain. Women are vulnerable to acts
of violence in the family which include foeticide, infanticide, marital cruelty, dowry,
murder, child abuse, incest, battering etc. At the community level, they face violence
in the form of rape, sexual harassment, eve-teasing trafficking and sexual
discrimination. Custodial violence and institutional deprivations are types of gender
violence that emerge at the level of the State.
The issue of domestic violence against women slowly began to surface in
public forums during the last decade of the 20th century, though many still see
266 Article 15 of Constitution of India.

267AIR 1999 (Journal) 146.
268(1992) 1 AC 599.
it as affecting only a handful of women who do not adjust themselves with the family
norms. Wife beating is said to be the most prevalent form of domestic violence
which reflects "men's frustration at their inability to convince their spouse by words
alone." It is with the development of human rights jurisprudence that women's
exposure to domestic violence received public attention and the policy makers felt
the necessity for bringing out a legislation to encourage victimised women to report
violence and the State to launch rehabilitation services for the battered women.
The need for protection of women against domestic violence necessarily
emerged as a human rights issue and a serious threat to social development. The
United Nations Committee on Elimination of All Forms of Discrimination Against
Women (CEDAW), in its general recommendations (1989) had recommended that
state parties should protect women against violence of any kind especially that
occurring within the family.
The World Conference on Human Rights at Vienna held on June 25, 1993 for
the first time recognised the violations of women's human rights in many ways and
held that they are inalienable, integral and indivisible part of the universal human
rights and demanded equal status of women with men. It favoured eradication of all
forms of discrimination against women.
Despite these rights of women and setting up of Women's Commission at the
Centre and State level, the plight of Indian women, by and large, has still remained
miserable. The reason being that a vast majority of women are ignorant of the
protective laws or even their existence.
The Government of India being a signatory to the UN General Assembly
Resolution to adopt the Declaration on the Elimination of Violence Against Women
(December, 1993), the Ministry of Human Resource Development has brought out a
Bill on Protection from Domestic Violence, Bill, 2001 (Bill No. 133 of 2002) which
has been introduced in the Parliament in the budget session of 2002. This Bill which
has become an Act, provides much needed emergency relief and succour to
aggrieved and powerless women who are exposed to various forms of abuses.
However, without making women aware of their rights through education and
society at large conscious of its duty to respect the rights of women, no law can bring
about the desired change in the status of Indian women.
The Parliament has already enacted numerous legislations to eradicate gender
bias and discrimination against women. The Constitution also provides adequate
protection to women against gender injustice. The Dowry Prohibition Act, 1961, the
Suppression cf Immoral Traffic (Prevention) Act, 1956 the Maternity Benefit Act,
1961, the Indecent Representation of Women (Prohibition) Act, 1986 are enacted to
protect the rights of women and ensure them a life of dignity. Speaking about the
inefficacy of the Dowry Prohibition law, the Supreme Court in Norottam Singh v.
State of Punjab,1 observed, "it is distressing that dowry or bride price should mar
marriage felicity with feudal cruelty in India, largely because the anti-dowry law
sleeps on the statute book and social consciousness is not mobilised to ban
effectually its vicious survival."
As stated earlier, the Global Instruments on Human Rights related to
women and children have been emphasizing on protection of human rights of women
which include right to equality before the law, right against gender discrimination,
right against harassment; right to abortion, right to privacy and the right to economic
1. AIR 1978 SC 1542.

Sexual Offences 189
empowerment. In recent years, right against female infanticide is also gaining

269
momentum as a human right in some parts of the world. The Supreme Court in State
of Maharashtra v. Madhukar Narayan270 has observed that in the context of Art. 21 even
a woman of easy virtue is entitled to privacy and that no one can invade her privacy
as and when he likes. The Supreme Court has consistently maintained that the offence
of rape is violative of the right to privacy of the victim. "A murderer destroys the
physical body of his victim but a rapist degrades the very soul of the helpless
female.271
The Protection of Women From Domestic Violence Act, 2005272
In order to protect the rights of women who are victims of violence of any kind
occurring within the family and to provide for matters connected therewith or
incidental thereto, the Parliament enacted the Protection of Women From Domestic
Violence Act, 2005 which came into effect from 26th October, 2006. The Act was
passed by the Parliament in August, 2005 and assented by the President on September
13, 2005. The Act is primarily meant to provide protection to wife or female live-in
partner from violence at the hands of the husband or male live-in partner or his
relatives, the law also extends its protection to women who are sisters, widows or
mothers.
Domestic violence273 under the Act includes actual abuse or the threat of abuse
whether physical, sexual, verbal, emotional or economic. Harassment by way of
unlawful dowry demands to the woman or her relatives would also be covered under
this definition. The Act also recognises the woman's right to secure housing, whether
or not she has any title in the household. This abuse of power may exist in the form of
violence between members of household, usually spouses, an assault or other violent
act committed by one member of a household against another. It may be in the form
of physical, emotional, sexual or psychological abuse against women.274
It has been realised since long that domestic violence is widely prevalent but has
remained largely, invisible in the public domain and Section 498-A, IPC does not
address itself fully to this devastating problem since it is confined only to protect
woman against cruelty by her husband or his relatives.
The main features of the Protection of Women From Domestic Violence Act,
2005275 are as follows :—
(i) any conduct of relative of the victim which subjects her to habitual
assault, or makes her life miserable, or injures or harms, or forces her to
lead an immoral life would constitute domestic violence;
(ii) the Judicial Magistrate of the first class or the Metropolitan Magistrate
may take the cognizance of domestic violence and a protection order
requiring the relative of the woman to refrain from committing an act of
domestic violence, or pay monetary relief which is deemed fit in the
269 The year 2001 was celebrated as the year of Women's Empowerment.
270 AIR 1991 SC 207.
271 State of Punjab tv. Gunnit Singli, AIR 1996 SC 1393.
272 The Act consists of 37 sections spread over Five Chapters.
273
Domestic violence as a human rights issue was deliberated in Vienna Accprd of 1994 and Beijing
Platform of Action in 1995. ,
274 Preeti Mishra: Domestic Violence Against Women: Legal Control and Judicial
Response (2006) Deep & Deep p. 51.
275 New Zealand in its Domestic Violence Act, 1995, has categorised domestic violence into physical,
sexual and psychological abuse and provides for preventive measures. Malaysia also has a similar
legislation passed in 1994.
circumstances or pass any other direction as he may consider just;

(iii) the Magistrate may even require as an interim and urgent measure from
the relative of the woman to execute a bond, with or without sureties, for
maintaining domestic peace;
(iv) the violation, by the relative, of the order made by the Magistrate would
constitute an offence punishable with imprisonment upto one year, or
with fine, or with both;
(v) Appeal can be made to Sessions Court against the order of the concerned
magistrate within a period of 30 days from the date of order;
(vi) Protection Officers are appointed under the Act, to help the victim of
domestic violence in making application to the Magistrate and in availing
of her legal rights;
(vii) such Protection Officers shall be appointed by the State Governments
and they shall posses? such qualifications as may be prescribed by the
Central Government; and
(viii) Protection Officer shall be deemed to be a public servant within the
meaning of Section 21 of IPC, and if he fails or refuses to discharge the
duties as directed by the Magistrate, his act shall amount to be an offence
punishable with imprisonment upto one year, or with fine, or with both;
(ix) Monetary relief may be given to the aggrieved woman to meet the
expenses or loss;
(x) shelter-home and medical facilities can be provided to the aggrieved
woman;
(xi) Every aggrieved woman shall have right to reside in shared household.
In exercise of the powers conferred by Section 37(1) of the Protection of Women
from Domestic Violence Act, 2005,276 the Central Government has made Rules2 for
carrying out the provisions of the Act.
Undoubtedly, the Protection of Women from Domestic Violence Act, 2005 (43
of 2005) is a welcome social legislation. Although women have made stupendous
progress in almost every sphere of life, one cannot be oblivious to the fact that they
continue to be victims of violence of different hues. Most cases remain unreported for
fear of reprisal and ostracism by the family. In fact, gender inequality is one of the
primary causes of social exploitation of women which this Act seeks to redress.
However, certain quarters feel that the Act is an unwarranted interference of law in
domestic relationship and it will harm the
1. Hereinafter called 'PWDVA'.
2. See Appendix VIII.
bonds within families. They allege that it is ominous for the law to directly descend
upon domestic life and an indirect attempt to westernise our family system. "A life
regulated by fear of law is hardly worth living." Some critics apprehend that the law
against domestic violence is highly prone to misuse like section 498-A of the Indian
Penal Code since it assumes that a woman is always right and speaks the truth and
men are exploitative by nature. It may be recalled that even the Supreme Court of
India has observed in Susliil Kumar Sharma v. Union of India and others,* that Section
498-A of I.P.C. being misused as "legal terrorism" and asked the Government to plug
the loopholes. The law against violence is yet another piece of legislation which is
more likely to be misused as an handle for women to blackmail men. Those who
criticise the Act, assume that it may lead to more broken-marriages and husbands
seeking divorce on grounds of harassment which would not be in the interests of the
society as a whole.
276 Writ Petition No. 141/2005 dated 19-7-2000, deceided in Supreme Court.
Sexual Offences 191
The national report on domestic violence states that primary users of this law
are married woman. However, there are also cases where relief has been granted to
widows and daughters. The law upholds the rights of women to reside in a shared
house as also the right to counselling and protection. As a protective tool, it seeks to
provide relief against physical, economic, mental and sexual violence.
The PWDVA envisages the appointment of protection officers to record
incidents of domestic violence and support distressed women even by providing
them shelter in homes if necessary, but the State Governments are not able to provide
these facilities for want of requisite budgetary support.
Counselling
In order to protect women against domestic violence, "crime against women
cells" have been established in the Police Departments in metro-cities and other
places. They try to alleviate personal and inter-personal woes of the distressed
women by counselling through face-to-face conversation between the spouses. The
counsellor arranges counselling sessions to resolve various issues related to domestic
violence. At times, counselling may not succeed in breaking the cycle of violence to
the fullest extent, but it certainly helps the victim to understand and identify the
factors and causes that facilitate domestic violence and try to resolve them amicably.
Socio-Legal Perspective of PWDVA Act
Undoubtedly, PWDVA is a comprehensive law which addresses all issues
relating to women. It is a progressive legislation as it extends legal protection to
women in the household on the domestic relationships which are not restricted to
martial context alone but also extends to adoption, joint family and even recognises
violence in living relationship as well.
However, with a view to preventing further damage to martial harmony and
social stability in India, there is need to amend the Act on the following lines;—
(1) Act should be made gender neutral and equal protection should be
extended to men and women against physical, emotional, verbal
and economic abuse.

(2) Like any other law, this law should also be based on presumption of
innocence until the guilt is proved.
(3) The Act attempts to legalise living relationships thereby violating laws
against polygamy and also disregarding the rights of a legally wedded
wife.277
In short, the Act should be more benign, sensible and gender neutral providing
legal protection to men and women within and outside the home.
Be that as it may, it only remains to be seen how far the anti-domestic violence
law succeeds in its objectives but it must be clearly understood that law alone can
never solve the social problems unless it gets voluntary support of the community at
large. However, it must be accepted that PWDVA would certainly help in mitigating
the gender inequality to a great extent and strengthen the cause of women
empowerment in India.
Sexual Harassment of Women at Work Places
One of the evils of the modem society is the sexual harassment caused to the
women particularly the working women by their male counterparts at work-places.
The Supreme Court in a PIL time and again has been emphasising on the need for an
effective legislation in India to curb sexual harassment of working women. Finally, in
Vishakha v. State of Rajasthan,1 the Court laid down guidelines to remedy the
legislative vacuum on this issue. It defined "sexual harassment" as including any
unwelcome sexually determined behaviour (whether directly or by implication) like
physical contact and advances, a demand or request for sexual favours, sexually
coloured remarks, showing pornography and any other unwelcome physical, verbal or
non-verbal conduct of sexual nature. As a result of this judgment any woman
employee who is subjected to sexual harassment of any kind can take recourse to
initiating criminal proceedings, disciplinary action and also seek compensation from
the guilty employer or other person responsible for the sexual harassment.278
It is gratifying to note that the broad guidelines laid down in Vishakha's case
were applied by Bombay High Court in 1998 in the case of Mrs. Shehnaz Sani who
was working as a ground hostess in Saudi Arabian Airlines of Bombay and was
sexually harassed by her employer. The Court directed the employer of Mrs. Sani to
reinstate her with back wages for 13 years, during which she was rendered
unemployed due to the wrongful termination of her services by her boss. This
judgment has certainly set a new trend in the protection of human rights to dignity of
working women in India.
The Supreme Court in Apparel Export Council v. A.K. Chopra,279 emphasised that in
cases involving violation of human rights, the Court should be alive to the
international convention and apply the same in deciding cases, particularly, those
relating to violation of right to gender equality and right to life and liberty including
sexual abuse and harassment of female at the work place. In this case the delinquent, a
superior officer was found guilty of molesting and of having
tried to physically assault a female subordinate employee.
The Court held that the act of the delinquent was wholly against moral sanctions
and decency and, therefore, mere want of actual assault or bodily touch or contact
does not render the punishment of removal of the delinquent from the service wholly
unjustified. In other words, the conduct of the delinquent does not cease to be
outrageous as it clearly amounts to sexual harassment. The appeal was, therefore,
277Ritika Banerjee: Domestic Violence Act—Sociological Perspective; dt March 12, 2010.

278 Medha Kotioal Lele v. Union of India, 2004 (5) SCALE 573.
279AIR 1999 SC 625.
Sexual Offences 193
dismissed.
Dowry And Dowry Deaths
Giving of dowry in the marriage of a daughter is an age-old practice in India
perhaps because she had no right to inherit the parental property after her marriage
under the old Hindu Law. Of late, the greed for acquiring more and more property in
the form of dowry has reached a stage when married women are subjected to physical
and mental torture by the husband or her in-laws for non-fulfilment of the demand of
dowry by girls' parents. Many a time this torture leads to unnatural death of the
married woman or she is compelled by circumstances to commit suicide.
Despite the Dowry Prohibition Act, 1961 and amendment in 1987 providing for
stringent punishment, the menace of dowry and dowry deaths persists unabated.
Sections 3 and 4 of the Act not only prohibit actual giving or taking of dowry, but
also make the demand of dowry at the time, before or after marriage, an offence
punishable with imprisonment which may extend to two years. The Supreme Court in
S. Gopal Reddy v. State of Andhra Pradesh/ has ruled that the demand of dowry for the
proposed marriage which does not materialise for non-fulfilment of the dowry
demand, is also an offence punishable with imprisonment upto two years. These
offences are cognizable for the purpose of investigation by the police.
In the case of Sliobha Rani v. Mndhukar Reddy,280 the ground of divorce was
cruelty caused by incessant demand of dowry. The husband's version was that there
was nothing wrong in his parents asking for few thousand rupees in time of need. The
trial court and the High Court of Andhra Pradesh ruled that a dowry case was not
made out because there was nothing wrong and unusual in asking the wife to spare
money when needed. But on appeal, the Supreme Court reversed the findings of the
Courts below and held the husband guilty of demanding dowry.
The Supreme Court in Narottam Singh v. State of Punjab,281 commenting on dowry
menace and domestic violence against women observed :
"It is distressing that dowry or bride-price should mar married felicity with
feudal cruelty in India, largely because the anti-dowry law sleeps on the statute
book and social consciousness is not mobilised to ban effectually its vicious
survival. Law hanging limp, is a slur on the executive charged with its
enforcement and its traumatic
consequences ........ Will the administration be aware to the urgency of a
campaign so that the people may become participants in the observance of
social welfare legislation."
In dowry death cases the courts are often confronted with the problem of
deciding as to among the husband and relatives or whether all of them were guilty of
burning or killing the wife or causing her death. The problem becomes more difficult
when husband and wife are alone in the house. In absence of conclusive evidence, the
husband or in-laws of the married woman invariably get acquitted on benefit of
doubt.282
Having regard to the difficulty in establishing cause of death beyond doubt, the
legislature passed the Criminal Law Amendment Act, 1983 to resolve the problem of
growing incidence of crimes against women, particularly, bride burning or dowry
deaths. A new Section 498-A making cruelty against woman an offence was added to
the IPC and consequential changes were made in Sections 174 and 176 of Cr.P.C. and
280 AIR 1988 SC 121.

281 AIR 1978 SC 1542.
282Slmrad Birdicliand v. State of Maharashtra, AIR 1987 SC 1622; See Venugopal v. State of
Karnataka, AIR 1999 SC 146; Guru Bnchan Singh v. State of Punjab, AIR 1990 SC 209; Kundan
Bala v. State of A.P., (1993) 2 SCC 684 etc.
a new Section 198-A was added in it. The Amendment Act also added a new Section
113-A to Evidence Act which provides that where a married women commits suicide
within seven years of her marriage or dies an unnatural death, presumption will be
that she was subjected to cruelty by her husband or in-laws as the case may be,
having regard to the circumstances of the case.
It must be stated that Section 304-B of I.P.C. makes dowry death an offence
punishable with imprisonment of not less than seven years which may extend to
imprisonment for life.
Protection of Women Against Possible Sex Harassment by Police Personnel :
As a law-enforcement agency the police owe a social and legal responsibility to
protect women against crimes. However, with the increasing number of women and
young girls coming in contact with the police either as complainants or as accused or
as victims of crime, there is likelihood of police personnel misusing their power and
authority and misbehaving or harassing the women for sex. Therefore, adequate
safeguards have been incorporated in the Code of Criminal Procedure, 1973 as also
the Police Acts and Rules of the States for the protection of women against possible
harassment by the Police.
Section 51(2) of the Code of Criminal Procedure provides that whenever it is
necessary to cause a female to be searched, the search shall be made by another
female with strict regard to decency.
Section 160 of the Code provides that no male person under the age of fifteen
years or woman shall be required to attend any place other than the place in which
such male person or woman resides.
Section 437 of the Code of Criminal Procedure further provides for release of
any woman, or any sick or infirm person accused of non-bailable offence to be
released on bail even where the alleged offence is punishable with death or
Again, if a person of a woman has to be examined by the Medical Officer for
the purposes of evidence, she should not be sent for such medical examination
without her consent and without an order of a Magistrate.
The Jail Manuals and Police Acts of the States mostly contain a provision that
while arrested woman is being escorted to jail, one of her male relative should be
permitted to accompany the escorting party. In no case fetters shall be imposed on
female offenders. Again, female inmates should be lodged separately from males.
Amendments of Law Relating to Rape :
More recently it is being realised that rape should not be treated as a sex-crime
but it should be viewed as an aggressive crime against person. Researches have
shown that very often the intention of the offender is aggression rather than sex
enjoyment. GrotJi and Bimbcium observed that the rapist derives an eroticised pleasure
not through sex but through an horroendous assault on victim's body. In case of a
rape besides the psychological trauma, the woman is expected to prove physical
injuries or some sort of non-genuine consent on her part. It is to be noted that
majority of rape cases are not sudden occurrences but they are generally well
planned.
The Criminal Law Amendment Act, 1983 has introduced certain important
changes in the law relating to rape. A new Section 114-A has been inserted in the
Indian Evidence Act. By this amendment the Act lays down that onus of proving that
the woman had consented to the act shall be on the accused. Some quarters feel that
this stringent provision of the rape law would expose men to blackmail by interested
elements and the women of easy virtue. However, the Supreme Court in Bhagwada
Sexual Offences 195

Boghinbliai Hirji v. State of Gujarat, while rejecting this contention observed that,
283
"instances of false allegations of sexual molestation which are made by western

society women who are gold-diggers and seek to extract money by holding out the
gun of public disclosure are extremely rare in tradition bound non-permissive Indian
society where, by and large, sex is taboo."
It must be stated that though the amendment Act has been widely acclaimed
and criticised by the anti-rape movement, it has brought to the fore, key issues around
press censorship, age of consent, appropriate punishment, burden of proof, custodial
rape and the past sexual history of the victim. To that extent it has helped in
controlling violence against women.
The police version is, however, different. They feel that this change in the law
has placed policemen in a vulnerable position thus having a demoralising effect on
them.284
The offence of rape has been defined in Section 375 of the Indian Penal Code
whereas Section 376 provides punishment for rape. Under this section, more severe
punishment is provided for the rapist if he happens to be a police officer or public
servant or a person on the management of the jail staff or remand home and commits
rape on any inmate, thus abusing his official position.
The law relating to rape makes a distinction between vulval penetration and
vaginal penetration. In order to constitute the offence of rape, the law merely requires
medical evidence of penetration, and this may occur and even then hymen may remain
intact, i.e., unruptured. Seminal emission is not necessary to establish rape. It is for this
reason that absence of spermatozoa cannot negative the commission of rape.
It is significant to note that in 1997 'SAKSHI', a voluntary organisation
interested in the issues concerning women, through a PIL writ285 petition, approached
the Supreme Court of India with a plea that existing Sections 375 and 376 of I.P.C.
and judicial interpretation thereof is not in tune with the current state of affairs. It has
urged the apex court to direct, through an appropriate writ, that 'sexual intercourse' as
contained in Section 375 should include all forms of penetration, such as vaginal, and
oral penetration as also penetration by any part of body or by any object. The Supreme
Court had directed the 15th Law Commission to examine the issue and the Law
Commission after a careful review of the rape law in vogue has in its 172nd Report
submitted to the Government of India on March 25, 2000, recommended that the law
relating to rape may be made gender neutral, wider and more comprehensive to bring
it in tune with current thinking. However, a two-judge Bench of the Supreme Court
in Sakshi v. Union of India and others,286 has rejected the plea for re-interpretation of the
provisions of Section 375 IPC to give them a wide import by expressly specifying
'various forms of penetration' within its ambit.
. The Court noted that there is absolutely no doubt about the interpretation of the
provisions of Section 375 and the law is well settled. Re-interpretation of Section
375 of IPC will lead to a serious confusion in the minds of prosecuting agencies and
would unnecessarily prolong die legal proceedings and would have adverse impact
on society as a whole.
In the instant case, giving its opinion on the manner of recording evidence in
cases of violence against women, the Court explained that the whole inquiry before a
Court being to elicit the truth, it is absolutely necessary that the victim and the
witnesses are able to depose about the entire incident in a free atmosphere without
283 AIR 1983 SC 753.

284 Sanker Sen : Police Today, (1986 Ed.) pp, 119-120.
285 Sakshi v. Union of Indin, (1999) 6 SCC 591.
286(2004) (6) SCALE 15.
any embarrassment. Section 273 of Cr.P.C. merely requires the evidence to be taken
in the presence of the accused. The Section, however does not say that the evidence
should be recorded in such a manner that the accused should have full view of the
victim or the witnesses. The Court remarked that the recording of evidence by way
of video conferencing vis-a-vis Section 273 Cr.P.C. has been held permissible by the
Court. In cases of rape, questions put in cross-examination are purposely designed to
embarrass or confuse the victim of rape and child abuse. It will, therefore, be better if
the questions are to be put by the accused in cross-examination are given in writing
to the Presiding Judge of the Court, who may put the same to the victim or witnesses
in a language which is not embarrassing. Also, whenever a victim is required to give
testimony, sufficient breaks should be given as and when required.
Law Relating to Rape Needs to redefine Gender identities
A recent judgment handed down by the Shivpuri (Madhya Pradesh) District
Judge is likely to stir up debate in legal and medical fraternities regarding gender
identities in rape cases. The learned judge convicted the accused under section 376
I.P.C. even as the defence counsel argued that the rape victim was not a woman since
she had no vagina from birth, implying that
she was a eunuch. The decision has far-reaching import for 'third gender'.
The defence argument was that since there was no vagina, there was no
penetration of it and thus the offence of rape as charged by the prosecution against
the accused Ganesh Ram of village Lukwara (Madhya Pradesh) was not made out.
The convict had forced entry into the house of the victim in the dead of the night
and raped her last year i.e., in 2003. The 25 years old victim had been abandoned by
her husband who had remarried. She had been living with her brother. Besides rape,
the accused had also assaulted her physically.
The learned Judge sent a copy of the judgment to the High Court of Madhya
Pradesh with a request to forward it to the law Ministry, Government of India, as she
had found that the case had raised the issue of redefining gender identities so as to
include transgender and trans-sexual persons within the ambit or have a gender-free
definition of the offence of rape. She observed, "this will prevent the violation of
essential human dignity and freedom through the imposition of disadvantaged,
stereo-typing, or social prejudice of persons born like the victim in this case."
The Judge concluded in her judgment that during the medical examination, no
suggestion whatsoever was given that the victim was not a woman, as she had no
female organs or that she was a transgender. The doctor opined that her injuries may
be due to forcible intercourse. District Judge Renu Sharma noted.
"Merely because the doctor found that there was a hole and instead of vigina,
there was a passage and uterus and ovaries could not be visualised, does not
automatically take the victim out of the definition of woman for the purpose of
Section 376 of IPC". After citing several international judgments, she observed that
when the criteria for defining male and female are looked at more closely, two
important facts become obvious. First, sex is definable at many different levels, some
biological, and some social and some psychological. Second, a significant population
is not entirely covered in every aspect of or every level of definition.
The learned judge noted that the existing definition of rape under Section 375 of
the IPC does not adequately address nor sufficiently recognise the gender-specific
nature of such crime. Today, the determining factor in gender identity is not only
chromosomes or the genitalia but the 'markedly gender differentiated brain.' The
Judge sentenced the accused Ganesh Ram to ten years of rigorous imprisonment
under Section 376 I.P.C. and a fine of Rs. 2000/- and three years RI and a fine of Rs.
2000/- under section 325 and one year's RI and a fine of Rs. 1000/- under Section
Sexual Offences 197

451 IPC. The sentences were to run concurrently. 287
The Supreme Court in Bodhiscittwa Gaittam v. Miss Subhra Chakraborty,288

explained the socio-legal implications of rape which according to it, "is not only a
crime against the person of a woman (victim), it is a crime against the entire society.
It destroys the entire psychology of a woman and pushes her into deep emotional
crises. Rape is, therefore, the most hated crime. It is a crime against basic human
rights and is also violative of the victim's most cherished fundamental right, namely,
the right to life as contained in Art. 21 of the Constitution." The Apex Court further
observed, "to many feminists and psychiatrists, rape is less a sexual offence than an
act of aggression aimed at degrading and humiliating women. The rape laws do not,
unfortunately, take care of the social aspect of the matter and are inept in many
respects."
The Supreme Court in its decision in Delhi Domestic Women's Forum v. Union of
India,1 took a serious view about the plight of woman and the impact of sexual
violence on her life. The Court laid down the broad parameters in assisting the victims
of rape during investigation and trial of the case. The guidelines provided that the
victims of sexual assault will get legal assistance from a competent lawyer right from
the stage of investigation by police till the conclusion of trial in the court. It will be
the duty of the police authority to inform the victim of her right to engage an advocate
for legal assistance. The advocate so engaged, shall not only render professional
service, but also assist the victim in getting help from other agencies like mind-
counselling or medical help etc. The anonymity of the victim must be maintained
throughout from the beginning of investigation till the conclusion of trial. The victim
must be awarded compensation by the Court when the case ends in the conviction of
the offender. The Court further directed that the Government must set-up Criminal
Injuries Compensation Board for awarding compensation to victims even when the
case ends in acquittal of the accused persons.
Despite innovation of Section 114-A in the Evidence Act by the Amendment
Act No. 43 of 1983 regarding presumption as to absence of consent in certain
prosecutions for rape, the situation has hardly improved. A large number of raped
women still fail to report to the police because they are embarrassed due to insensitive
treatment by the doctors, the law enforcement personnel and/or the cross-examining
defence lawyers.
Emunerating the defects in the present system of handling of rape cases, the
Supreme Court noted :—
(1) the complaints are handled roughly and are not given the attention
as is warranted;
(2) the victims, more often than not, are humiliated by police;
(3) victims invariably find rape trials a traumatic experience;
(4) the experience of giving evidence in Court has been negative and
destructive;
(5) victims consider the ordeal of trial worse than the rape itself;
(6) prolonged proceedings cause psychological stress on rape victims.
In this background the Court laid down the parameters for assisting the
victims of rape and recognised their right to compensation.
The Supreme Court in State of Himachal Pradesh v. Asha Ram,2 reiterated that the
evidence of a victim of a sex-offence is entitled to great weight, absence of
287 Rported in Hindustan Times (Bhopal Edition) dated September 24, 2004.
288 AIR 1996 SC 922.
corroboration notwithstanding. The Court identified the following factors as the

rationale for this rule :—
______ (1) A girl or a women in the tradition bound non-permissive society
1. (1995) 1 SCC 14.
2. Criminal Appeal No. 1266/1998 decided on November 17, 2005.
would be extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred;
(2) She would be conscious of the danger of being ostracised by the society or
being looked down by the society including her own family members,
relatives, friends and neighbours;
(3) She would have to brave the whole world;
(4) She would face the risk of losing the love and respect of her own husband
and her matrimonial home will be shattered ;
(5) If she is unmarried, she would apprehend that it would be difficult to
secure her alliance with a suitable match from a respectable and
acceptable family;
(6) It would inevitably and invariably result in mental torture and suffering to
herself;
(7) She would always be haunted by the fear of being taunted by others;
(8) She would be extremely ashamed and embarrassed to narrate the incident
on account of her upbringing in a tradition bound society where sex is a
taboo;
(9) She would not be inclined to give publicity to the incident due to the fear
of her family name being tarnished;
(10) Even the parents or husband of the sex victim would more often than not,
want to avoid publicity on account of fear of social stigma on family name
and family honour.
(11) The fear of victim herself being considered to be promiscuous or in some
way responsible for the incident regardless of her innocence may haunt in
her mind.
(12) Above all, reluctance to face odd interrogation and Court trial as also the
cross-examination by the Counsel for the culprit and the possibility of
being disbelieved also deters her from seeking justice through law court.
In the instant case, the father himself raped her young daughter which itself
indicated the gravity of the offence. Ordinarily the offence of rape is grave by its very
nature but it becomes more grave when perpetrator of crime is father against his own
daughter and obviously falls in the category of "rarest of rare" cases warranting
stringent punishment. The Supreme Court, therefore, enhanced the punishment from 5
years to that of imprisonment for life and the fine of Rs. 1,000/- to Rs. 25,000/-.
In yet another case i.e., State of Kerala v. K.M. Anthony,289 the Supreme Court held
that in rape cases against girls and women, the demand of corroborative evidence
from the victim is like adding fuel to the fire and no rapist should be allowed the
benefit of the obsolete and outdated rule.
In the instant case, accused K.M. Anthony committed rape on a ten year old girl
in presence of her disabled brother on 10th November, 1986. He was convicted for
the offence of rape by the trial Court and sentenced to 16 months' imprisonment. In
appeal, he was acquitted by the High Court of Kerala and the
State of Kerala filed an appeal against this acquittal, before the Supreme Court.
Allowing the appeal, the Apex Court restored the order of the trial Court and
289 Criminal Appeal decided on October 12, 2006.

Sexual Offences 199

held that in order to uphold morality and dignity of women in the society, the rapists
must be sternly dealt with and evidence produced by the victim should not be looked
with suspicion unless there are valid reasons to do so. The Court further observed that
as far as possible the court should apply judicial mind to the story narrated by the
victim of rape and judicial formalism should not be an impediment in ensuring justice
to her nor should she be treated as an offender in course of trial proceedings.
It would thus appear that the social stigma has a great devastating effect on rape
victims and at the same time it is a violation of her right of privacy. Publication of the
name of the victim of rape is, therefore, prohibited. Since public disclosure of private
facts can result in severe psychic distress, publication or broadcasting thereof would
amount to breach of privacy. As such, sexual life of a person is pre-eminently a matter
for protection under 'right of privacy'. Thus, in the American case of Flourida State v.
B./.F,290 the police had released the name of a rape victim and a newspaper reprinted
the information in violation of State law. The victim sued the newspaper for damages.
Recovery was, however, denied to the victim on the ground that government had
already made the name publicly available.
It hardly needs to be stated that a large number of rape cases remain unreported
because of the social stigma attached to the victim of rape and the humiliation and
mental torture which she has to undergo during the court trial. Particularly, in case of
unmarried girls who are victims of rape, their marriage becomes a real problem for
them as also to their parents. •
It is interesting to note that according to the available figures the reported rape
cases of unmarried girls exceed married women as victims and married men exceed
unmarried boys as offenders.291
As regards enforcement aspects of law relating to rape, particularly when the
offence is against a child or a young girl, certain precautions at the trial stage may
prove useful in extracting correct information about the crime and the criminal. Total
privacy at the time of recording the statement of the victim, her handling by women
police officer and reassuring her safety and security from the offender, would make
the victim more comfortable and provide meaningful evidence in rape trial. In rape
trials, anonymity of the victim must be maintained and legal assistance should be
provided to her at the police station itself.
Gang Rape
Reacting sharply against the rising incident of gang rapes in recent years, the
Supreme Court reiterated the law relating to this specific offence in its decision in
Vishwanathan & Others v. State of Tamil Nadu,292 and observed that where a woman is
raped by one or more in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape within the
meaning of Section 376(2)(g) of the Indian
Penal Code. The Court further held that the common intention of all the accused
need not be supported by the fact that each one of them took part in actual
commission of the offence. The gang rape being a graver form of the offence of rape
as defined in Section 375, I.P.C., some delay in lodging F.I.R. would not be fatal
considering the sociological background of the gang-raped victim. The trauma
suffered by victim is so great that it is natural for her to regain her composures only
after she resumes her consciousness.
Offenders of Rape Case Need to be Sternly Punished
290(1989) 491 US 524 (538).

291CRIME IN INDIA, 2007 (Government of India, NCRB Publication).
292 AIR 2008 SC 2222.
Mr. Justice S. Ratnavel Pandian of the Supreme Court (as he then was) in Madan
Gopal Kakkad v. Naval Dubey & another,* had observed that, "offenders of sexual
assault who are menace to the civilised society should be mercilessly and inexorably
punished in the severest terms." He further stated that, "Judges who bear the sword
of justice should not hesitate to use that sword with the utmost severity, if the gravity
of the offence so demands."
The Supreme Court in State of Karnataka v. Raju; held that where the victim of
rape is less than 12 years of age when she was sexually ravished, the accused must be
sternly punished in terms of Section 376(2)(f) of the Indian Penal Code. In this case,
the accused (respondent) was convicted for the rape of a 10 year old girl on 31-01-
1993 and sentenced to seven years imprisonment by the Additional Sessions Judge,
Gulbarga under Section 376, I.P.C. On appeal against this sentence, the single judge
of Karnataka High Court reduced the custodial sentence of the respondent to 3Vz
years undergone by him on the ground that he was an illiterate rustic boy of 18 years.
The State went in appeal against the judgment of High Court.
The Apex Court expressed surprise at the reduction of sentence of the accused
by the High Court and for showing undue sympathy towards the accused. The Court
note that the legislative mandate to impose a sentence for the offence of rape on a
girl below 12 years of age, for a term which shall not be less than 10 years, but which
may extend to life imprisonment and also fine, reflects the intent of stringency in
sentence in terms of Section 376(2)(f) of IPC. The sentence of less than 10 years R.I.
can be awarded only in exceptional cases and for 'special and adequate reasons'. The
reduction of sentence of the respondent from 7 years to 3Vz years already undergone
by him, on the ground that he was an illiterate rustic of 18 years age would not be
justified as a 'special and adequate ground', as done by the High Court. The order of
the High Court is therefore, clearly unsustainable. In fact, the trial Court should have
imposed the minimum sentence of 10 years as mandated by Section 376(2)(f) of
I.P.C. In view of these facts the High Court's order reducing the sentence was set-
aside and the trial court's order of awarding 7 years sentence was restored and the
State's appeal was allowed.
Reiterating its concern for appropriate sentencing in rape cases of girls below the
age of 12 years, the Supreme Court in Rajendra Datta Zarekar v. State of Goa, 3 upheld the
sentence of 10 years and a fine of Rs. 1000/- awarded to appellant who committed rape of a
girl aged 6 years, who was residing in his neighbour. The evidence including the
medical report established the guilt of the appellant beyond the doubt and the Court
found no mitigating circumstances which would justify less than 10 years of
sentence. Rejecting the plea of the appellant that he was falsely implicated in the
case, the Court stated that, "rape leaves a permanent scar and has a serious
psychological impact on victim and also her family members. No one would
normally concoct a story of rape just to falsely implicate a person." In view of the
provision contained in Section 376(2) (f) of IPC a sentence of less than 10 years
cannot be awarded to an accused who commits a rape on a girl below 12 years.
Therefore, the sentence awarded to the appellant could not be interfered with.
However, the fine of Rs. 10,000/- imposed on him is reduced to 1000/-. Appeal
therefore, stands dismissed.
The Apex Court once again held that imposition of sentence less than minimum
in rape cases, is mandatory and the reason that accused was an "illiterate agriculturist
from rural area and amount of fine of Rs. 2500/- was imposed on him", can neither be
said to be 'special' nor 'adequate' ground for reducing the sentence. Thus, in State of
Sexual Offences 201
M.P. v. Babulal, the appellant raped a married woman of 22 years who was working
293
in his "tapri". The husband of the victim and her blind mother-in-law filed F.I.R. and
medical report supported the prosecution story. There was no delay in filing of F.I.R.
The plea of the appellant that he was falsely implicated because of the failure of the
victim's husband to return advance money when demanded was found to be
untenable. The trial Court had rightly sentenced the accused for 7 years imprisonment
and a fine of Rs. 2500/- but in appeal the High Court reduced the sentence to the
'period already undergone' which was only 2 months and three days.
Disposing of the appeal the Supreme Court held that the High Court had
committed grave miscarriage of justice. There was no reason, much less 'adequate' or
special to reduce the sentence less than required to be imposed under Section 376(1).
The order of the High Court was therefore, set aside and the appeal filed by the State
was allowed. The order of conviction and sentence recorded by the trial Court was
upheld.
Marital Rape
Rape is an offence worse than murder as it is an assassination of a woman's
dignity which she is destined to suffer throughout her life. Of late, a specific form of
rape called as marital rape, is being recognised as a heinous crime in the western
world, notably the US and some European countries. Marital rape occurs when
women's bodies are outraged, regardless of their consent or willingness. However,
women in Indian setting do not make it an issue of complaint because it is against
social norms and considered acceptable for men to force their wives to sex294 as and
when they wish.
The term marital rape may be defined as "unwanted intercourse by a man on his
wife obtained by force, threat of force or physical violence or when she is unable to
give consent for it." The term 'unwanted intercourse' refers to all sorts of penetration
whether vaginal, anal or oral, perpetrated against the wife's will or without her
consent.
It may be argued against 'marital rape' as an offence, that consequent to marriage
between the spouses, the husband acquires an unquestionable right to intercourse
with his wife and it is her duty to submit to his wishes. This right cannot be retracted
by the wife as husband acquires it by mutual matrimonial consent. However, in US
the women activists apposed this age-old traditional view and raised their voice for
elimination of marital rape exemption clause on the ground of gender equality.
Marital rape, though a scar on the face of civilised society, has not been
criminalised in India whereas US and other civil western countries have recognised at
as an offence and the judiciary played an active role in providing relief to the women
raped by their husband.
Though, the Indian law recognises domestic violence against women as an
offence but it is mainly confined to physical harm or torture rather than the sexual
abuse of wife.
Marital rape has broadly been sub-divided into three categories, namely
(1) rapes involving a degree of violence (2) Rape involving force only and (3)
Sadistic rape in which in addition to actual rape, the victim is forced to do acts
designed to further humiliate herself. It is also known as "obsessive rape' or
pornographic rape.
293AIR 2008 SC 582.

294 Debdatta Das: Marital Rape; The Assassination of a women's Dignity (The Indian Police
Journal, Vol. LVII No. 2 Apl-June, 2010.
Sexual Abuse of Children

Before concluding the discussion on sex crimes, a word must be said about the
sexual abuse of children and the problem of paedophilia. Although the Goa Children's
Act, 2003 contains provisions relating to prevention of sexual abuse of children in
general and tourism related paedophilia in particular, a national law on grave sexual
offences was wanting. In the context of children, sexual assault may be classified as
grave sexual assault, sexual assault and incest. 'Grave sexual assault' covers all form
of sexual intercourse including oral sex and anus sex as well as offences such as
making children pose for pornographic films, making children to have sex with each
other and deliberately causing injury to sex organs of a child. The 'sexual assault'
includes showing children pornographic pictures and exhibitionism.295
Child's Right Act, 2006
However, realising the gravity of the offences relating to sexual abuse of
children, the Central Government has brought a comprehensive Legislation called
'The Commissions for Protection of Child Rights Act, 2006 which came into force on
20th January, 2006. The Act provides for the constitution of a National Commission
and State Commissions for protection of child rights and Children's Courts for
providing speedy trial for offences against children or of violation of child rights and
for matters connected therewith or incidental thereto.
Section 13(l)(d) of this Act casts a duty upon the Commission to examine ail
factors that inhibit the enjoyment of rights of children affected by terrorism,
communal violence, riots, natural disaster, domestic violence, sex abuse, trafficking,
maltreatment, torture and exploitation, pornography, prostitution etc. and recommend
appropriate remedial measures. The Commission shall have power to inquire296 into
such cases and forward297 them to Magistrate having jurisdiction to try the same.
For the purpose of providing speedy trial of offences against children or of
violation of child rights, the State Government, with the concurrence of the Chief
Justice of the High Court may specify at least one Court of Session to be a Children's
Court298 to try such offences. The Act further provides for appointment of special
public prosecutors for the Children's Court.299
It would be seen that in the Child's Right Act of 2006, as the title itself suggests
the focus is on constitution of National Commission and State Commissions for
protection of rights of child in general and right of child against sexual abuse is only
one of such rights. But, the Goa Children's Act, 2003 exclusively deals with sexual
abuse of children and a wide range of related activities that an offender may commit.
It not only recommends punishment against children's sexual abuse but also attempts
to involve different sections of society to play an active role in protecting children and
preventing their sexual abuse. It is in this sense that the Goa Children's Act may be
treated as comprehensive as compared with the Central Act of 2006.
Concluding observations :
It may be stated that like any other crime, sex crime cannot be eradicated
295 The punishment for grave sexual assault under section 8(2) of the Goa Childrens Act, 2003 is
seven to ten years imprisonment and a fine of two lakh rupees while the punishment for sexual
assault is a sentence upto three years and a fine of one lakh mpees. The offence of incest is
punishable under the Act with one year's imprisonment and a fine of one lakh rupees.
296 Section 14(1) of the Child's Right Act, 2006.
297Section 14(2).
298 Section 25.
299Section 26. The Goa Childrens Act, 2003 also provides for the constitution of Childrens Court to
try offences against children under Section 8(27) of that Act.
Sexual Offences 203

completely. The modern changes in living style have contributed to stimulate sex
crime in varying degrees. It is, therefore, necessary that apart from the legal
provisions various other effective measures should also be utilised for repressing sex
delinquency. It may be suggested that the State Department of Family Planning be
assigned the additional responsibility of warning the public about the evil
consequences of illicit sex-indulgence and mobilise public opinion against this
menace through intensive propaganda. If sincere efforts are made to appraise people
of the various venereal diseases which the spouses are likely to contact as a result of
excessive sex indulgence and the miseries of loss of health and wealth involved in
undesirable sex-behaviour, there is no reason why sex-crime cannot be eliminated
from society. Educational institutions should also play an active role in mitigating this
social evil by educating the youngsters to refrain from undesirable sex involvement
because of the seriousness of consequence ensuing therefrom. Adolescents must be
made to know the realities of life and choose for themselves the rightful path which
can make them a useful member of society. Dissemination of correct knowledge
about sex, establishing Marriage Council Bureaus for proper help and guidance of sex
psychopaths and creating healthy conditions in which innate sex desire of men and
women can be satisfied without any fear of reprobation, may also help in
reducing sex crime.
The role of law enforcement agencies such as the police, the lawyers, the
magistracy, the rehabilitation centres as also the voluntary social organisations in
combating sex criminality hardly needs to be emphasised. Law is only an instrument
through which crimes can be prevented provided the law-enforcement machinery
implements the provisions of law efficiently. This is possible only with the active co-
operation and support of concerned agencies. Unfortunately, general lack of
understanding and coordination among the police, the prosecutors and other agencies
and a tendency to criticise each other's performance is hampering the suppression of
sex crime and conviction of sex offenders.
Since crimes against women are partly the result of social system and partly the
outcome of individual pathologies, a reformatory attitude towards female victims
may be helpful in achieving the desired results. The rehabilitation has to be four-fold
viz. physical, mental, psychological and social. Physical rehabilitation involves
creating proper living and working conditions to the victimised female. Mentally,
she needs help to restore her lost esteem. Psychologically she needs help to
overcome her depression and insecurity; and socially, she needs help to be accepted
back in the social fold.300
The pertinent question which needs to be answered is whether the sex deviates
should be "punished” or "treated". It must be reiterated that punishment implies
elimination of criminals so that society is protected from contamination.
Undoubtedly, sex offenders are a potential danger to society and therefore they
should be kept at arms length. But the question arises as to how long are we going to
hold them in cells or prisons ? That apart, most of the sex offenders are
psychologically or physiologically abnormal persons and suffer from weakness of
mind which deprives them of the vitality which could have saved them from falling a
prey to sex tension. It would, therefore, be proper that effective treatment methods
be employed to cure the sex offenders rather than subjecting them to rigours of
punishment. This, however, does not mean that sex offenders should be kept in bare
custodial confinement like "patients" but some sort of psycho-therapic treatment
should be given to them so that they are helped to be more discreet in overcoming
their guilt.
300 Dr. Puran Batria : Sex And Crime In India (1st Ed. 1992) p. 171.
It is significant to note that majority of the sex-deviants are passive or non-

aggressive by nature and therefore they are not difficult to handle. Under the
circumstances "treatment" appears to be the only appropriate method of handling
sexual offenders. The institution of marriage and religion should also be occasionally
used to inculcate the values of morality and mutual respect among sex deviants. It
must be remembered that the very fact of being identified and labelled as 'sexual
offender' makes it more likely that they will persist in crime. It would, therefore, be
beneficial to extend helpful support to these offenders by treating them humanly
rather than penalising them. It is heartening to note that Indian woman, by and large,
is retaining her ancestral virtue of self-sacrifice. Though she is fast imbibing the
western ideals and mode of living, she has not yet lost her moorings. Particularly, in
villages and rural areas, the influence of conventional morality in women-folk is still
great. The need of the hour is to retain the traditional institutions of marriage and
family and protect them from degeneration and destruction. Social awakening alone
may help in attaining this purpose through mass communication. The National
Women Commission and other voluntary women organisations can play a significant
role in this direction.
The emerging human rights jurisprudence at home and abroad requires all
public authorities to act not merely compatible with the global perception of the right
to live with human dignity but to resort to all possible means and strategies to
strengthen and ensure the fundamental right to life and liberty of a woman who is a
victim of rape.
In State of Maharashtra v. Madhukar Narayanthe Supreme Court, without referring
to Article 21, has held that even a woman of easy virtue is entitled to privacy and that
no one can invade her privacy as and when he likes. In another case i.e., Neera v. Life
Insurance Corporation,301 the Apex Court held that the right to privacy of women would
preclude such questions to be put to female candidates as modesty and self-respect
may preclude an answer. In the instant case, the petitioner, a probationer Assistant in
LIC gave a false declaration regarding the last menstruation period, during her
medical examination. The Court held that such clauses in the declaration intended
from the candidates were embarrassing if not humiliating, like the regularity of
menstrual cycle as it violates the privacy of the lady employees and, therefore,
ordered the deletion of such columns in the declaration.
The Supreme Court in its decision in the case of State of Himachal Pradesh v. Asha
Ram,302 recorded its displeasure and dismay at the accused father having raped his
minor daughter and observed that there can never be a graver and heinous crime than
the father being charged of raping his own daughter. He not only "delicts the law but
it is a betrayal of trust. The father is fortress and refuge of his daughter in whom the
daughter trusts." Quoting from its earlier judgment pronounced in State of Punjab v.
Gurmit Singh,303 the Apex Court observed :
"Rape is not merely a physical assault, it is often destructive of the whole
personality of the victim. A murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The court should, therefore,
shoulder greater responsibility while trying an accused on charges of rape and
sexual molestations."
Disposing of the appeal in Aslw Ram's case who was convicted of raping his own
minor daughter the Supreme Court enhanced the sentence from 5 years' rigorous
imprisonment to imprisonment for life and also enhanced the fine amount of Rs.
301AIR 1992 SC 1562.

302A.I.R. 2006 S.C. 381.
303(1996) 2 S.C.C. 384.
Sexual Offences 205

1,000/- to Rs. 25,000/-. The fine amount was to be paid to the prosecutrix. The State's
appeal was thus allowed and the accused was directed to be taken back to the custody
forthwith.
Mrs. Shere Hite, the noted writer on women's sexuality, has expressed a view in
the United Nation's International Conference held in Beijing in China304 from
September 4 to 15, 1995, that the problem of women's sexuality covers a large area of
violation of human rights. It is a blatant violation of women's bodily integrity. Double
standards seeing women's bodies and especially sexuality as shameful and
glorification of males over females has to be stopped forthwith. Citing an example she
says, "boys and men, women and girls, learn that menstruation must be kept secret,
and that girls should not be as sexual or expressive of sexual desires as boys. A boy
must express sexual desire to "be a man", but it is something immoral or indecent in
case of a girl. This disparity must go and women's sense of selfworth be identified.
In the ultimate analysis, it may be concluded that sex itself can be a cause of
crime, or it may also provide a soothing ground for generating other crimes. Some of
the offences which the sex offenders generally commit or generate include swindling
their customers or blackmailing them, transmitting venereal disease, disturb family
relationships, expose youngsters to deviant life styles, encourage alcoholism,
disorderly conduct, smoking and demoralise the society. Obviously, law alone cannot
deal with these types of crime or deviance without active support from the public,
especially the social activists.
304 The First UN International Women's Conference was held in Maxico in 1975, the Second in
China in Sept. 1995 and the latest one was held in Toowoomba (Queensland) Australia from 26th
to 29th September, 2007.
Chapter XII
,
Alcoholism Drug Addiction and Crime
Alcoholism and drug addiction may be conceptualised as crime without victim,

addict himself is the victim who becomes a prey of its misuse This
i.e., .305
devastating melody is eroding the roots of social, economic and cultural fibre of
Indian society. It gives rise to criminality and criminal behaviour which eventually
leads to social disorganisation.
Alcoholism and drug related offences being victimless crime, they fall in the
category of public order crimes or consensual crimes. Siegel (2004) has defined
victimless crime or public order crime306 as "crime which involves acts that interfere
with the operations of society and the ability of the people to function efficiently." It
must, however, be noted though alcoholism and drug addiction are victimless crime,
they do carry with them secondary victims such as family, dependents, friends,
acquaintances etc.
Alcoholism and drug habituation has been prevalent in most societies over the
ages because of their allegedly pleasurable and relaxing effects or as a means of
relieving physical tensions, fatigue and as stimulant to withstand adversities.
However, with the unprecedented expansion of pharmaceutical industry, the use,
abuse and misuse of alcohol and drugs has increased307 leaps and bounds covering
almost all sections of society.
Alcoholism and drug addiction are indicative of the irresponsibility and
weakness of the character of the persons using these intoxicants. The relation
between alcoholism and various aggressive and criminal acts is often confirmed by
police records and prison statistics which indicate that in the present day there is a
considerable increase in such alcoholic-criminal episodes.308 Experience has shown
that various preventive and punitive measures such as fine, imprisonment or
detention for drukenness and other disorderly behaviours have failed in eliminating
this menace.
It has been generally agreed that criminality in human beings is to be attributed
to their mental depravity. Persons with balanced emotional and physical health
normally do not indulge in criminality or aggressive conduct ; nor do they take to
alcoholism beyond control. Investigations made by sociologists and criminologists
on alcohol-crime relationship reveal that there is a close resemblance between the
structure of alcoholics and criminals. This
305 P. Kundram & V.N. Murty, "Drug Abuse And Crime : A Preliminary Study" (1979)
7 Indian Jour. Crime 65-68.
306 Some other public order crime (or victimless crime) are prostitution, homosexuality,
pornography, vagrancy, public drunkenness etc.
307 J.K. Mason : Forensic Medicine For Lawyers (1983) p. 251.
308Robert Seliger's Articles on "Alcohol and Crime" published in the Journal of Criminal Law and
Criminology XLI (May-June, 1950), pp. 24-31.
Alcoholism, Drug Addiction and Crime 209
proposition brings us to the following conclusions regarding the impact of

alcoholism and drug-addicts on criminality309 :
(1) crimes are often planned in liquor shops and bars where alcohol is sold.
(2) offenders generally consume liquor and alcohol or drugs to overcome
their inhibitions and emotional strains.
(3) the booty and gains of crime are often distributed and shared in liquor
or wine-shops.
(4) alcohol and narcotic drugs help to remove the element of self-criticism
from the criminal in relation to himself and his acts.
(5) juvenile delinquency and drinking are intimately connected.
(6) the illegality of purchase and possession of alcohol and narcotic drugs
make alcoholics or drug addicts delinquent ipso facto.
(7) alcoholism and drug addiction being forbidden by law, their
procurement gives rise to a number of related crimes such as illicit
spirit-distilling, smuggling of wine or intoxicating drugs, racketeering,
drug trafficking underhand deals in transmission of alcohol and
narcotics from one place to another and bribing the officials to escape
arrest and punishment.
(8) research studies have shown that alcohol is more contributory to
criminality than other drugs, probably because its legal and common
usage makes it readily available.
Of late, drug abuse seems to have become a fashioi) for fun to relieve
boredom, to get rid of tensions at home and in society, to feel good and high, to
revolt against establishment, to heighten sexual experience, improve studying and so
on.
Main Causes of Drug Addiction :
Alcoholics and drug addicts take to drinking or use of drugs for a variety of
reasons. The factors mainly responsible for the spread of this evil are
1. Rapid industrialisation and urbanisation have ushered a new way of life
with new values like permissiveness. As a result, the age-old
inhibitions, taboos and traditional social control mechanisms have
ceased to have force. Many cases of drug or alcohol addicts arise after
apparent failure in business or professional life.310 Unemployment is also
an important factor contributing to drug and alcohol addiction especially
among youths.
2. The lack of parental care and control partly due to working situation of
both spouses and disintegration of joint family system are also
contributory factors to encourage this vice. The manace of drug abuse is
more common among the middle, upper-middle, and high economic
class families. Urban areas seem to be more affected by this vice.
3. The recent developments in pharmarceutical and medical sciences have
provided scope for production of a variety of toxic synthetic substances.
This has contributed substantially to drug-abuse and addiction.
4. People often take drugs for relief from painful illness and ultimately get
addicted to it. Besides, there are some addicts whose neurological
heritage is such that they find it difficult to survive without the use of
309 Ibid., p.p. 24-31.

310 H.R. Sharma & D. Mohan "Drug Abuse in India : Prevalence, Pattern, Policy and
Prevention" Social Defence Vol XVI No. 63 (1981) p. 63.
alcohol or narcotic drugs and this ultimately makes them habitual

alcoholics or drug addicts.
5. Frustration and emotional stress due to failures, sorrows or miseries of
life, diverts people to join the company of addicts. For them drugs or
alcohol is a medicine—a blessing in disguise.311 In course of time they
become addicted to this vice.
6. Hippie-culture also detracts youngsters to drug addiction and they start
it as a 'fun' or enjoyment. They start consuming drugs or alcohol on an
experimental basis out of fun and enjoyment. The frequency of
consumption gradually increases due to its narcotic effect and finally a
good majority of them turn out to be drug addicts and habituals.
7. The lack of knowledge of child psychology and communication-gap
between parents and young addicts are also contributory factors for
drug-abuse and alcoholism. People who do manual work often believe
that use of drugs such as alcohol, opium, gcinja, tobacco, gutka etc.
provides them added strength and vigour to withstand hard labour. This
delusion of physical vitality by use of alcohol or narcotic drugs
ultimately makes them confirmed addicts.
8. Social disorganisation is also a contributing factor for the menace of
drug abuse or misuse. Frequent family strifes and breakdowns due to
poverty, temperamental differences, neighbourhood influences etc. may
divert a person to alcohol or drug consumption to overcome his
domestic and family problems. This may itself be a cause of tension and
quarrel in the family. Such persons ultimately fall a prey to drug abuse.
The process of alcoholism and drug-addiction sets in when a person knowingly
or unknowingly begins to consume alcohol or narcotic drug as a medicine for a
sound sleep at night or to get stimulation for work or to get relief from domestic
problems or to repress depression, resentment, or to get rid of disturbing mental
restlessness and so on.312 He prefers to remain in the world of imagination rather than
facing realities of life. Gradually, he becomes addicted to alcohol or drug
consumption and his dependence on these intoxicants increases at a relatively faster
rate. Finally, he reaches a stage when he cannot live without wine or drug since it
becomes his life-habit.
It must be stated that the use of opium and cannabis in the form of gnnja and
bhang was tolerated in India and had a religious sanction but addiction to them was
confined to aged persons only. In modern times addiction has affected the Indian
society to such an extent that even journalists, politicians, educationists etc. have
started talking about this problem, particularly in college campuses. The spectrum of
drugs abuse today is very wide covering the drugs of plant origin and a number of
synthetic drugs of varying potency.
The National Committee on Drug Addiction was set up by the Government of
India in 1976 to enquire into—
(i) the extent of addiction to drugs in the country ;
(ii) to determine motivation for drug addiction ;
(iii) to identify types of drugs that are misused and suggest steps to prevent
misuse ;
(iv) to recommend suitable de-addiction and rehabilitation programmes.
311 George Caltin. E.G : Alcoholism In the Encyclopaedia of Social Sciences (1930) p.
155.
312Dressier David : Readings in Criminology & Penology (1966 Reprint) p. 103.
The Committee in its Report suggested establishment of a National Advisory

Board on Drug Control. It outlined the need for cooperation of Police, Excise and
Drug Control Departments to curb this menace and necessity for creating awareness
against drug addiction in the public. A Narcotics Central Board was established in
1985 under the Act.
International Perspective of the Problem.
With the rapid expansion of trade and commerce beyond national boundaries,
the problem of drug addiction and trafficking has become a global phenomenon.
Therefore, as a measure of drug control, a thirteen-nation international conference on
narcotic drugs was held in China313 in 1909. Thereafter, the International Opinium
Convention called the Hague Convention on Narcotics was held in 1912 which was
the first drug traffic control treaty at the international level. This was followed by a
series of conventions and declarations which were made to combat illegal drug
trafficking.
One of the most important conventions on drug abuse was the Single
Convention on Narcotic Drugs, 1961 (SCND) which attempted to simplify and
consolidate international drug control machinery. The convention codified all the
existing multi-national treaties and merged the Permanent Central Board and Drug
Supervisory Board into a Single International Narcotics Control Board (INCB) in
1961. It has been assigned the responsibility of ensuring the balance between supply
and demand for narcotics purposes and make all out efforts to prevent illicit drug
cultivation, manufacture, traffic and misuse.
Article 38 proi’iso (1) of SCND insists that facilities for medical treatment, care
and rehabilitation of drug addicts should be globally expended.
The Protocol of 1972 brought about a further improvement in SCND. It came
into force on August 8, 1975. It insists on prior authorisation for the cultivation,
production, manufacture, conversion and compounding of, preparations, trade,
distribution and import or export of drugs. It also emphasised the need for treatment
and rehabilitation of drug abusers as an alternative to their incarceration in prison.
Under the Protocol, the International Narcotics Control Board (INCB) was assigned
the responsibility of ensuring a balance between supply and demand of narcotic
purposes and for endeavouring to prevent illicit cultivation, manufacture or use of
drugs.
Another International Convention on prevention, abuse and illegal trafficking in
narcotics called the Convention on Psychotropic Substances was signed in 1971
which came into force on 16 August, 1976. The convention has stressed the need for
prevention of abuse of psychotropic substances and early identification, treatment,
education, after-care, rehabilitation and social reintegration of the persons involved.314
This was followed by setting up a five-years action programme by the General
Assembly of the United Nations in 1981 under the International Drug Abuse Control
Strategy. It provides for a number of measures dealing with drug control, drug
trafficking and treatment and rehabilitation strategy for addicts. It also seeks to
intensify efforts to dismantle illegal drug-trafficking gangs and organisations.
An International Conference on Drug Control was held in Vienna from 17 to 26
June, 1987 under the auspices of United Nations. It focused attention on drug control
policies and, strategies which could be enforced at the national, regional and
international level to prevent drug abuse and illegal trafficking of narcotic
substances.
313 It was termed as Opium Commission in China (1909).

314Art. 20(1) of the Convention on Psychotrophic Substances Act, 1971.
It must be stated that drug abuse is not only a national problem but it has
transgressed the national boundaries and has become an international problem. It has,
therefore, been realised in recent years that no country can deal with this problem of
abuse of drugs without international co-operation and action. The Commission on
Narcotics Drugs in close colloboration with the World Health Organisation adopted a
convention on psychotropic substances and India has enacted the Narcotic Drugs &
Psychotropic Substances Act, 1985 to prevent drug-addiction. This Act was amended
in 1988 and called the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988. It provides for death penalty on conviction for a
second drug trafficking offence.
An International Conference on Global Drugs Law was organised by the Indian
Law Institute, Delhi, in co-sponsorship with the UNDCP315 and the International Law
Association (India Regional Branch) from February 28 to March 3 in 1997. The
conference reiterated its faith in human dignity and the legitimate aspiration of
humankind for a decent life. It emphasised the need for generating universal
consciousness of, and determination to battle, the drug problem in all its pervasive
forms at the national, regional and international level. The Conference, inter alia
resolved :—
1. to accelerate the struggle against the scourge of drugs and to adopt
measures to strengthen international co-operation and multi-disciplinary
approach to tackle the problem.
2. to formulate effective strategy against drug-abuse, illicit production and
trafficking within the framework of guidelines in major international
conventions;
3. to prevent and control the supply of drugs to affluent nations as the bulk
of demand for drugs comes from these nations;
4. to formulate a comprehensive system for the collection, evaluation and
dissemination of relevant data relating to drugs;
5. to workout an effective education programme for counteracting drug
abuse worldwide and preparing training and educational
material for the young people to assist them in developing vocational and
self-employment opportunities;
6. to ensure proper enforcement of a system of the international control of
narcotic drugs which includes control of cultivation, production,
manufacture, use, demand and supply of drugs for illicit use;
7. to ensure absolute curtailment of the enormous funds generated from the
drug trade by means of money laundering;
8. to create a special task-force of committed honest personnel having the
sanction of relevant government agency to infiltrate the network of drug
trade operators and bring them to justice.
The participants of the Conference recognised the fact that fight against drug-
related crime is undermined by corruption, therefore, the State must review the
effectiveness of their national laws and strategies against corruption.
Illicit Drug Trafficking
Illicit drug trafficking is so complex in nature that it involves a large variety of
drugs from many sources throughout the world. It not only violates national drug
laws and international conventions but also involves several other allied activities
such as racketeering, conspiracy, bribery and corruption, tax-evasion, illegal money
315 UNDCP stands for United Nations International Drug Control Programme.
transactions, violation of import and export laws, crimes of violence and terrorism.
The wide range of illegal and criminal activities associated with illegal drug
trafficking poses a threat to law-enforcement agencies throughout the globe.
Considering the ever-increasing demand and consumption of liquor, opium,
heroin etc. and huge profit in their illicit trafficking, the legislative control measures
have not been able to countenance the menace, particularly because big tycoons and
drug syndicates having international linkage are involved in this illegal trade.
In the Indian context, the geographical location of this country is most suited to
the unabated inflow of drugs and illicit drug products by sea and land routes from all
sides. Iran, Afghanistan and Pakistan which are the largest producers of opium,
manufacture heroine from it and the same is smuggled into India. So is also the case
with North-East neighbouring countries namely, Burma, Thailand and Laos. The
State of Bihar provides entry-route for gcinjci from Nepal. Quite a large quantity of
opium and cannabis are being illicitly cultivated within India itself, besides the
licensed cultivation for medical purposes.316 All these factors cumultatively provide a
fertile ground for illicit drug trafficking both within and outside the country.
On-Line Drug Trafficking—A Menace
The International Narcotics Control Board (INCB) in its annual report released
on 20th February 2001 observed that internet is fast becoming a growing source of
on-line trafficking since it provides an easy access to controlled substances including
narcotic drugs and psychotropic substances like benzodiazepines, barbiturates and
various amphetamine-type stimulants. While expressing concern over on-line
shopping the report said that widespread overuse of controlled drugs to treat
psychological problems caused by social pressures needs to be restricted by legal
measures. With the expansion of internet shopping in recent years not only the
internet sales have expanded but some companies are openly advertising on internet
that they provide controlled drugs without prescription. The remedy suggested by
INCB is that countries should introduce legislative changes to allow prosecution of
illicit internet drugstores. Shri C. Chakraborty, member of INCB has suggested that
the government should take preventive measures to restrict the "excessive
availability" of controlled drugs on-line shopping as over-medication leads to untold
physical and mental suffering.317
Classification of Drugs
The International Convention on Drugs to which India is a signatory has
classified drugs under two categories :—(a) Narcotic Drugs; and (b) Psychotropic
Substances.
(a) Narcotic Drugs.—The main drugs covered under this head are the
following :—
(i) opium318 and its derivatives like brown sugar, heroin and codeine,
(ii) cocoleaf, cocaine ;
(iii) cannabis, cannabis resin, extracts and tinctures ;
(iv) methadene, pethedine, hebaine.
316 S.V. Joga Rao : Law & Policy on Drug Trafficking—A Phenomelogical Study 35
JILI (1993) p. 56-57.
317 Annual Report of the International Narcotics Control Board dated 21st February,
2001.
318 Opium is taken from opium poppy called "papnver somniferum" and is generally used as pain
killer and hypnotic in certain regions of India.
(b) Psychotrophic Substances include valium, daizepam, tidijesic, morphine

etc.
Alcoholism
Like drug-addiction, alcoholism also causes disillusionment, unhappiness and
troubles in family life. An alcoholic finds it difficult to adjust with other people and
so are the others uncomfortable with him due to his drinking-habit. The mental
faculty of an alcoholic does not function in a normal way with the result he loses
self-control and often behaves improperly at times picking up quarrels, accusing,
abusing or insulting others or committing acts of aggression and violence. An
alcoholic, while he is drunk is an irresponsible person faultering and pampering in
many ways and prone to criminality at any moment. The acts of indecency or assault
are usually committed by the persons who are under the influence of liquor or
narcotic drugs.
According to sources used for National Survey on the Extent, Pattern and
Trends of Drug Abuse in India, (2004), alcohol is the most commonly used substance
for addiction. Surprisingly, use of alcohol by women has proportionately increased
over the years. The number of unmarried girls and women alcohol users outweighs
those who are married and living a family life. Though significant proportion of
women express serious concern for drug abuse and alcoholism by their family
members and urge them to quit drugs and even threaten them to leave the family but
their efforts have no effect on drug addicts of the family, particularly the male
members. The burden on woman due to alcoholic family members and socio-
economic consequences thereof has an adverse impact on their family life and many
a times leads to quarrels, divorce or even breaking of families. A complete ban on the
sale and consumption of alcohol like the one as adopted by the State of Gujarat is
perhaps the only solution to this nation-wide problem of alcohol abuse.
It is therefore, evident that abuse of drugs319 and alcoholism spells disaster not
only for the addict but also to his family and the society as a whole. It affects the
individual's health and upsets his family life. That apart, these evils give rise to law
and order problems, reduction in economic production and retards human welfare.
Some of these drugs alter the senses while others cause depression.
Drug-Addicts and Crime
Besides alcoholism, drug-addiction is also closely interconnected with crime.
Compulsion for narcotic makes every drug-addict a law-violator and criminal. Mere
possession of narcotic is also an offence punishable under the law and therefore
drug-addiction by itself adds to the crime-statistics.
American researches on relationship between drug-addiction and crime have
shown that narcotic addicts often commit predatory crimes such as larceny, shop-
lifting, stealing, burglary, robbery etc. The drug-addicts generally lead a criminal
life. It is often noticed that addicts of narcotic drugs mostly resort to theft to obtain
money for procuring drugs.320 Most persons become delinquent after they have started
use of narcotic drugs. Many violent offenders take narcotic drugs to get stimulation
and courage and commit violent acts such as murder, burglary, extortion, rape etc.
which they might not otherwise commit when not drugged.321 Dr. Kolb, however,
disagreed with this view and suggested that crimes committed by opiate addicts are
319 These include drugs such as morphine, opium, heroin, cocaine, hashish, brown sugar
etc.
320 Special Report on Heroin Addiction in Chicago (1957), p. 43,
321 Mauter & Vogel : Narcotics and Addiction (1951), p. 211.
generally of a parasitic, predatory and non-violent type. If drug addicts commit

violent crimes it is not because they are addicts, but because so many of them are
psychopaths. Dr. Kolb further observed that narcotics like opium, heroin, morphine
and cocaine change the violent fighting psychopaths into dull, cowardly non-
aggressive idlers. In his view, drug addiction eliminates or at least reduces sex-desire
of the addict.
Another question which is too often raised in context of criminal traits of drug
addicts is whether criminality in them precedes or follows addiction. That is to say,
whether the addicts are already delinquents before they take to addiction or they
become so subsequently. Conflicting views have been expressed on this point by
Prof. Percor and Dr. Kolb. An intensive study of 1,036 addicts undertaken by Prof.
Parcor in Lexington that seventy-five per cent of them had no history of delinquency
prior to addiction.322 Anslinger, however, has expressed a contrary view and suggested
that drug-addicts are already criminals before they take to addiction.323 Dr. Kolb also
studied a group of 119 persons who became drug-addicts as a result of medical
prescription of narcotics for ailments and found that ninety of them were without any
prior career of delinquency324 and crime. The studies conducted by the researchers of
New York and Chicago Universities, however, suggest that delinquency precedes as
well as follows addiction. Be that as it may, it is now generally agreed that after
addiction, the criminal hardly sheds off his habit of delinquency as he adopts it as a
way of life with his advancing age. Thus, most addicts who are adolescent offenders
turn into habitual and professional criminals when they grow older in life.
A British study reveals that the problem of criminality has been further
aggravated by drug addiction. The British Health Education Council has estimated
that consumption of alcohol in Britain increased by 37 per cent and the number of
alcoholics has increased by 47 per cent.
Alcohol or drug abuse may result in mental impairment. If a person, through
the use of intoxicants or drugs, is rendered insane, the M' Naghten's rule,325 shall apply.
That is, defence of insanity will be available to him if he proves that he was under a
insane delusion and did not appreciate the nature or quality of his actions or did not
know that what he did was wrong. However, this defence will not be available if the
use of such substances induces a temporary insanity in persons who are mentally
unstable but not normally insane.326
The British criminal law recognises two broad categories of drugs for the
purpose of defence of insanity, namely, (i) those which are known to have effects
which may make the taker more-aggressive and unpredictable; and (ii) those, like
valium, which are not normally associated with problematic changes in behaviour. It
is in the latter case that a defence of temporary mental impairment may possibly be
acceptable.327
The U.N. Report on abuse of drugs has concluded that the relationship between
drugs and misery and crime compelled the governments to interfere in their use and
sale.328
322 Percor's article entitled "A study of Drug Addicts" published in Public Health
Reports Supplement No. 143 (1943).
323 Anslinger, H. J. : The Traffic in Narcotics, New York (1953), p. 170.
324 Kolb's article on "Drug Addiction" A Study of some Medical Codes published in
Archives of Neurology & Psychiatry, Vol. 20 (1928), p. 171.
325(1843) 10 CL & F 200.
326 Attorney-General for Northern Ireland v. Gallaghar, (1963) AC 349.
327 R. v. Hardie. (1985) 1 WLR 64.
328 Facts Sheet No. 1. National Council on Crime & Delinquency; USA (1983).
Global statistics indicate that various parts of the world are drastically affected
by drug hazard and the problem has reached alarming dimensions particularly in
Middle East, South-East Asia, Eastern Europe, Canada, Mexico, U.S.A., Central
America and Africa. Heroin which was practically unknown in Africa, is now
extensively being used (abused) in Mauritius and Nigeria. Ghana has also become a
centre of drug abuse in recent years.
Since Bolivia, Peru and Columbia commonly known as "Cocaine triad" are
largest cocaine producers in the world, they are obviously the largest supplier of this
narcotic to other parts of the world. In Brazil also, illicit drug trafficking has lately
increased due to its extensive borders with Columbia, Peru and Bolivia. It has now
become the largest manufacturer of acetone and elhylether.
Indian Law
In view of the alarming increase in drug menace in India, the Parliament
enacted the Narcotics Drugs & Psychotrophic Substances Act, 1985 which was later
amended and called the Prevention of Illicit Traffic in Narcotic Drugs &
Psychotrophic Substances (Amendment) Act, 1988 and came into force on July 4,
1988. The Act emphasises on the preventive aspect of drug evil and covers a wide
list of substances that are recognised as narcotic drugs. It seeks to prevent people
from the dangers of drug-abuse. It was for the first time in India, that legislation
recognised a wide list of substances that were categorised as dangerous drugs.
The main policy underlying the Act is to prohibit supply and distribution
(trafficking) of prohibited drugs, for which minimum sentence of ten years, which
may extend to 20 years, with a minimum fine of rupees one lakh, and a maximum
upto two lakhs has been prescribed. The Act makes no distinction between a drug
addict and a drug-trafficker in respect of punishment except under Sections 27 and
64-A of the Act.
Section 27 of the Act provides that if a drug addict proves that he possessed
drug of less than 'small quantity'329 as notified by the Central Government and that it
was for his own personal consumption and not for sale, he or she shall be liable to
punishment which may extend to maximum one year.
Section 64-A provides immunity to a drug addict from criminal liability
provided he proves that the offence is committed for the first time and he or she
voluntarily agrees to be treated for de-addiction in a recognised institution.
Section 71 of the Act provides for rehabilitative and reformative measures for
an addict whether he is an offender or not. The provision of this section seems to
have been based on the principle that the purpose of reformative penology is to
"destroy criminality in a human being without destroying humanity in a criminal".
This is undoubtedly, more in tune with the Supreme Court's view that "right to life
includes right to live with dignity" as envisaged by Article 21 of the Constitution.
Thus, the Act combines within it deterrance and reformative techniques of
punishment to tackle the problem of drug addiction and trafficking effectively.
It is significant to note that heroin addiction in India was virtually non-existent
before 1980 as per the enforcement agencies report. In 1989 there were an estimated
800,000 heroin addicts in India and their number has increased almost ten times in
1994.
In India also drug addic on is spreading like wild fire as could be seen from the
fact that heroin was being recently smuggled even in dead bodies. Two Nigerian
nationals were sentenced to 12 years' rigorous imprisonment and a fine of Rs. 2 lakh
by Greater Bombay Principal Judge Mr. S.A. Kirtikar on 25th Dec., 1987 under the
Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPSA) for smuggling huge quantity of heroin in dead bodies.
The Supreme Court of India, in Dciwood Lama's case,330 confirmed the
conviction of the accused, a foreign national under the Narcotic Drugs &
Psychotropic Substances Act, 1985, and sentenced him to 10 years' rigorous
imprisonment and to pay a fine of Rs. 100,000/- and in default further undergo
rigorous imprisonment for two years. In this case brown sugar was seized from the
329 Heroin commonly known as Brown Sugar or Smack—250 gms.

(ii) Hashish or charas—5 gms.
(iii) Opium—5 gms.
(iv) Cocaine—125 gms.
(v) Ganja—500 gms.
330 Wilfred Joseph Dawood Lama v. State of Maharashtra, (1990) Cr. L.J. 1034.
accused which is a narcotic drug and not a psychotropic substance. The Court further
ruled that under NDPS Act the police officer taking search is duty bound to inform
the person arrested that if he so desired he shall be searched in the presence of a
Gazetted Officer or a Magistrate.
In Birendra Kumar Rai v. Union of India,331 the Supreme Court further held that in
a case falling under the Prevention of Illegal Traffic in Narcotic Drugs &
Psychotrophic Substances Act, 1988, the accused should be sternly dealt with under
Section 3 of the Act and provisioiis of Article 22(5) of the Constitution of India are
not attracted in such cases. Therefore, the detention of the accused under the Act
shall not be held arbitrary.
In State of Maharashtra and others v. Nagpur Distillers,332 a two Judge Bench of the
Supreme Court took a serious note of liquor addiction among the younger generation
and urged the Government to work towards gradually reducing the consumption of
liquor. The Apex Court directed that the goal of prohibition of liquor as enshrined in
Article 47 of the Constitution casts a duty on the State atleast to reduce the
consumption in the State gradually so that the objective of prohibition may be
achieved during limited period of time.
The Court further observed that more and more of the younger generation in
this country is getting addicted to liquor. It has not only become a fashion to
consume liquor but it has become an obsession with very many youngsters. Surely
we do not need "Indolent nation". The Court lamented as to why the States in face of
Article 47 of the Constitution of India should encourage unrestricted trade in liquor.
Indeed, it is something that it is difficult to appreciate. The only excuse for the State
for not following the mandate of Article 47 is that this trade generates huge revenue
income and such revenue is being used for meeting the financial needs of the State.
While disposing of special petition filed by the State of Maharashtra against an
interim order of the Bombay High Court which had stayed the recovery of license
fee due from the Nagpur Distilleries for the manufacturing and sale of Indian made
foreign liquor under the Maharashtra Distillation of Spirit and Manufacture of
Potable Liquor Rules, 1996, the Supreme Court directed the Company to pay 50% of
the fee by December 31st of every year till the High Court decides the matter finally.
The decision of the Apex Court calling upon the States to bring about
prohibition of the consumption of intoxicating drinks and drugs which are injurious
to public health is a welcome step in implementing the Gandhian ideology of
prohibition and the State Governments must initiate appropriate step to comply with
this mandate.
Measures to Control Alcoholism & Drug Addiction
Efforts to control alcoholism and drug addiction have been made by introducing
stringent legislative measures to regulate the manufacture, transportation and sale of
these products and ban on their possession or use for other than medical and
scientific purposes. The use of alcohol and narcotic drugs for cure or treatment
purposes has, however, been permitted to cater to the legitimate needs through a
proper licensing system and regulatory measures. International control of narcotic
drugs is attained through International agreements and conventions reached between
nations under the United Nations Commission on Narcotic Drugs to which India is a
signatory.
Apart from regulatory measures to control alcoholism and drug addiction, the
system of licensing physicians to give drugs to addicts at a reasonable rate also helps
331AIR 1993 SC 942.

332 2006 (5) SCALE 77.
in preventing their exploitation from the underworld peddlers and thus mitigating
this crime.
In India, various legislative measures have been introduced to control
alcoholism and sale of alcoholic beverages. Several States introduced prohibition
laws during the preceding decades.333 The Prohibition Enquiry Committee appointed
by the Planning Commission in its report of June, 1955, recommended that the
scheme of prohibition and anti-drug should be integrated with the country's
development plans with a view to control alcoholism and improve the standard of
living of the people. The Committee also suggested that a Central Prohibition
Committee334 be established to review the progress of prohibition and co-ordinate the
related activities in different States. Accepting the recommendations of the
Committee the Lok Sabha by a resolution passed on March 19, 1956 made
prohibition an integral part of the Second Five-Year Plan. In result, several States
introduced regulatory measures to curb the tendency of alcoholism. Some States
resorted to complete prohibition while others preferred to follow a phased
programme.
Despite these prohibitory measures to control alcoholism, the consumption of
liquor and other intoxicating drugs has hardly been reduced. The theory of creating
scarcity of liquor by prohibitory laws with a view to discouraging 'drinking' habit has
not yielded desired results. On the contrary, demand for liquor has all the more
increased335 and opened new vistas for blackmailing, smuggling and illicit distilling.
The Government have realised that strict laws prohibiting sale and consumption of
alcohol have not delivered the goods and the policy needs to be reviewed once again.
In fact, the consumption of wine and liquor has taken the shape of a fashion in
today's ultra modern societies. Therefore, it cannot be curbed by prohibitory laws
unless people who habitually drink volunatrily give it up. It is for this reason that
many States have withdrawn their prohibition-laws and are content with a balanced
regulatory policy under which liquor is available for sale only in licensed shops at a
fair price. The heavy loss of revenue due to "dry-laws" is perhaps the real cause
which has prompted the States to withdraw 'prohibition'. Presumably, the State
Governments prefer to risk the dangers of alcoholism rather than losing crores of
rupees by way of revenue. In result, the liquor industry has thrived in huge
proportions and has gained importance among the public in spite of continued
opposition.336
As stated earlier, Article 47 of the Constitution of India contains a mandate
relating to policy of prohibition. It casts a duty on the Union and the States to initiate
adequate measures to implement this directive principle for improvement of public
health. This subject is at present in the State List. But in view of the laxity on the part
of State Governments to implement the policy of prohibition on liquor, it is desirable
that a national policy on the subject be framed. This would obviously require the
transference of this subject from State List to the Union List as a Central subject. The
consumption of liquor at public places, functions, farewells and receptions etc. must
be totally banned and violation of liquor laws should be severely dealt with.
333 Art. 47 of the Constitution of India requires that the State should endeavour to bring about
prohibition of intoxicating beverages and drugs which are injurious to public health.
334 The Central Prohibition Committee was set up by the Ministry of Home Affairs in
1960 to intensify the prohibition campaign.
335 The Unrestricted depiction of drink-scenes in almost all the T.V. serials is a
contributory factor to this ever-increasing evil. It needs to be strictly banned.
Enforcement Agencies
The entire gamut of legislation in India is directed against illicit trafficking in
drug and alcoholic substances. The machinery utilised for the purpose at Central level
includes the Department of Customs, Central Excise Narcotics Commissioner,
Central Bureau of Investigation, Central Economic Intelligence Bureau, Directorate
of Revenue Intelligence, Border Security Force and the Drugs Controller. At State
level the State Excise, Police and Drug Control authorities control the menace of
drug addiction and alcoholism.
In order to co-ordinate the activities of the various enforcement agencies
involved in the anti-drug trafficking, a Central authority called the Narcotic Control
Bureau with a wide range of functions has been set up. The main functions of the
Bureau are—
(1) co-ordination of all enforcement actions by various Central and State
authorities.
(2) implementation of counter measures against illicit drug trafficking under
international protocols, conventions and treaties.
(3) assistance to the concerned authorities in foreign countries.
The NDPS337 Act has provided for the establishment of special courts for
expeditious trial of drug addicts and traffickers.
Particularly, the problem of use and abuse of drugs and trafficking in drugs has
wide ramifications. The organised criminal gangs in smuggling of drugs operate
across national frontiers. The United Nations Commission on Narcotic Drugs and the
International Narcotic Control Board are the international organisations which are
seized with the problem of eradication of drug addiction. The main function of the
international bodies is to provide machinery for giving full effect to the international
conventions relating to narcotic drugs and to provide for continuous review and
progress in the international control of these drugs.
An unprecedented convention against drug trafficking was adopted by
consensus in Vienna on December 19, 1988 by 108 countries seeking better
international co-operation in bringing drug-traffickers to justice. It was a major step
towards solving the 'global crisis' of today's drug problems. It was characterised as a
"major achievement" in international co-operation. The convention, however,
regretted that signatories could not agree on the mandatory extradition of drug
trafficking nationals to third countries wanting to prosecute them.
The Narcotics Control Board (NCB) in India has suggested that person
convicted of drug crimes should automatically forfeit any property he or she acquires
with illegal drug money.
It would not be out of place to mention here that corruption which is rampant
among the enforcement agencies because of the temptation of economic advantage is
also one of the contributory factors for inadequate enforcement of the NDPS Act.
Drug traffickers generally operate and carry on their nefarious activities in close
liaison with the concerned officials or the enforcement agencies paying them
handsomely for the illegal favour shown to them. The so called 'deal' being quite
attractive, the officials get lured by the temptation.
The lack of adequate training to the concerned officials in skilful investigation
of drug-trafficking cases often leads to lacunae and loopholes in the procedure of
investigation which enables drug peddlers and addicts to escape prosecution. That
apart, lack of motivation on the part of enforcement agencies is also one of the
causes for the inefficient implementation of the NDPS Act.
337Narcotic Drug & Psychotropic Substances Act, 1985.

Thus, it would be seen that despite these efforts, the sale and purchase of
narcotic drugs as also the alcohol is a major crime-problem which perturbs the law
enforcement officials who are concerned with prevention of crime. Systematic
rackets operate throughout the country to supply liquor and other narcotic drugs to
alcoholics and addicts. Those involved in these illegal activities earn huge profits.
Even international gangs dealing with this contraband traffic are known to be
operative throughout the world.338 New’s regarding raid cases in which narcotics
worth lakhs of rupees is seized by the Excise or the Customs Department are often
seen in papers and magazines. Commenting on this aspect of the problems, Donald
Taft observed that many crime-problems in relation to alcoholism and drug addiction
are not so much drug created problems as law created crime problems.339 After all, the
harm caused to addicts and their families on account of these ill-habits is far greater
than the injury resulting therefrom to the society. Perhaps, some sort of moral
education and constructive use of regulatory licensing may help in curbing the
problem of alcoholism and drug-addiction to a considerable extent. In fact, there is
need to re-define the twin problems of alcoholism and drug-addiction in a socio-
medical perspective rather than considering it as a mere law enforcement problem.340
338 Taft Donald : Criminology (4th Ed.), p. 236.

339 Ibid. -
340 Sec. 86 IPC contains that a person voluntarily drunk will be deemed to have the same
knowledge as he would have had if he had not been intoxicated.
Remedial Measures :
Like any other socio-legal problem, the problem of drug addiction and abuse is
a complex problem. Besides the legislative measures for combating this menace,
some other remedial measures to help, to a large extent, in preventing this evil are as
follows :
1. There is dire need to evolve an effective control mechanism to check
unrestricted production of drugs and their sale a open markets. The
present licensing system has proved inadequate in exercising proper
control on the producers of drugs especially cannabis and alcohol.
2. As stated earlier, lack of proper enforcement and implementation of
related legislation on drugs has resulted into steady increase in drug and
alcohol menace. For this purpose, there is greater need to muster public
support and co-operation through active publicity programmes.
3. Perhaps the best remedy to contain this evil is to educate people about
the harmful effects of drug addiction and consumption of liquor. This
kind of education would be most beneficial for the adolescents and
school or college going students. The voluntary social organisations and
mass-media can also usefully impart this education. Scientifically
correct knowledge and education about evil effects of intoxication and
drug-addiction should, in fact, form a part of regular curriculum at the
school level.1
4. Early detection of drug addicts and their prompt treatment and
resocialisation may help to prevent drug addiction to a large extent. The
role of social organisations in rehabilitating the drug addicts need hardly
to be emphasised. The Government of India is providing liberal grants
to the State Governments to start drug de-addiction centres. As the
problem of drug abuse is very acute especially in North-Eastern Region,
the Government has decided to give 100 per cent assistance to these
States.
At present 94 Drug de-addiction Centres are being run in 20 States and in Delhi
by non-government organisations. The Ministry of Welfare provides grants to
voluntary organisations for this purpose. These Centres are actively involved in the
task of treatment and rehabilitation of drug addicts.
Drunkenness and Criminal Responsibility
Consumption of alcohol and intoxicating beverages results into drunkenness.
Therefore, a word must be said about 'drunkenness' as a defence for
criminal responsibility. Section 85 of the Indian Penal Code provides :
"Nothing is an offence which is done by a person who at the time of doing
it, by reason of intoxication, was incapable of knowing the nature of the act,
or that what he is doing is either wrong or contrary to law provided that the
thing which intoxicated him was administered to him without his
knowledge or against his will."
The above provision makes it clear that voluntary drunkenness is no excuse for
the commission of a crime. Nevertheless, drunkenness, does not, in the eye of the
law, make an offence more heinous. But if a man is made to drink through stratagem
or the fraud of others or through ignorance or any other means causing intoxication
1. 35 JILI. (1993) p. 271.


without the man's knowledge or against his will, he is excused. If a person, by the
unskilfulness of his physician or the connivance of his enemies eats or drinks such a
thing as causes frenzy, this puts him in the same condition with any other frenzy and
equally excuses him.
Section 84 of the Indian Penal Code provides immunity from criminal
responsibility on the ground of unsoundness of mind. Unsoundness of mind can be
caused due to madness, sickness, lunacy or intoxication. Thus, insanity brought on
by drunkenness is a good defence provided it is caused involuntarily.
A person is said to be insane when he does not, and cannot understand the
nature and quality of his act, or is incapable of knowing that what he is doing is
wrong or contrary to law. Intention or guilty knowledge being an essential element
of the crime, the fact that the accused was intoxicated at the time he committed the
act may be taken into consideration in deciding whether he formed the intention
necessary to constitute the crime.341
In order to make the point clear, it would be prudent to refer to the observations
made by the Court of Appeal in the famous case of Director of Public Prosecutions v.
Majewski.342 The facts of the case in brief were :
In this case M, a drug addict, took about 20 tablets of deszedrine and the next
evening he took about eight tablets of barbiturate, he then went into a public house
to take a drink. There was a disturbance and the landlord began to escort M's friend
to the door. The friend cried, "he's pulling me out." M got up, abused the landlord,
butted him in the face and punched a customer. The landlord and the customers
ejected the pair from the bar, but they re-entered by forcing the other door, and
breaking a glass panel. M then punched the landlord and started swinging a piece of
broken glass and injuring him. When the police arrived, a fierce struggle took place
to get him out. He shouted at the police, "You pigs, I will kill you all", and kicked
two of the officers. M said he could remember nothing of this incident. The Court
found on facts that M was able to respond to a request for assistance by his
companion ; he was able to direct his violence, and he was able to utter abuses and
issue threats before he attacked. Therefore, on these facts his plea of intoxication
was rejected.343
In R. v. Tandi,344 the accused, a woman who was habitually taking 'yarmouth' or
'barley' brand of moderate alcohol daily consumed a full bottle 'Vodka' a highly
intoxicant variety of liquor on the day of incident. Having lost control over herself
and her emotions, and in a fit of aggression, she strangulated her eleven years old
daughter to death. She raised the plea of insanity in her defence. But the Court
disallowed her plea and observed that she had deliberately and voluntarily consumed
a heavy dose of highly intoxicant 'Vodka' instead of her usual mild drink in order to
lose her mental ability to think and act rationally. Therefore, it was a clear case of
voluntary intoxication for which the defence of insanity must fail.
The High Court of Madhya Pradesh in Jetlmram Suklira Nagbanshi v. State,345
disallowed the defence of involuntary intoxication to the accused under Section 85 of
IPC and held that since the accused drank liquor at persuation of his father to
341 Maung Gyi v. Emperor (1913) 14 Cr. L.J.

342 (1977) AC 443.
343 See also the decision in Patrick Okeke v. State, (1966) All. NLR 275 decided by
Supreme Court of Nigeria.
344 (1989) All ER 267 (AC).
345AIR 1960 MP 242.
224 alleviate pain, the intoxication

Criminology and Penology
was neither without his knowledge nor could it be said
to be against his will. The Court observed that Section 85 lays down the principle of
English law formulated by Baron Parke in Pearson v. R.,346 wherein it was held that
"voluntary drunkenness is no excuse for crime. If a party be made drunk by strategies
or the fraud of another, he is not responsible". Likewise this defence may be allowed
to a person who had been made drunk by tine fraud of another or through ignorance,
or coercion practised by his friend or foe.
The Indian case of Manindra Lai Das v. Emperor347 is yet another illustration of
Court's attitude towards the defence of intoxication. In this case the accused, a police
officer, shot a prostitute with whom he was friendly and wounded her. He was
charged with the offence of attempt to commit murder under Section 307, I.P.C. and
voluntarily causing grievous hurt under Section 326. He set up the defence of
intoxication. The trial Judge in his direction observed :
"If an act is done in a state of intoxication and that intoxication is
voluntarily incurred he is equally liable before the law as if he had
done that act in a state of soberiety."
In an appeal before the High Court the direction was held to be wrong on the
ground that "knowledge" is not synonymous with intention. The Court held that
although voluntary drunkenness cannot be an excuse for the commission of an
offence yet where the question is whether the act was premeditated or done due to
sudden heat and impulse, the fact of the party being intoxicated, is held to be a
circumstance proper to be taken into consideration in mitigation of sentence
justifying leniency.
In Bablu alias Mubarik Hussain v. State of Rajasthan,348 the accused (appellant)
killed his wife, three daughters aged 9 years, 6 years and 4 years and son aged two
and half years on December 9, 2005. He was convicted by A.D.J. (Fast Track),
Nagpur for the offence under Section 302, I.P.C. and sentenced to death which was
affirmed by the High Court.
The appellant took the plea of drunkenness in his defence under Section 85,
I.P.C. which deals with act of a person incapable of judgment by reason of
intoxication. Rejecting his plea, the Apex Court held that Section 85 provides
defence to a person who shows that intoxication was against his will and or the thing
which intoxicated him was administered to him without his knowledge. There being
no specific plea taken in the present case about intoxication having been
administered without appellants knowledge simply means an ignorance of fact that
what is being administered to him is or contains or is mixed with an intoxicant. The
defence of drunkenness can be availed of only when intoxication produces such a
conduct as the accused loses the requisite intention for the offence. The onus of proof
about reason of intoxication due to which accused had become incapable of having
particular knowledge in forming particular intention is on the accused, which he
failed to prove in the instant case. The act of multiple murders of his wife and
innocent children done by appellant in a brutal manner and diabolic in conception
and cruel in execution and thereafter coming out of his house shouting that "he had
killed the five bastards by strangulation one by one", itself shows that he was well
aware of the nature and gravity of his inhuman act.
346(1835) 168 ER 1108.

347 AIR 1937 Cal 432.
348AIR 2007 SC 697.

The Supreme Court in this case noted that plea of drunkenness can never be an
excuse for the brutal, diabolic acts of the accused. There upholding the death
sentence awarded to the appellant by the trial court and the High Court, the Apex
Court held that the case squarely falls under the category of 'rarest of rare' cases to
warrant death sentence and therefore, appeal deserves to be dismissed.
The main problem in cases where intoxication is pleaded in defence is whether
the offender was really intoxicated at the time of the commission of the offence.
Medical evidence quite often helps to reach a correct conclusion in this regard. That
apart, a more recent device to determine the alcoholic condition of a person is
through the use of an instrument called "drunkometer". This apparatus detects the
presence of alcoholic percentage in the blood stream of a person and thus helps to
find out whether the person was under the influence of liquor or not at a given time.
It also helps in determining the extent of alcoholic condition of the drunken person
and its effect on his mental faculty.
Studies on drug addiction, however, reveal that the problem of drug abuse and
alcoholism is not confined to cities alone but it persists in rural areas as well. It
equally affects the economically depressed classes, middle classes, upper classes and
ultra-modem social groups. However, in cities mostly youth and students are
affected whereas in rural areas the agriculturists and labour classes are generally
addicted to drugs.
More recently, special treatment centres have been set up by social welfare
agencies to deal with alcoholics and drug addicts. In Bombay, The Samaritans a social
welfare agency is doing commendable work in the area of rehabilitation of drug
addicts. It is high time that Government should also consider setting up special
treatment centres for the rehabilitation of drug-addicts and alcoholics.
The modern processes of development have opened the floodgates of offences
and drug offences are no exception to this global phenomenon. It hardly needs to be
stressed that alcoholism and drug addiction are the off-shoots of modern fast
changing social patterns, hence these twin problems should be tackled in their socio-
legal perspective. Then only concrete results may be possible. Undoubtedly,
intensive surveillance on the border check-posts and awareness among the public
about the evil effects of drug and alcohol addiction have brought about a decline in
drug trafficking in recent years but much more still remains to be done in order to
eradicate this menace which is damaging the moral fabric of Indian society and
culture
Crime Statistics Chapter VIII
Crime statiannually in a ascending or new forms of

crime are emerging and the old ones are disappearing or assuming new dimensions.
According to Donald Taft, crime statistics are indicative of the general moral-tune of
a given society and throw light on the general efficacy of police, prosecuting
agencies and law courts. Therefore, the role of crime statistics in analysing causation
of crime and devising measures to combat criminality need not be over-emphasised.
The statistics of crime help the law enforcement agencies to spot out the
preponderance of crime at a particular time, place and region.
Some criminologists have expressed different views about the scope of criminal
statistics. Some of them assert that the data should mainly concern with offences and
offenders, administrative actions and decisions of the Courts, while others maintain
that it should only be limited to offenders and convicted persons. However, the
generally accepted view is that crime statistics should not only be confined to data on
offences and offenders but also include numerical figures pertaining to the criminal
law administration agencies such as police, prosecution, courts, parole and probation
services, juvenile delinquency, prisons, drug law violations and trafficking records
etc. The data so presented should be scientifically classified, tabulated and analysed
so as to present a realistic picture of crime situation of a particular region or country.
The periodical publication of such statistics is equally important so that the criminal
law agencies may utilise it to the best of their advantage for combating crimes.349
Emphasising the need for crime statistics in the field of criminology Donald Taft
observed that quantification which includes counting, measuring and collating the
phenomena under study is the basic process in modern scientific approach to criminal
science.350 Without this process, investigative efforts would hardly serve any useful
purpose. Crime statistics, therefore, involve compiling crime-record in order to relate
them to time, place and circumstances. It informs us about the magnitude of crime
and the extent to which they change in terms of time, place and location. Crime
statistics also depict the picture of distribution of crimes in different areas, regions,
and locations. It must, however, be stated that mathematical accuracy of crime
figures at a given place and time is rather difficult to ascertain. These statistics only
present an over-all picture of incidence of crime and make it possible to compare the
crime rate at regional, national and international level.
349K.D. Gaur (Ed.) : Criminal Law & Criminology (2003) p. 793.

350Taft Donald : Criminology (4th Ed.) p. 46.
Crime Statistics 227
Speaking about the importance of periodical statistical records of prisons and

prisoners, Bentham observed :
"The ordering of these returns is a measure of excellent use in furnishing
data for the legislature to work upon. They will form together a kind of political
barometer by which the effect of every legislative operation relative to the
subject may be indicated and made palatable. It is not till lately the legislators
have thought of providing themselves with necessary documents."351
Thus, it would be seen that crime statistics provide a useful guideline for the
legislators and criminal law administrators to fight against criminality and find
effective anti-dote of crimes.
Pointing out the significance of statistical data on crime and criminals, Edwin
Sutherland observed that these statistics are sometimes usefully utilised in the
formulation of social policies and theories of criminality. Besides, it also provides
valuable source-material for crime investigators. The social information contained in
them forms the basis of extensive research in the field of criminology. In the
absence of statistical record of crime it would become virtually impossible to form
any valid opinion about the crime picture in a given place.2
Reliability of Crime Statistics :
The magnitude of the problem of various forms of crime in a particular country
can be ascertained after an analysis of the criminal statistics. But the fact remains
that these statistics deal mainly with recorded crimes. It is therefore, not possible to
detect all criminal acts committed by people in a country. It is for this reason that it
is generally believed that statistics of crime and criminal are most deceptive of all
the statistics and hardly present a true picture of crime position. Some of the reasons
generally attributed to unreliability of crime statistics are as follows :—
1. The concept of crime being dynamic, it is difficult to determine the quantum
of crime with accuracy.
2. A large number of crimes committed remain undetected, there are others
which are detected but not reported and many more are reported but not recorded.
There are several reasons for not reporting crimes. The offence may be
considered trivial ; the police-post might be too far away ; one sincerely wants that
the culprit should be punished but he may apprehend harassment from him or he
may not be willing to go through the cumbersome process of criminal trial or he or
she may feel embarassed, as in case of sex offences. The victim may also not be
interested in reporting crime because he may not have confidence in the criminal
justice system or may not consider it worthwhile to get the offender prosecuted for
one or the other reason.
3. At times, there is a deliberate non-registration of crimes because lesser
number of crimes project a better image of police performance. Commenting on this
aspect of crime-statistics, Slui S. Venugopal Rao, a member of the Indian Police
Service observed that police personnel often adopt ingenious methods of
1. Radzinowicz : History of English Criminal Law (Vol. I) p. 395.
2. Sutherland and Cressey : The Reliability of Criminal Statistics p. 10.
manipulation. Perhaps the "tendency of judging police efficiency against a statistical
background has the most debilitating effect on free-registration of •crime. Politically
also, spectacular increases in crime are not relished since they have become a
351Venugopal Rao. S. : Dynamics of Crimes : Spatial and Socio-Economic Aspects of Crime in

India, p. 218.
228 convenient handle for theCriminology

oppositionand Penology
who interpret them as a breakdown of public
order."'
Expressing concern for non-registration of crimes by Police, Mr. Sripat Mishra,
former Chief Minister of Uttar Pradesh observed that a "manipulated fall in the
crime-graph due to non-registration of crimes is no indication of a better law and
order situation". Referring to crime statistics of Uttar Pradesh he said, "it is estimated
that with free and faithful registration of offences the crime-graph would
immediately record a jump of at least one hundred per cent".352
4. It has also been realised that a large number of crimes are lost between
arrest and prosecution and many more arc lost between prosecution and conviction.
Explaining this point further, Leon Radzinowicz observed that crimes fully brought out
into the open and punished, "represent not more than fifteen per cent of the great
mass actually committed".
5. The police is often inclined to give exaggerated figures of arrest and
prosecution in their records because their promotional prospects largely depend on
the number of convictions to their credit. This renders the police-statistics highly
controversial and their reliability doubtful. The significance of these statistics
therefore, depends on the honesty and efficiency of the police. Individual police
officer's decision to record an incident as crime or not also affects the crime
statistics.
6. The crime statistics at different places do not present a true picture of
volume of crimes because of the socio-economic differences and variations in the
criminal law. The behaviour which may be a crime at one place may not be
necessarily so in another place or time. This reduces the significance of crime-index
for the purposes of comparison. It is primarily for this reason that comparisons of the
crime rates of various countries are seriously limited by wide variations in their
national legal systems.353
7. The crime figures for the purpose of comparisons are to be stated in
proportion to population or some other base and as E.H. Sutherland rightly pointed
out, determination of this base is often difficult.354 The accuracy of population figures
is equally a matter of doubt and suspicion.
8. The judicial statistics or the statistical data given by law courts regarding
number of convictions do not generally tally with the statistics of prisoners compiled
by prison authorities because all convictions do not necessarily result into
imprisonment. Many of the convicted persons are let off after admonition or fine or
released on probation or parole or booked to a correctional institution.
9. The prison statistics often give a distorted picture of criminality. They are
least reliable to be used for appreciating the magnitude of the real crime
352 Quoted from News Letter in Indian Express, dated September, 2, 1982.
353Sutherland and Cressey : Principles of Criminology (6th Ed), p. 29.
354 Ibid.

problem or the types of crimes committed, or the types of offenders booked for
crimes. In fact, they are simply indicative of the persons who are institutionalised
rather than having any bearing upon actual number of crimes or criminals. Moreover,
these statistics are reflective of why people are caught and prosecuted rather than of
why they commit crimes, which is the central concern of criminologist.1
It would thus appear that accuracy of crime-statistics depends, by and large,
upon the societal reaction towards different crimes and the honesty, efficiency and
working of Police Department and other investigating agencies. Crime being
concerned with behavioural patterns, accuracy of crime figures is a myth. Statistics
therefore, depict only a general picture of criminality at a given place and time.
Commenting on the unreliability of crime statistics, B. Welmer observed that
unreported crimes vary between a minimum of twice and maximum of four-times the
number actually shown in criminal statistics.
Available statistics of crime may broadly be classified into two major
categories, viz., serious crimes and minor crimes. Serious crimes generally cause
greater alarm in the society and huge revenue loss to the State such as tax evasion,
bank frauds, scams etc. The minor offences, on the other hand, are less alarming and
are generally viewed mildly by the society.
Considered from the point of view of different agencies connected with the
administration of criminal justice, criminal statistics may be placed under three broad
heads, namely, (i) Police statistics; (ii) Judicial statistics or Court statistics; and (iii)
Penal statistics.
Police statistics are primarily concerned with the number of crimes reported, the
number of persons apprehended and the number of offences cleared or accounted for
by the arrests made.
The judicial or Court statistics are concerned with the number of offenders
prosecuted the number convicted and the method of procedure followed in
determining guilt, the number not convicted and the stage at which cases were
dropped. These statistics also account for the number of convictions and the type of
sentences imposed upon guilty persons.
Penal statistics comprise the details of different types of custodial measures, the
characteristics of the inmates, time spent in custody, number of escapes and offence-
wise number of recidivists.
It must be stated that availability of statistical data relating to post-correctional
criminal behaviour of offenders is equally important but unfortunately it is
practically not feasible to follow up the post-release conduct of the convicted
prisoners. However, the Government should at least make efforts to collect the
statistical data concerning repetition of crimes which may help the correctional
administration in suitably dealing with the habitual offenders.
Sources of Criminal Statistics :
The police, the court and the prison are three main sources of crime statistics.
These agencies administering criminal justice, collect statistics of crime and
criminals and forward them to the State Departments and the Central
1. Katherine S. Williams : Textbook on Criminology (2001) p. 95.

Bureau of Crime Statistics compiles them and publishes the Report on behalf of the
Government. In India, crime statistics are published by the National Crime Records
Bureau, Ministry of Home Affairs, Government of India. Commenting on the inter-
relationship between the crime statistics of these agencies, Thorston Sellin observed
that police records are more reliable index than arrest statistics, arrest statistics are
more reliable than court statistics, and court statistics are more reliable than prison
statistics.1
The satisfies on juvenile delinquency and probation are, however, published by
the Social Welfare Department of the States and the Department of Social Defence
functioning under the Ministry of Home Affairs, Government of India, New Delhi.
Some States, notably Gujarat have an independent Department of Correctional
Services for rehabilitation and After-care of offenders.
The offences relating to drug-trafficking and narcotics are dealt with by the
Narcotics Control Bureau constituted under the Ministry of Finance in 1985.
Therefore, the statistics pertaining to drug trafficking and drug abuse at the national
and international level are compiled by this Bureau which enables the enforcement
agencies to intensify their efforts to smash major national and international gangs of
drug-traffickers and provide adequate investigation and intelligence support at
vulnerable points such as border-areas, sea-shores and airports etc. This has helped in
suppression of drug-trafficking and prevention of offences relating to drug-abuse to a
considerable extent.
National Crime Records Bureau (NCRB)
The Crime Records Bureau operating under the Ministry of Home Affairs,
Government of India, is engaged in collecting and disseminating information relating
to crime, criminal and property in respect of various offences on the basis of monthly
statements/returns received from State Police.
The data available in the Crime Record Division is used for the purpose of co-
ordination of recovered or seized properties such as motor vehicles, firearms, etc.
with data of lost or stolen motor vehicles and firearms and vice versa. The outcome of
co-ordination is communicated to the concerned District Police Superintendent
through wireless message for follow-up action.
The data pertaining to 'TALASH' is used to co-ordinate the persons arrested,
wanted, missing, kidnapped, escaped, deserter, unidentified dead-bodies with each
other and the concerned authorities are informed accordingly.
The Crime Record Division also prepares a data relating to foreigners involved
in crimes and their activities for use of immigration authorities.
The Publication Branch of NCRB besides creating a data Bank on crime
statistics, also compiles and publishes Prison statistics and collects, collates and
disseminates crime statistics to Parliament, State Assemblies, Central/State
Governments, Judiciary, NGO's, Human Rights Commission, UN Organisation etc.
The purpose of publishing CRIME IN INDIA by the NCRB is to provide a
comprehensive overview on the crime situation in the country statewise, and 1. Sellin
Thorston "The significance of Records of Crime" published in Law Quarterly Review (Oct. 1951) pp.
496-504.
thereby enable the police and other law enforcement agencies to chalk out
intervention strategies for dealing with crime and criminals appropriately and to
minimise crimes from the society. A noteworthy feature of the publication of the year
2005 is addition of a new chapter on 'Crime in Railways' for the first time with a
view to presenting an overall picture about crimes in Railways which is the biggest
transporter of passengers and goods in the country.

Crime Statistics in India :
The various crimes that are being recorded, can be broadly grouped under the
following categories for statistical information purposes.
Broad Classification of Crimes under the Indian Penal Code (IPC)
(i) Crimes Against Body.—Murder, its attempt, Culpable Homicide not
amounting to Murder, Kidnapping & Abduction, Hurt, Causing Death by
Negligence.
(ii) Crimes Against Property.—Dacoity, its preparation and assembly,
Robbery, Burglary, Theft.
(iii) Crimes Against Public Order.—Riots, Arson.
(iv) Economic Crimes.—Criminal Breach of Trust, Cheating,
Counterfeiting.
(v)Crimes Against Women.—Rape, Dowry Death, Cruelty by Husband
and Relatives Molestation, Sexual Harassment and Importation of Girls.
(vi) Crimes Against Children.—Child Rape, Kidnapping and Abduction
of Children, Procuration of Minor Girls, Selling/Buying of Girls for
Prostitution, Abetment of Suicide, Exposure and Abandonment, Infanticide,
Foeticide.
(vii) Cyber Crimes.
(viii) Crime in Railways.355
(ix) Other IPC Crimes.
Under the Special and Local Laws (SLL)
(i) Arms Act;
(ii) Narcotic Drugs & Psychotropic Substances Act;
(iii) Gambling Act;
(iv) Excise Act;
(v) Prohibition;
(vi) Explosives & Explosive Substances Act;
(vii) Immoral Traffic (Prevention) Act;
(viii) Indian Railways Act;
(ix) Registration of Foreigners Act;
(x) Protection of Civil Rights Act;
(xi) Indian Passport Act;
(xii) Essential Commodities Act;
(xiii) Terrorist & Disruptive Activities Act;
(xiv) Antiquity & Art Treasure Act;
(xv) Dowry Prohibition Act;
(xvi) Child Marriage Restraint Act;
(xvii) Indecent Representation of Women (P) Act
(xviii) Copyright Act;
355 A separate chapter on Crime in Railways has been included in CRIME IN INDIA,
2005 published by NCRB, New Delhi.
(xix) Sati Prevention Act;

(xx) SC/ST (Prevention of Atrocities Act);
(xxi) Forest Act;
(xxii) Other crimes (not specified above) under Special and Local Laws
including Cyber Laws under Information Technology Act (IT) 2000. Statistics
of crime in India reveal that the country is fast heading towards
criminalisation and it will be in the midst of a crime explosion in coming years. The
annual total of recorded cognizable offences under the Indian Penal Code have
recorded a constant rise in subsequent years thus showing an upward trend. This is
evident from the comparative crime statistics of India as indicated in the Table given
below :—
TABLE SHOWING TREND OF VIOLENT CRIMES, PROPERTY CRIMES AND

ECONOMIC CRIMES (2001-2009)356
Year Total Cognizable Violent Crimes Property Crimes White Collar Crimes
Crimes (IPC)
Incidence % to total Incidence % to total Incidence % to
total
(1) (2) (3) (4) (5) (6) (7) (8)

2001 1769308 230930 13.1 381634 22.5 56807 3.7
2002 1780303 221810 12.5 370629 22.1 56128 3.5
2003 1716120 196550 11.5 38443 21.7 58932 3.7
2004 1832015 208736 11.4 391644 36.0 67644 3.4
2005 1822602 202640 11.1 388867 35.3 69580 6.3
2007 1833407 215613 10.8 376261 33.1 83061 9.3
2009 1861128 218471 10.7 389981 34.3 94557 10.8
The quantum of total violent crimes has declined during 2001 to 2003 followed
by an increase during 2004 and again a decrease during 2005 and slight increase in
2007 and 2009. The share of violent crimes affecting life and affecting women has
increased continually from 2001 to 2009 which is a cause of concern for the law and
order authorities. The share of crime affecting property has shown a mixed trend.
There is a sharp rise in economic offences in 2009 as compared with previous year
2007.
356Source : CRIME'IN INDIA-2009 published by NCRB, Delhi.

TABLE SHOWING TREND OF SOME MAJOR CRIME HEADS OVER

THE YEARS 1953- 2009
Total Cog. Murder Rape Kidnapping & Dacoity Robbery Burglary/ Riots
Crimes under Abduction House
IPC Breaking
< -<
~< -<
-< -< -< -<
Incidence
Incidence
Incidence
Incidence
Incidence
Incidence
Incidence
Incidence
CD cp CD
03 03 CD 03 CD CD CD CD
03 03 03 03
$ CO CO CD CO CO CO
1
6,01,964
9,802
2,487 in 1971
5,261
5,579
8,407
1,47,379
20,529
cn
03
a * a a a a CO
s
2009
21,21,345
2009
32,369
2009
21,397
2009
33,860
2009
4,586
2009
22,409
2009
92,070
62,942
over 1953
% Change in 2009
252,4
230.2
over 1971
Change in 2009
760.4
543.6
166.6
206.6
03
* Bureau started collecting data on "Rape" since 1971 only.

The total IPC crime in general has been rising as compared to previous years
(except in 1954 when it declined by 7% as compared to 1953) by 6% in 1976 as
compared to 1975; by 4% in 1993 and 2003 as compared to 1992 and 2002
respectively.
It can be observed from the above table showing trends of major crime heads
that dacoity and burglary (house-breaking) have shown declining trend over a period
of 57 years. Burglary/house breaking has declined by 37.5% (from 147379 in 1953
to 92070 in 2009), whereas murder has increased by 230.2% (from 9802 in 1953 to
32369 in 2009) Rape by 760.4% (from 2487 in 1971 to 21397 in 2009) kidnapping
& Abduction by 543.6% (from 5261 in 1953 to 33860 in 2009); Robbery by 166.6%
(from 8407 in 1953 to 22409 in 2009 and riots by 206.5% (from 20529 in 1953 to
62952 in z009).
Note.—All percentages shown have been rounded off.
The Pattern of IPC Crimes
A comparative study of cognizable crimes committed under Indian Penal Code
(IPC), Local Acts and Special Laws (L & SL) during 1998-2009 as indicated in
Table below would reveal that the pattern of crime in 2005 did not show much
variation from the preceding years. However, the percentage of 'murder' to the 'total
cognizable crimes' recorded a rise whereas the incidence of burglary/house-breaking
and riots recorded a slightly receding trend. The incidence of dacoity has shown an
increase of 5.7 per cent over the previous year.
TABLE
INCIDENCE & RATE OF TOTAL COGNIZABLE CRIMES UNDER INDIAN

PENAL CODE (IPC) And SPECIAL AND LOCAL LAWS (SLL)
1998-2009.
SI. Year Estimated Mid - Incidence Rate F
'ercentage of IPC
No.
Years Population (In crimes to
Lakhs) IPC SLL Total IPC SLL Total total
:ognizable
crim
< es.
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
1. 1998 9709 1778815 4403288 6182103 183.2 453.5 636.7 28.8
2. 1999 9866 1764629 3147101 4911730 178.9 319.0 497.8 35.9

3. 2000 10021 1771084 3396666 5167750 176.7 338.9 515.7 34.3
4. 2001 10270 1769308 3575230 5344538 172.3 348.1 520.4 33.1
5. 2002 10506 1780330 3746198 5526528 169.5 356.6 526.0 32.2
6. 2003 10682 1716120 3778694 5494814 160.7 353.7 514.4 31.2
7. 2004 10856 1832015 4196766 6028781 168.8 386.6 555.3 30.4
8. 2005 11028 1822602 3203735 5026337 165.3 290.5 455.8 36.3
9. 2007 12456 1989673 3743734 5733407 175.1 329.4 504.5 28.3
10. 2009 13671 2167304 3951607 6329876 182.3 461.7 647.9 31.4
V
The above Table clearly indicates that the crime rate in 2009 has recorded a rise
as compared to 2007. The crime rate in respect of IPC crimes has also increased
marginally by 11 per cent and that of SLL crimes has shown an upward trend during
the preceding two years.
It may be stated that population is one of the important factors influencing
incidence of crime. A positive correlation between the growth in incidence of crime
and the population of the country has been noticed. The other factor influencing the
crime situation at a particular place besides population would be growing
urbanisation leading to migration of population from neighbouring rural place,
unemployment, economic disparities, urge for amassing wealth and so on.
Crime Statistics of Narcotic Drug Seizures
Apart from the crimes under the Indian Penal Code, the magnitude of offences
under the Narcotic Drugs and Psychotropic Substances Act, 1985 are by no means
less alarming. This is evident from the statistics of total seizures of all drugs and
narcotics effected by the enforcement agencies and quantity of drugs seized during
the period 2006-2009 as given below :—
TABLE SHOWING SEIZURES OF NARCOTICS AND DRUGS (NO. OF CASES)
DURING 2006-2009*
Type of drug
2006 No. of Cases 2007 No. of Cases 2008 No. of Cases 2009 No. of Cases
Heroin 6,763 6,853 4,950 3,963
Opium 78 59 1,067 899

Cocaine 3,972 4,199 3,950 4,045
Crack 1,977 1,817 1,758 1,701
Meth-/Amphetamine 6,838 7,662 18 07
(incl. crystal) (416) (454) 208 332
Ecstasy 2,382 2,495 2,471 2,398
L.S.D. 205 236 208 220
Hashish 11,764 9,762 3,370 3,495
Marijuana 23,506 21,831 22,391 22,106
Plants 1,121 1,463 1,672 1,779
Khat 127 132 98 104
Psil. mushrooms 635 605 652 691
' Source : NCEB Crime in India, 2009

The drug-wise analysis reveals that there was decline in trafficking (in most of
drugs) during 2007 over 2006 with marked decrease in opium, LSD, methaqualone
and marijuana and cocaine. Similar decline in trafficking in heroin, opium,
amphetamine and marijuana may be noticed in 2009 as compared with the year
2008.
Conclusion
From the foregoing crime-statistics, the following generalisations in respect of
crimes in India may be drawn :—
1. Crimes have become common even in areas which were relatively crime-
free a few years ago. Thus, the States of Andhra Pradesh, Orissa and Gujarat which
were comparatively peaceful till late have now become notorious for atrocious
crimes such as highway robberies, dacoities and murders Communal disorders and
riots are frequent in Gujarat in recent years.
2. Rapid industrialisation of India during preceding years has resulted into
enormous increase of wealth and expansion of trade and manufacturing activities,
thus opening new vistas for crimes. The phenomenal expansion of banking in rural
and remote areas has given rise to offences such as bank-dacoities and robberies,
frauds, embezzlement, corruption, etc. The socio-economic offences of
blackmarketing, hoarding, .smuggling, adulteration, drug-trafficking have recorded a
steep rise mainly due to new spurt in commercial activities.
3. The impact of development activities and democratisation has also
contributed to crimes by aggravating social tensions. Intensification of trade union
activities and development of political institutions has led to struggle for political
power and group rivalries. Criminalisation of Indian politics and links between
criminals and political personalities or government functionaries quite often results
into murder, assault and other related crimes.
Criminal gangs often enjoy patronage of local level politicians who ignore their
criminal deeds. Thus, criminalisation of India's politics is virtually making criminal
actions respectable and beyond public indignation.
4. Social legislations such as land reforms, abolition of untouchability,
prohibition of bonded labour, removal of casteism, etc., have aggravated tensions. It

is significant to note that rivalries between Brahmins and Thakurs have been the
major cause of aggravating dacoity menace in the dacoit-infested States particularly
in Uttar Pradesh and Bihar. Strikingly, the Behmai-massacre committed by dacoit
turned Member of Parliament.357 Phoolan Devi, it is alleged, was essentially an
outcome of caste-rivalry between two predominant Hindu castes. The dacoits in these
areas assume the role of protectors of their caste and thus play the role of a hero in
atrocious crimes. The protection extended to these criminals by their caste members
makes the problem worse for the criminal justice administrators.
5. Urbanisation has also contributed to unprecedented rise in crime rate in
cities and towns of India. Analysing this factor as a cause of increase in crime.
Durkheim commented that disharmony, conflict and cultural differentations of urban
settings make the life of the people complex and difficult. This destroys earlier
congenial social relationship creating a social vacuum which proves to be a fertile
ground for criminality.
The existence of slums adjacent to industrial centres is also a spawing ground
for crimes. These slums are the centres of extreme deprivation which breed vices and
crime as acceptable economic activities for survival.
6. Indiscreet opening of educational institutions in the name of expansion of
education has opened new opportunities for crime. Due to deteriorating standard of
education, the centres of learning are turning into "meeting points for bored students,
uninvolved with their studies and angry about their uncertain future—ready for
diversion even of a criminal type". This has led to the politics of violence. Murders,
assaults and knife-wielding is frequently reported front the educational centres which
has added new dimensions to criminality in recent years. The indiscipline and
gangsterism of the campuses are part of a wider process of criminalisation of youth
leading to widespread rowdyism.358 The tendency of law-violation is more
conspicuous among educated youths than in non-literate groups.
7. Another trend discernible in crime in India is the increasing criminality due
to affluence, that is, urge to possess more and more wealth. Commenting on this
aspect, Erich Fromm rightly observes that with the urge to possess more and more, the
attitude of men has centred on property and profit which necessarily produces the
desire for power. Thus, in the present day ultra-modem society, one's happiness lies
in one's superiority over others, in
357 Phoolan Devi was the Member of Parliament from Uttar Pradesh during the 11th and the 12th
Lok Sabha. She was shot dead near her residence while she was returning from Lok Sabha in her
car during lunch-break in the afternoon of 25th July, 2001.
358 The incidents of looting, shooting, killing, arson and destruction of property are a common
occurrence in campuses in India. The death of a senior Professor of Madhav College, Ujjain
caused due to vandalism and manhandling by the student leaders on the student's election day in
August, 2006 illustrates the gravity of such heinous and violent acts.
one's power, and in the last analysis, in one's capacity to conquer, rob or kill.359
8. There has been a tremendous rise in terrorist's activities in India during the
preceding decade which has escalated violence and incidence of murder, kidnapping
and abduction, criminal assaults etc. The alarming rise in the violent-crime statistics
in recent past is predominantly due to this reason. The brutal killing of Sardar Beant
Singh, the former Chief Minister of Punjab on 31st Aug, 1995 by a suicide-bomber
is an example of the dreaded act of terrorists.
The foregoing generalisations in context of crime trend in India amply
demonstrate that crime-index and crime-statistics have a practical significance and
utility. These indices enable the criminal law administrators to formulate adequate
policies to handle criminals and prevent crimes. Crime statistics also guide law-
makers and legislators to enact appropriate laws360 or amend or repeal361 them to meet
the exigencies of time and place. This renders the task of prevention of crime easier.
The general view about crime statistics, like any other statistics, is that they are
nothing but a mere formality and has only a theoretical significance. It is too often
asserted that the statistics recorded by courts are more reliable than those of police,
prison or a correctional institution. The obvious reason for this view is that courts
have no interest, whatsoever, in twisting their crime records whereas for the police or
the prison officials they are indices reflecting their efficiency and hence they prefer
to present a better picture of their performance through crime statistics. It is,
therefore, desired that the attention of these agencies must be drawn to real purpose
of statistics and the role they are required to play in prevention of crime and
rehabilitation of offenders.
Undoubtedly, the unreliability and uncertainty of criminal statistics for reasons
stated earlier has been a cause of great concern for the legislators, social scientists
and social reformers. Expressing their anguish and dissatisfaction about the
authenticity of the available crime statistics some experts have come out with a
suggestion that it is preferable to direct our efforts on apprehending and convicting
the offenders rather than wasting time and money on counting crimes and criminals
or 'quibbing over statistics". They argue that 'it is better not to have statistics, than to
have a false or concocted one.' But it is submitted that such an extreme view will do
more harm than good as it would destroy the very source of information which forms
the basis for formulating policies and revising, reshaping or remodelling of the
criminal justice system.
It, therefore, follows that despite the doubts expressed about the authenticity of
the crime statistics, the fact remains that they serve as a primary source of
information about the types of crimes which are more likely to occur in a particular
area or in a particular season. It also enables the Investigating
Officer to draw a comparison about the pendency of cases in different States/Union
Territories as well as the charge-sheet ratio in the cases. Such information also acts
as a basis for planning, administration, management and policy formulation by police
359 Quoted from 'The Land of the Rising Sun' published in Indian Express Magazine
(February 20, 1983), p. 6.
360 The Dowry Prohibition (Amendment) Act, 1986. For the full text of the Act See
Appendix IV.
361 The Terrorist Disruptive Activies Act (TADA) was repealed in May, 1995. Later POTA was
enforced in 2002 which is also repealed by the Unlawful Activities (Prevention) Act, 1967 as
amended in 2004. A new' improvised law as a substitute for POTA is under consideration of the
Government of India in view of the rising incidences of terrorist attacks and bomb blasts at
Bangalore, Ahmedabad, Surat, Delhi and Bombay during the year 2008.
administrators to evolve strategies for detection and prevention of crimes at various

level. Crime Reporting work needs to be given priority and importance because it is
an in-house exercise to put the 'Police Station/District in preparedness for future.
Regular updation and publication of the crime statistics are the two essential
requisites which would certainly enhance the utility and validity of the Crime
Criminal Statistical System.
The major purpose underlying crime statistics is to explain and predict the
phenomenon of criminality and focus attention on causes of different crimes in
different locations. The reliability of such statistics, however, depends on the validity
of data collected for the purpose. Analysis of data involves the ordering or breaking
down of relevant figures into constituent parts in order to find out the cause for
increase or decrease in the rate of various crimes. Thus, statistical methodology
serves as a useful technique for formulating strategies to combat crimes and
criminality. It must, however, be pointed out that collection and collation of statistics
is really a specialised subject which requires presentation of information in the form
of tables, charts, graphs etc. Therefore, this job should be handled only by well
trained and qualified professionals who have real apptitude for this work. Besides
crime statistics, the periodical statistics regarding juvenile delinquency, probation,
parole, reformatories, etc., have helped immensely in working out effective
programmes and strategies for after-care and rehabilitation of offenders.
Chapter XI
Theories of Punishment
S ome of the major questions which are engaging the attention of modem
penologists are whether the traditional forms of punishment should remain the
exclusive or primary weapons in restraining criminal behaviour or should be
supplemented and even replaced by a much more flexible or diversified combination
of measures of treatment of a reformative, curative and protective nature. And if so,
to which categories of offenders should these improvised measures be applicable and
how should their choice in particular cases be determined ? And finally, how could
the reintegration of offenders into society be placed so as to efface the penal stigma
and to cut off the supply of potential recidivists at its source ?'
Punishing the offenders is a primary function of all civil States. The incidence
of crime and its retribution has always been an unending fascination for human mind.
However, during the last two hundred years, the practice of punishment and public
opinion concerning it have been profoundly modified due to the rapidly changing
social values and sentiments of the people. The crucial problem today is whether a
criminal is to be regarded by society as a nuisance to be abated or an enemy to be
crushed or a patient to be treated or a refractory child to be disciplined ? Or should he
be regarded as none of these things but simply be punished to show to others that
anti-social conduct does not finally pay.
It is in this perspective that the problem of crime, criminal and punishment is
engaging the attention of criminologist and penologists all around the world. A
'crime' has been defined by Salmcnd as an act deemed by law to be harmful for
society as a whole although its immediate victim may be an individual. Thus "a
murderer injures primarily a particular victim, but its blatant disregard of human life
puts it beyond a matter of mere compensation between the murderer and the victim's
family."362 Those who commit such acts, if convicted, are punished by the State. It is
therefore, evident that the object of criminal justice is to protect the society against
criminals by punishing them under the existing penal law. Thus punishment can be
used as a method of reducing the incidence of criminal behaviour either by deterring
the potential offenders or by incapacitating and preventing them from repeating the
offence or by reforming them into law-abiding citizens. It is this principle which
underlies the doctrines concerning the desirability and objectives of punishment.
Theories of punishment, therefore, contain generally policies regarding handling of
crime and criminals. There are four generally accepted theories of punishment,
namely, deterrent, retributive, preventive and
362Salmond : Jurisprudence (12th Ed.) p. 92.

reformative. It must, however, be noted that these theories are not mutually
exclusive and each of them plays an important role in dealing with potential
offenders.
Concept of Punishment :
Before dealing with the theories of punishment, it would be pertinent to explain
the concept of punishment. Sir Walter Moberly, while accepting the definition of
punishment as given by Grotious, suggests that punishment presupposes that :—
1. what is inflicted is an ill, that is something unpleasant;
2. it is a sequel to some act which is disapproved by authority;
3. there is some correspondence between the punishment and the act which
has evoked it;
4. punishment is inflicted, that it is imposed by someone's voluntary act;
5. punishment is inflicted upon the criminal, or upon someone who is
supposed to be answerable for him and for his wrong doings.
Justification for Punishment
There are valid reasons for justification of punishment to offenders who are
convicted for an offence. They may briefly be stated as follows :—
1. Deterrence.—Punishment dissuades a person from future wrong doing by
making punishment severe enough so that the benefit or pleasure derived from the
offence is outweighed by the pain and probability of punishment.
2. Incapacitation.—Incarceration has the effect of confining the prisoner and
physically incapacitating him from committing a crime. The most dangerous
criminals may be sentenced to imprisonment for life or even a sentence of death may
be invoked for heinous and brutal crimes such as murder etc.
3. Restoration.—For some minor offences punishment may in the form of
restoration such as fines or payment of compensation to the victims of crime or
his/her relatives or families.
4. Rehabilitation.—Some punishments are directed to reform the offender and
ensure his rehabilitation as a law abiding citizen. It aims at bringing about a change
in the offender's attitude to make him socially acceptable.
Theories of Punishment :
To punish criminals is a recognised function of all civilised States for centuries.
But with the changing patterns of modem societies, the approach of penologists
towards punishment has also undergone a radical change. The penologists today are
concerned with crucial problem as to the end of punishment and its place in penal
policy.
Though opinions have always differed as regards punishment of offenders
varying from age-old traditionalism to recent modernism, broadly speaking four
types of views can be distinctly found to prevail. Modem penologists prefer to call
them 'theories of punishment'. The line of demarcation between these theories are,
however, so then that they cannot be completely separated from
each other.
The eighteenth century utilitarianism formulated a social policy which provided
a blue print for working out penal reforms and legislation in England during the
Benthamite era. The major theories of punishment laid down during that person are
relevant even to this day excepting the theory of retribution, which stands completely
discarded in modem penal programmes. These theories are briefly stated as follows :
Theories of Punishment 243

Deterrent Theory
Earlier modes of punishment were, by and large, deterrent in nature. This kind of
punishment presupposes infliction of severe penalties on offenders with a view to
deterring them from committing crime.
The founder of this theory, Jermey Bentham, based his theory of determine on
the principle of hedonism which said that a man would be deterred from committing a
crime if the punishment applied was swift, certain and severe. This theory considers
punishment as an evil, but is necessary to maintain order in the society.
The deterrent theory also seeks to create some kind of fear in the mind of others
by providing adequate penalty and exemplary punishment to offenders which keeps
them away from criminality. Thus the rigour of penal discipline acts as a sufficient
warning to offenders as also others. Therefore, deterrence is undoubtedly one of the
effective policies which almost every penal system accepts despite the fact that it
invariably fails in its practical application. Deterrence, as a measure of punishment
particularly fails in case of hardened criminals because the severity of punishment
hardly has any effect on them. It also fails to deter ordinary criminals because many
crimes are committed on the spur of the moment without any prior intention or
design. The futility of deterrent punishment is evinced from the fact that quite a large
number of hardened criminals return to prison soon after their release. They prefer to
remain in prison rather than leading a free life in society. Thus the object underlying
deterrent punishment is unquestionably defeated. This view finds support from the
fact that when capital punishment was being publicly awarded by hanging the person
to death in public places, many persons committed crimes of pick-pocketing, theft,
assault or even murder in those men-packed gatherings despite the ghastly scene.
Suffice it to say that the doctrine concerning deterrent punishment has been
closely associated with the primitive theories of crime and criminal responsibility. In
earlier times, crime was attributed to the influence of 'evil spirit' or 'free-will' of the
offender. So the society preferred severe and deterrent punishment for the offender
for his act of voluntary perversity which was believed to be a challenge to God or
religion.1
The punishment ought to be a terror to evil-doers and an aweful warning to all
others who might be tempted to imitate them. This contention finds support in
Bentham's observation, who said :—
"General prevention ought to be the chief end of punishment....
An unpunished crime leaves the path of crime open, not only
_____ to the same delinquent but also to all those who may have
1. Barnes & Teeters ; New Horizons in Criminology, (3rd Ed.) p. 216.


some motives and opportunities for entering upon it .................. we
perceive that punishment inflicted on the individual becomes
source of security for all ....... Punishment is not to be regarded as
an act of wrath or vengeance against a guilty individual who has
given way to mischievous inclinations, but as an indispensable
sacrifice to the society"
Bentham, however, believed that offenders must be provided an opportunity for
reformation by the process of rehabilitation. From this point of view, his theory may
be considered forward looking as it was more concerned with the consequences of
punishment rather than the wrong done, which being a post, cannot be altered.363
Retributive Theory :
While deterrent theory considered punishment as a means of attaining social
security, the retributive theory treated it as an end in itself. It was essentially based on
retributive justice which suggests that evil should be returned for evil364 without any
regard to consequences. The supporters of this view did not treat punishment as an
instrument for securing public welfare. The theory therefore, underlined the idea of
vengeance or revenge. Thus the pain to be inflicted on the offender by way of
punishment was to outweigh the pleasure derived by him from the crime. In other
words, retributive theory suggested that punishment is an expression of society's
disapprobation for offender's criminal act.
Supporting the theory of retribution Emanuel Kant observed :
"Judicial punishment can never be used merely as a means to
promote some other good for the criminal himself or civil society,
instead, it must in all cases be imposed on him only on the ground
that he has committed a crime; for a human being can never be
manipulated merely as a means to the purposes of someone else."
According to him, punishment is an end in itself therefore, retribution is a
natural justification because society thinks that a bad man should inevitably be
punished and good ought to be rewarded.
Commenting on retributive theory Sir Walter Moberly observed that the theory of
retribution is based on the view that punishment is a particular application of the
general principle of justice, that men should be given their due.365 Punishment serves
to express and to satisfy the righteous indignation which a healthy minded community
regards transgression. As such, it is sometimes an end in itself.366
It must be stated that the theory of retribution has its origin in the crude animal
instinct of individual or group to retaliate when hurt. The modem view, however, does
not favour this contention because it is neither wise nor desirable. On the contrary, it
is generally condemned as vindictive approach to the offender.
Retributive theory is closely associated with the notion of expiation which
means blotting out the guilt by suffering an appropriate punishment. It is this
consideration which underlies the mathematical equation of crime, namely, guilt plus
punishment is equal to innocence.
Most penologists refuse to subscribe to the contention that offenders should be
punished with a view to making them pay their dues. The reason being that no sooner
an offender completes his term of sentence, he thinks that his guilt is washed off and
363 Chaturvedi K.C. : Penology & Correctional Administration, (2006) p. 26.

364 Sen. P, K. : Penology Old and New (1943), p. 27.
365 Sir Walter Moberly : The Ethics of Punishment (1968 Ed.) p. 14.
366 Ibid.
he is free to indulge in criminality again.

Hegal opposed the theory of retribution and observed that it is the manifestation
of revenge for an injury. To quote him, he said,
"You hurt me so I will hurt you. Indeed that is the literal meaning of
retribution. And if I cannot hurt you myself, I demand that you should be hurt by
others. The desire to make the offender suffer, not because it is needed so that
the guilt is purged, not also because suffering might deter him from future crime,
but simply because it is felt that he deserves to suffer, is the essence of
retribution."1
It must be stated that Sir James Stephen defended the doctrine of retribution on the
ground that "criminals deserved to be hated and the punishment should be so
contrived as to give expression to that hatred, and to justify by gratifying a healthy
natural sentiment."2
However, the modem penology discards retribution in the sense of vengeance,
but in the sense of reprobation it must always be an essential element in any form of
punishment.
Preventive Theory
Preventive philosophy .of punishment is based on the proposition 'not to avenge
crime but to prevent it'. It presupposes that need for punishment of crime arises
simply out of social necessities. In punishing a criminal, the community protects
itself against anti-social acts which endanger social order in general or person or
property of its members.
In order to present preventive theory in its proper perspective, it would be
worthwhile to quote Fichte who observed,
"the end of all penal laws is that they are not to be applied".
Giving an illustration he continued, "when a land owner puts up a
notice 'trespassers will be prosecuted' ; he does not want an actual
trespasser and to have the trouble and expense of setting the law into
motion against him. He hopes that the threat will render any such
action unnecessary, his aim is not to punish trespass but to prevent it.
If trespass still takes place, he undertakes prosecution. Thus, the
instrument or deterrence which he devised originally consisted in the
general threat and not in particular convictions".
The real object of the penal law therefore, is to make the threat generally known
rather than putting it occasionally into execution. This indeed makes the preventive
theory realistic and gives it humane touch. It is effective for
1. Studies in Hegalian Cosmology p. 133, cited by Ewing AC. The Morality of Punishment pp. 73-
75.
2. Sir James Stephen : History of Criminal Law of England, p. 82.
discouraging anti-social conduct and a better alternative to deterrence or retribution,
which now stand rejected as methods of dealing with crime and criminals.
In England, utilitarians like Bentham, Stuart Mill and Austin supported preventive
theory' because of its humanising influence on criminal law. They asserted that it is
the certainty of law and not its severity, which has a real effect on offenders.
As an off-shoot of preventive view regarding crime and criminals, the
development of prison institution gained momentum. The preventive theory seeks to
prevent the recurrance of crime by incapacitating the offenders. It suggests that
prisonisation is the best mode of crime prevention as it seeks to eliminate offenders
from society thus disabling them from repeating crime. The supporters of preventive

philosophy recognise imprisonment as the best mode of punishment because it serves
as an effective deterrent and a useful preventive measure. It pre-supposes some kind
of physical restraint on offenders. According to the supporters of this theory,
murderers are hanged not merely to deter others from meeting similar end, but to
eliminate such dreadful offenders from society.
Reformative Theory
With the passage of time, developments in the field of criminal science brought
about a radical change in criminological thinking. There was a fresh approach to the
problem of crime and criminals. Individualised treatment became the cardinal
principle for reformation of offenders. This view found expression in the reformative
theory of punishment.
As against deterrent, retributive and preventive justice, the reformative
approach to punishment seeks to bring about a change in the attitude of offender so as
to rehabilitate him as a law abiding member of society. Punishment is used as a
measure to reclaim the offender and not to torture or harass him. Reformative theory
condemns all kinds of corporal punishments. The major emphasis of the reformist
movement is rehabilitation of inmates in peno-correctional institutions so that they
are transformed into law-abiding citizens. These correctional institutions have either
maximum or minimum security arrangements. The reformists advocate human
treatment of inmates inside the prison institutions. They also suggest that prisoners
should be properly trained to adjust themselves to free life in society after their
release from the institution. The agencies such as parole and probation are
recommended as the best measures to reclaim offenders to society as reformed
persons.
The reformative view of penology suggests that punishment is only justiciable
if it looks to the future and not to the past. "It should not be regarded as settling an old
account but rather as opening a new one". Thus the supporters of this view justify
prisonisation not solely for the purpose of isolating criminals and eliminating them
from society but to bring about a change in their mental outlook through effective
measures of reformation during the term of their sentence.
Undoubtedly, modem penologists reaffirm their faith in reformative justice but
they strongly feel that it should not be stretched too far. The reformative methods
have proved useful in cases of juvenile delinquents, women and the first offenders.
Sex psychopaths also seem to respond favourably to the individualised treatment
model of punishment. However, the recidivists and hardened criminals do not
respond favourably to the reformist ideology. It is for this reason that Salmond has
observed that though general substitution of reformation for deterrence may seem
disastrous, it is necessary in certain cases specially for abnormals and degenerates
who have diminished responsibility.367 It therefore, follows that punishment should not
be regarded as an end in itself but only as a means, the end being the social security
and rehabilitation of the offender in society.
Some penologists have denounced 'rehabilitative ideal' or the 'reformist
ideology' underlying individualised treatment model because in practice they are
more punitive, unjust and inhumane than retribution or deterrence. Writing about the
condition of prisons in Russia and France, Peter Kropotkin observed, "prisons are seen
as symbols of our hypocrisy regarding rehabilitation, our intolerance for deviants, or
our refusal to deal with the root causes of crime such as poverty, discrimination,
367 Salmond : Jurisprudence (12th Ed., 1966), p. 27.

unemployment, ignorance, over-crowding"368 and so on.

Yet another argument which is often advanced against reformative treatment is
that there is no punishment involved in it in terms of some sort of pain and therefore,
it cannot be regarded as punishment in true sense of the term. But it must be pointed
out that though reformative treatment involves benevolent justice, yet the detention
of the offender in prison or any other reformative institution for his reformation or
readjustment is in itself a punishment because of the mental pain which he suffers
from the deprivation of his liberty during the period he is so institutionalised.
Therefore, it is erroneous to think that institutional detention for reformation is not a
form of punishment. In fact, surveillance and close supervision is itself punitive
though it involves no physical pain or suffering.
The authors of an American study also criticised reformist ideology stating that,
"it never commended more than lip service from most of its more powerful
adherents. Prison administrators who embraced the rehabilitative ideal, have done so
because it increased their power over inmates".369
It is a known fact that punishment always carries with it a stigma inasmuch as it
fetters the normal liberty of individual. It has become an integral part of law
enforcement for securing social control. Punishment is inevitable for recidivists who
are habitual law-breakers. The tendency among recidivists to repeat crime is due to
their inability to conform to the accepted norms of society. Investigative researches
reveal that it is the mental depravity of the offenders which makes them delinquent
and therefore, a system of clinical treatment seems inevitable for the correction of
such offenders. However, there is a need for compartmentalisation of offenders for
this purpose on the basis of age, sex, gravity of offence and mental condition. This
object is achieved by sdentific classification of criminals into different categories
such as the first offenders, habitual offenders, recidivists, juvenile delinquents, insane
criminals, sex phychopaths etc. The correct approach would be to treat punishment as
a sort of social surgery since criminal is essentially a product of conflict between the
interests of society.
Efficacy of Punishment
In order to assess the adequacy of modern penal systems, it is necessary to
probe into the origin and evolution of the system of punishment from the earliest
time.
Early Stages
In primitive societies, men shared with animals the emotion of resentment at
injury. The sense of fear and ignorance led to barbarous method of treatment of
offenders. The concept of law and order was not yet known. Consequently, the
common methods of settling disputes were through personal vengeance such as dual
blood feuds and reparation, etc. As pointed out by Gillin, "in those days punishment
was reflective reaction to injury". Thus, in early societies the basis of punishment
was retribution and vengeance. This obviously led to exploitation of the weaker by
the stronger which resulted into complete chaos. The life and property were most
insecure and always exposed to dangers. At times, even the family members of
victim or his clan settled disputes with the offender or his family.
368 Kamenka & Brown : Ideas and Ideologies Law and Society, p. 112.
369 An American Report on Crime and Punishment entitled. "Struggle for Justice"
prepared Jjy American Friends Service Committee (New York 1971), p. 112.

It is significant to note that even the oldest epic Bhagzvat Gita justified killing in
some cases as a virtuous act and to act contrary to it was considered as a sin or an act
of cowardice. Dharmasastra also contained a passage saying "killing of a murderer
(Atatayinah) is one's duty, may the killer be a preceptor, child, old man or even a
learned Brahmin." The murderer should be slain at once without considering whether
the act is virtuous or vicious. As pointed out Mr. Justice K.B. Panda, this exhibits
profound knowledge and farsightedness of ancient Hindu law-makers who had not
only contemplated of a right of private defence but had also given due recognition to
it.370
The cases of property damages were generally settled by compelling the
offender to pay compensation to the injured. This remedy was, however, rarely used
for personal injuries. With the advance of civilization, the sense or respect for mutual
rights and duties developed among people which eventually led to the evolution of
law. Later, the State came into existence and took to itself the task of maintaining
law and order in the community by punishing the law-breakers. The State also sought
to redress the grievances of victims who were injured by the wrongful acts of
criminals. The Sovereign used punishment as a substitute for personal vengeance
through retribution. In early days, the popular modes of punishment were exile,
banishment and outlawry. These methods acted as an effective deterrent in
maintenance of the law and order within the community According to Maitland, four
main forms of punishment were., (1) outlawry, (2) blood feuds, (3) hot, wite, and
wer,371 and (4) loss of life
370 Lecture delivered by Mr. Justice K. B. Panda of the Orissa High Court on SANATAN
DHARMA AND LAW in All-World Religious Conference at Puri on 1st Dec. 1974.
371 In Anglo-Saxon law the word 'bot' was used for the quantum of compensation, a part of which
was to go to the State for its services and was called 'wite' while the balance of it was to be
retained by the party injured and was called 'wer'.
or limbs were commonly used in the early English society.

Medieval Period
The medieval period in the history of human civilization witnessed an era of
religious predominance in the western world. The tenets of religion had great impact
on the administration of justice and penal policy. Crime began to be identified with
sin and violence was abhored. Ecclesiastical punishments were mixed up with the
religious notions of cleansing of the soul for the reformation of criminal. Ordeal by
fire and water were commonly used to establish the guilt or innocence of the
accused.372 The genesis of punishment then lay in supernatural forces. It was
generally believed that an offender by his criminal behaviour invoked the wrath of
God which entailed him punishment. Offender's guilt could be washed off by
penance, remorse or expiation which by itself was a sufficient punishment to
mitigate his wrong.373 This finally led to the evolution of solitary confinement as
means of penance by putting the wrong-doer in isolation. Particularly, the ancient
penal law of India laid greater emphasis on penance or Atma-Shuddhi of the offender
and believed that if the offender sincerely repented for his offence, the mental torture
that he suffers due to remonstrance was in itself a great punishment for him. The
noted Italian criminologist Garofalo, however, rejected the theory of moral expiation
on the ground that a criminal by nature lacks moral consciousness and therefore,
expiation as a punishment has merely a theoretical significance. It must, however, be
stated that Garofalo's conclusions on expiation as a mode of punishment may be true
so far habitual offenders or recidivists are concerned but expiatory methods do have
a great force in reforming the first offenders and those delinquents who commit
crime impulsively or under compelling circumstances.
Criticising the theory of expiation, Sir Leo Page observed that "the theory is not
only wrong but actively mischievous as it would mean imposing a duty on courts to
determine the degree of pain precisely adequate to expiate moral guilt." In his view
this was patently impossible. According to him, "to assess the moral culpability of a
man involves the ability to look into his heart, to take account of the strength of the
temptations to which he was subjected as well as the conditions which have made
him what he is."374
Enrico Ferri, the noted Italian criminologists also discarded the idea that
expiation should enter the arena of punishment and said, "the question of moral guilt
of a criminal or of any other human being, lies within the domain of religion and
moral philosophy,...the State and its system of criminal justice can do no more than
to adopt such measures to defend the community against criminals as are reasonable
to themselves and proportionate to the danger threatened to society.375
Rationalisation of Punishment :
The theory of expiation presented practical difficulties in the determination of
exact quantum of punishment which would be adequate to wash off the moral guilt
of the offenders. Besides, it also meant assigning the Judge a task which cannot be
accomplished by any human agency.
With the advance of science and knowledge in social disciplines, there has been
372 Dr. Pendse S.N. : Oath And Ordeals In Dharmsastra, (M.S. University Pub.,
Vadodara, 1985) p. 2.
373 Howard W.F. : 'Punishment And Reformation', p. 149.
374 Sir Leo Page : Crime & the Community p. 67.
375 Enrico Ferri : Criminal Sociology p. 347.
a wave of renaissance and reformation throughout the European continent. The

Declaration of Rights of Man in France in 1787 marked the end of draconian
punishments and the beginning of methodical system of punishment founded on
sound principle that right to punish is limited by the law of necessity. This brought
about radical changes in the administration of criminal justice. In result, penology
began to develop as an independent branch of criminal science with new treatment
methods of punishment for the reformation of inmates. A scientific approach to crime
and criminals has shown beyond doubt that torturous punishment tends to turn
offenders more dangerous and aggressive towards society. Alternatively, their
rehabilitation through the method of reformation is considered more useful. With this
end in view, the modem judicial trend is to incorporate correctional methods in the
penal programme so as to bring about rehabilitation and re-socialisation of inmates in
the community.
Yet another reason for need to rationalise punishment was the deteriorated
conditions of persons due to over crowding which posed multiple problems before
the prison authorities. The condition of prisons during the medieval period was
awefully bad and prisoners were virtually living a life of hell on earth. Deterrence
was the cardinal rule of justice which meant considerable torture and harassment to
offenders. Punishment was used as a means to inflict pain on the offenders. The
theory of vengeance which is otherwise known as lex-talionis (poetic-penalties) was
nothing but a perverted form of retributive method of punishment. It was founded on
the principle of 'eye-for-an-eye and tooth for-a-tooth'. The agencies implementing
these punishments adopted a very stiff attitude towards the offenders.
Modem or New Penology
With new criminological developments, particularly in the field of penology, it
has been generally accepted that punishment must be in proportion to the gravity of
the offence. It has been further suggested that reformation of criminal rather than his
expulsion from society is more purposeful for his rehabilitation. With this aim in
view, the modem penologists have focused their attention on individualisation of
offender through treatment methods. Today, old barbarous methods of punishment
such as mutilation, branding, hanging, burning, stoning, flogging, amputation,
starving the criminal to death or subjecting him to pillory or poetic punishment, etc.
are completely abandoned.
Pillory was a method of corporal punishment under which the offender was
subjected to public ridicule by exposing him to punishment in public places.
Different poetic punishments were provided for different crimes. For example,
cutting off hands for theft, taking off tongue for the offence of perjury, emasculation
for rape, shaving off the head of a woman in case she committed a sex-crime or
whipping her in public street and similar other modes were common forms of poetic
punishment during the middle ages. Modem penologists have substituted new forms
of penal sanctions for the old methods
of sentencing. The present modes of punishment commonly include imposition of
monetary fines, seggregation of the offender temporarily or permanently through
imprisonment or extemment or compensation by way of damages from the wrong-
doer in case of civil injury. The credit for introducing these penological changes
goes to eminent criminologists, like Beccaria, Garofalo, Ferri, Tarde, Bentham, and
others who formulated sound principles of punishment and made all out efforts to
ensure rehabilitation of offenders so as to make them useful member of society .once
again. Garofalo strongly recommended 'transportation' or 'banishment' of certain
types of offenders who had to be seggregated from society. Modem penal systems,
however, limit the punishment of transportation within the homeland so that
potentiality of prisoners is utilised within the country itself. Of late, open jails, parole
or probation are being intensively used for long-termers so that they can earn their
livelihood while in the institution.
It was Beccaria who pioneered classical view of penology and raised voice
against cruel and brutal punishments. He advocated equalised treatment for all
criminals in the matter of punishment and reiterated that it was not the personality of
offender but his antecedents, family background and circumstances, which had to be
taken into consideration while determining his guilt and punishment. This in other
words meant greater emphasis on the 'act' (crime) rather than the criminal. He was
equally opposed to the discretionary power of the court and argued that the function
of determining appropriate punishment for different offences must be confined to the
legislators and law-makers alone. The system of trial by jury is essentially an
outcome of the classical thinking which treated 'act' and not the 'individual' as the
object of punishment. The function of jury is to determine the question of fact, i.e.
whether the crime has been committed by the offender or not, while it is for the
magistracy to decide the guilt or innocence of the accused in accordance with the
established principles of law. The central theme of penal policy advocated by
adherents of classical school was equality of punishment for similar offences.
However, the theory has fallen into disuse with the advance of knowledge through
penological researches.
As a reaction to classical view, neo-classists voiced their criticism against
equality of punishment on the ground that it did not respond well with the
requirements of certain categories of criminals such as minors, idiots, mentally
depraved offenders or those committing crime under extenuating circumstances.1 The
adherents of neo-classical school therefore, suggested that punishment should be
awarded in varying degrees depending on the mental condition and intent of the
criminal. Thus, it was for the first time that an attempt was made to shift the
emphasis from 'crime' to 'criminal'. The significant contribution of this school in the
field of penology lies in the fact that it emphasised the need for individualised
punishment. This finally led to classification of criminals into different categories
according to the genesis of their criminality. The object was to make the reformative
methods of punishment more effective. Commenting on this change, Dr. P. K. Sen
rightly observed that punishment is now divested of its retaliatory characteristic and
is converted into a treatment method for bringing about reformation of the
offender. _____________
Among modern penologists the names of Raffaele Garofalo and Enrico Ferri
deserve a special mention. Garofalo was an eminent criminologist of Italy who held
distinguished positions as a Judge, a Professor of law as also a Minister of Justice
and therefore, he was deeply involved in administration of criminal justice and
treatment of offenders. Out of his vast experience as a magistrate, he suggested that
insane criminals should be treated leniently. In his opinion, vengeance had only a
theoretical basis for penal sanctions. Surprisingly, Garofalo was a critic of
reformative theory of punishment and believed that it had only a limited utility in
cases of young or first offenders and it hardly served any useful purpose in case of
recidivists and hardened criminals. He also rejected deterrent punishment since it
failed to determine the exact quantum of punishment for a given offence under
varying social circumstances. He, however, agreed with Beccaria that retention of
1. Sen, P.K. : Penology Old and New (1943 Ed.), p. 45.
punishment is necessary for recognition of individual rights and social co-existence.

Enrico Ferri was yet another Italian penologist who supported positive school of
criminology. He asserted that punishment was necessary for the protection of society
because crimes in society are inevitable. In his opinion, punishment was a social
deterrent. Since society has to defend itself against aggressors, it has a right to punish
the offenders. He strongly commended compensation as an effective sanction against
crimes, particularly those relating to property. Ferri believed that dumping the
prisoners in prison cells throughout their term of sentence served no useful purpose.
It was wholly an unproductive process. He therefore, suggested that inmates should
be utilised to work on agricultural farms or construction sites and engaged as labour
during working hours. This in his view, was in the best interest of the inmates as well
as the State. He preferred indeterminate sentence to a fixed term of institutionalised
sentence and recommended clinical treatment for insane criminals.
~~Briefly stated, it is now well recognised that prevention of crime and
protection of society are the main objects of punishment. It therefore, follows that no
single theory of punishment will serve the real purpose. Commenting on this aspect
of penal justice, Caldwell observed :
"Punishment is an art which involves the balancing of retribution,
deterrence and reformation in terms not only of the Court but also of the values
in which it takes place and in the balancing of these purposes of punishments,
first one and then the other receives emphasis as the accompanying conditions
change."1
The modem penological thinking favours rationalisation of punishment by
taking into consideration the various approaches in their proper perspective and
making use of them to suit the given situation and requirement of the offender in
accordance with the principle of individualisation.
Indian Perspective
Dr. P. K. Sen, a well known authority on Indian penology has given a
comparative account of the old and new penal systems. He observed that penology
embodies the fundamental principles upon which the State formulates its scheme of
punishment. He further pointed out that punishment always lacks exactness because
it is concerned with human conduct which is constantly
varying according to the circumstances. He therefore, suggested that punishment must
be devised on case to case basis so that it could be free from rigidity and capable of
modification with changing social conditions. Dr. Sen emphatically stressed that penal
science is not altogether new to Indian criminal jurisprudence. A well defined penal
system did exist in ancient India even in the time of Manu or Kautilya. In ancient penal
system, the ruler was expected to be well versed in Rajdharma (duty of king) which
included the idea of Karma (duty) and Dand (punishment). The ancient Indian criminal
justice administrators were convinced that punishment serves as a check on repetition of
crime and prevents law-breaking. They believed that all theories of punishment whether
based on vengeance, retribution, deterrence, expiation or reformation are directed
towards a common goal, that is, the protection of society from crime and criminals.
Thus, punishment was regarded as a measure of social defence and a means to an end.
The modem trend, however, is to replace retributive and deterrent methods by
reformative and corrective measures, the object being rehabilitation of the offender.
Commenting on this aspect of penal justice, Dr. P.K. Sen asserted that the concept of
punishment has now radically changed inasmuch as it is no longer regarded as a reaction

of the aggrieved party against the wrong-doer but has become an instrument of social
defence for the protection of society against crime.
Essentials of an Ideal Penal System

By way of generalisation, it may be stated that efficacy of a penal system is to be
assessed in the light of its impact on society in general and the criminal in particular.
Punishment of offenders though necessarily arduous, is inevitable in the interest of the
community "at large therefore, every civilised nation must have a definite penal
programme.
An ideal penal system must essentially include the following characteristics :—
1. A rational penal policy should aim at protecting the society from crimes and
reclaim criminals by removing imperfections in the penal law of the country. Greater
emphasis should be on prevention rather than cure. All necessary steps should be taken
to ensure that people do not get any opportunity to commit crime rather than trying to
reform them after they have indulged into criminality. The law must provide scope for
adjustment of punishment according to variations in culpability.
2. Expressing concern for the efficacy of punishment. Bentham, the eminent
English law reformer commented that penal policy must be in conformity with the
principle of hedonism, that is, the utilitarian doctrine of pain and pleasure. The pleasure
or benefit derived from criminal act must not outweigh the pain inflicted by way of
punishment, otherwise the punishment is bound to lose its significance. That apart,
punishment to be effective, should be proportionate to the gravity of the offence.
3. It is an accepted fact that delay defeats justice and therefore, inordinate delay in
sentencing negates its deterrent effect. As such, it is desired that punishment must
follow the crime. Elimination of delay in awarding punishment is perhaps the most
fundamental requirement of an ideal penal programme. It must be noted that inordinate
delay in disposal of cases by courts is causing untold miseries to poor litigants,
particularly in India, as a result of which people are losing faith in these institutions of
justice.
4. Punishment connotes society's disapprobation for a particular human conduct
and penal sanctions act as a threat to the aggressor to refrain from committing such
forbidden acts of violence. Thus the ultimate object of punishment is to protect society
against law-breakers. As Beccaria puts it, the purpose of punishment is 'to make crime an
ill-bargain for the offender'.
5. Experience has shown that the principle of equal punishment for similar
offences does not prove effective for all types of criminals. The young and the first
offenders must be treated differently than the recidivists and habitual offenders. The
justification for this differential treatment lies in the fact that the effect of punishment
varies from criminal to criminal depending on his age, sex, intellect, mental depravity,
responsive attitude and social circumstances. It is for this reason that classification of
criminals into different categories is deemed necessary so that they could be reformed
through adequate correctional measures.
6. It is significant to note that efficacy of punishment essentially depends on the
proper functioning of agencies376 which administer criminal justice. These agencies must
command respect among the public. Everyone including the criminal himself should feel
convinced that justice has been done to him. Disproportionate and unduly harsh
376 The important agencies of administering penal justice are the police, law courts, prisons and similar
penal institutions. Lawyers and political and social leaders also play an indirect role in criminal
justice delivery system.

punishment shall make the members of community feel that their life is unsafe and
insecure in the hands of criminal law administrators and their distrust for law and penal
institutions shall jeopardise the cause of criminal justice. Unfortunately, the position in
India in this regard is far from satisfactory. Particularly, the functioning of the police and
prisons needs improvement so that people regain their lost faith in these august
institutions of law and justice.
7. Reformation of criminals should be the object of punishment while
'individualisation' the method of it. Reformation in case of juveniles, first offenders and
women offenders and deterrence for hardened criminals and recidivists should be the
ultimate object of penal policy. Emphasising on the reformative aspect of penal justice,
the Supreme Court in Mohd. Giasuddin v. State of A.P.,377 held that the State has to
rehabilitate the offender rather than avenge him. Mr. Justice Krishna Iyer further observed,
"sub-culture that leads to anti-sodal behaviour has to be countered not by undue cruelty
but by re-culturialisation". The punishment to be efficacious must include the
combination of deterrence, prevention and reformation so that it prevents a future wrong
besides bringing a change in the attitude of the offender through reformative measures
during the period of his incarceration.
8. While appreciating the need for reformative approach towards criminals, a
word of caution as to the extent to which the principle is to be applied, seems necessary.
It is generally observed that in their enthusiasm to reform the criminals, the authorities
associated with penal institutions such as prisons and reformatories convert these
institutions into an earthly paradise providing all sorts of comforts to inmates.
Consequently, inmates often take the institution as an easy resort to spend their life
comfortably without shouldering any responsibilities. This obviously defeats the very
object of reformation. It is therefore, desired that life in these institutions must involve
certain degree of hardship and rigour so that the inmate is always reminded of his bitter
experiences of institutional life after his release. It will also help in keeping him away
from repetition of criminal acts. The penal system should be designed so as to ensure that
offenders improve by suffering for their offences.378 Unfortunately, the trend of judicial
sentencing in India is towards excessive reformation with the result punishment is losing
all its effect and consequently there is steep rise in crime rate.
9. The authorities concerned with the criminal justice administration should refrain
from projecting the image of offenders as "big shot". It must be remembered that
punishment fails when it raises the status of the convicted offender in his group.379 This
is particularly true with criminal gangs. The rewards so often announced by the
Government on the heads of notorious murderers, dacoits and criminals seem to
undermine this aspect of penal policy.380 To cite a concrete illustration, Mr. Kalyan
Mukherjee in his Book entitled, 'The Story of Bandit King'381 describes dacoit Malkhan as
"a man who wove terror and pity to create a legend". Again, the making of a film on the
Bandit Queen Phoolan Devi by film director Shekhar Kapoor and its clearance by the
Censor Board in September 1995 had projected this women-dacoit as a great Indian
personality forgetting all about her past murderous deeds. The patronage extended to her
377 AIR 1977 SC 1926.

378 Nigel Walker : Sentencing in a Rational Society (1972), p. 17.
379 Donald Taft : Criminology (4th Ed.), p. 295.
380 The dramatic surrender of Bandit Queen Phoolan Devi at Bhind in Madhya Pradesh before the
Chief Minister of Madhya Pradesh on 12th February, 1983 in a well arranged ceremony was
vehemently criticised for this very reason.
381 The book entitled the Story of Bandit King Malkhan written by Kalyan Mukheijee and published
by Lanner International 1985 is priced Rs. 250/- which in itself is enough to glorify the image of
notorious dacoit Malkhan of Madhya Pradesh.
by certain political parties further indicates how this fundamental principle of penal
justice has been flouted with impunity. Far from being punished for her criminal acts,
she was elected as the President of the Aklavya Sena, an off-shoot of Bahujan Samaj
Party and also a Member of Parliament (M.P.) for the 11th and 12th Loksabha.
To cite yet another illustration, the manner in which the governments of Karnataka
and Tamil Nadu were held to ransom by the sandalwood jungle dacoit Veerappan382 has
shaken the conscience of the nation. It was rather disgusting to note that the official
emissary R.R. Gopal set out to meet the outlaw four times during August-September,
2000 to secure the release of noted Kannad film Star Dr. Raj Kumar who was held as
hostage by Veerappan, but both the State Governments of Tamil Nadu and Karnataka
were unable to arrest the bandit. On the contrary, they surrendered to his threats and
released on bail several hard-core TADA detenues who had committed murders. During
all this time Veerappan moved in and out of the forest, and R.R. Gopal, the emissary
kept returning with interviews and video tapes of his meeting with the bandit. The
prevailing situation was indeed a sad reflection on our criminal justice delivery system
which drew strictures from the Supreme Court.
10. Most of the modem penologists are opposed to retention of capital punishment
on humanitarian ground. They argue that killing of man is inhumane. That apart, if an
innocent person is executed due to erroneous justice, that will do irreparable harm. Some
argue that putting an offender to death virtually amounts to a cold-blooded murder which
serves no useful purpose. The real object of punishment being reformation and not
destruction of the criminal, death sentence hardly serves any purpose. This enlightened
view is averse to the retention of capital punishment since it is grossly unjust and against
the principles of humanity.
But it must also be pointed out that despite growing disinclination for awarding
death penalty, there is a growing reluctance to abolish it. It is so because of a general
feeling that threat of infliction of death sentence itself proves as an effective deterrent.
Therefore, the ideal policy is to retain capital punishment in the Statute Book to be used
in 'rarest of rare' cases.383 It is true that the test of 'rarest of rare cases' has not been
acceptable to many because of the fact that what may appear to be a rarest of rare case to
one Judge may not necessarily appear to be so to another Judge.384 The principle has,
however, been incorporated in the judicial process by Section 235(2) of the Code of
Criminal Procedure, 1973 which provides that when a court awards death sentence by
choosing between it and any other alternative punishment permissible under the law,
then the reasons for doing so must be recorded by the Court.385
11. Punishment should include both compensation as well as imprisonment. As a
matter of general policy, it would be ideal to prescribe reparation or payment of
compensation for offences relating to property while penal sentence with or without fine
may be awarded for crimes against person, particularly for crimes against women and
children.
12. The efficacy of punishment, by and large, depends on its impartiality. The
382 Veerappan was operating in the sandalwood jungle ever since 1980's. He had cut down hundreds of
sandalwood trees, killed elephants for ivory and shot dead many policemen. He was shot dead by the
Tamil Nadu Police Special Task Force headed by Addl. IGP in an encounter at Paparapatti villege in
Dhermapuri on 18th October, 2004.
383Bachan Singh v. State of Punjab, AIR 1980 SC 898. For detailed discussion on capital punishment,
see Infra Chapter XVI.
384Kunju Kunju Janardhanan v. State of Andhra Pradesh, Criminal Appeal No. 511 of 1978 (AIR 1979
SC 916) see dissenting Judgment of Mr. Justice A.P. Sen.
385 See also Sunil Murmu v. State of Jharkhand, AIR 2004 SC 394; Rajbir v. State of Haryana, AIR 2011
SC 568; C. Muniappan & others v. State of Tamil Nadu, (2010) 9 SCC 567. Wherein the Apex Court
set out rules to justify imposition of death sentence under the 'rarest of rare' dictum.

penal policy should therefore, be completely free from considerations as to the caste,
creed, religion or status of the offender. It would be pertinent to note in this context that
the failure of criminal justice during Moghul-rule in India was solely due to the
discriminatory nature of Muslim law of crimes and evidence. Where the offender
happened to be a muslim, he could be awarded capital punishment on the evidence of an
infidel, that is, the non-believer in the Muslim faith. Further, the evidence of one
Mohammedan witness was equivalent to two Hindus and evidentiary value of two
female witnesses was equal to one male witness under the Muslim law of crime. A thief
could be convicted only on the evidence of two men. This amply evinces irrationality of
the Muslim criminal law and the bias which it carried against Hindus and women.386
13. As a sound principle of criminal justice, it is for the legislature to prescribe
maximum limit of punishment for every offence in the Penal Code without laying down
any minimum limit. This will enable law courts to award punishment according to the
requirements of individual offender thus infusing an element of discretion in judicial
sentencing which is sine qua non for individualised treatment model.
14. The system of solitary confinement has now become obsolete and outdated. It
is discarded because it is torturous and imposes excessive suffering on the offender.
Modern penologists treat solitary confinement as a method of putting offenders to death
without bloodshed.387 Confining convicts in isolated prison-cell s without any work
makes them idle and aggressive and they return to society as more dangerous and
aggressive criminals after their release. The torture of solitude and isolation is so
painful that it completely destroys the personality of the offender and he turns hostile
and indifferent to the community.
15. Punishment should always serve as a measure of social defence. This in other
words, means that elimination of incorrigibles and rehabilitation of corrigibles should
be the ultimate object of penal justice. An ideal penal policy should have enough
elasticity so as to mold itself with the changing needs of time and place.
The above generalisations with regard to punishment amply suggest that no single
theory whether deterrent, preventive, retributive or reformative can help in eliminating
crimes and criminals from society. It is only through an effective combination of two or
more of these theories that an ideal penal programme can be drawn to combat crimes.
Some socialist countries have explicitly mentioned in their criminal codes the aims of
sentencing the offender.388 This is indeed a welcome step which other countries should
take note of while formulating their penal policy.
I More recently, British and American penologist have shown considerable concern for
plight of the Victims' by focusing their attention on the diverse aspects of victimology.
This relatively new concept covers within its ambit not only the victims of individual
criminality, but also those of the abuse of criminal process and administration of justice.
For this purpose it is necessary to develop human rights consciousness among the law-
enforcement personnel particularly, the police and jail authorities. Undoubtedly, the
setting up of the National Human Rights Commission389 in 1993 in India is a welcome
step in this direction.
386 Paranjape N.V. Dr. : Indian Legal & Constitutional History (6th Ed. 2006) p. 181.
387 Sen, P.K. : Penology Old and New (1943), p. 35.
X For example, Yugoslavia Code of 1951, Art. 3 provides that the 'Purpose of Punishment' is :
to prevent activity perilous to society ;
to prevent the offender from committing criminal offence and to reform him ; to exercise educational
influence on other people in order to deter them from committing criminal offences ;
to influence development of social morals and social discipline among citizens.
389 The National Human Rights Commission of India was set up in 1993 headed by Justice
Venkatchalliah, former Chief Justice of India and four other members.
Penal Policy in India

The penal reforms in India during the past few decades have brought about a
remarkable change in the attitude of people towards the offenders. The old concepts
about crime, criminal and convicts have radically changed. The emphasis has now
shifted from deterrence to reformation of the offenders. The age old discriminatory and
draconian punishments no longer find place in the modem penal system. Indian
penologists are greatly impressed by the recent Anglo-American penal reforms and have
adopted many of them in the indigenous system. This does not, however, mean that India
did not have penal policy of its own prior to British influence. In fact, the Indian law
givers of the olden times were well versed in the science of penology and attached great
importance to penal sanctions. This is evident from the fact that Brahaspati Shastra
contains directions that an ideal penal policy always seeks the support of public opinion
or Lokniti. Again, Kautilya in his Arthashastra modelled his penal policy on utilitarian
principles taking into consideration various social factors, traditions and customs of the
people.
Expressing his views on punishment Kautilya commented that punishment if too
severe alarms a man, if too mild frustrates him, but if properly determined, makes man
conform to Dharma or rightous conduct. The function of law (Vyavhar) according to him
was to bring the wrong-doer on the right track by a change in his attitude. One peculiar
feature of the ancient penal system of India was that it acknowledged the supermacy of
Brahmins in matters of punishment. Perhaps the reason for this privilege to Brahmins
was that they were regarded as the spiritual leaders of Indian society and hence were
held in great esteem. This privileged section of the society enjoyed certain concessions
in matters of punishment. For example, where the normal punishment for an offence was
death and if the offender happened to be Brahmin, he was to be punished only with
shaving of his head.390 The leniency towards Brahmins in matters of punishment revived
once again during the British period though for different reasons. The British
administrators were basically against any discrimination in penal laws. But they
accepted leniency towards Brahmins in matters of punishment perhaps because they
wanted to gain the sympathy and support of this prestigeous class of Hindu society by
conceding certain concessions to them. These concessions were, however, withdrawn in
subsequent years of British rule in India.
As to the modes of punishment in ancient India, four main forms were known to
have existed. They were :
(i) Admonition or warning (Vakdanda),
(ii) Remonstrance (Prayaschitta),
(iii) Fine {Arthadanda), and
(iv) Imprisonment, death or mutilation (Vadhadanda, Mritudanda or Aung
Vichheda).
The first-offenders were usually punished with admonition. Remonstrance or
penance was regarded as an adequate punishment for improper acts perilous to society.
If the wrong-doer caused injury to someone's property or person, he was punished with
fine whereas those who committed serious crimes were imprisoned, amputated or done
away to death.
During the medieval period the Muslim rulers introduced their own penal laws in
India. The system being retributive in nature and irrational and discriminatory in its
application, failed to meet the ends of justice. The Muslim law arranged punishments
390Yajnavalakya, the great commentator on Hindu Jurisprudence, however, criticised partiality towards
Brahmins in the administration of justice in ancient times.

for various offences into four main categories,391 viz. (1) Kisa, (2) Diya, (3) Hadd and (4)
Tazeer.392 These punishments carried with them a bias and contempt for Hindus.
However, with the decline of Moghul rule, the British captured political power in India.
The irrationalities of Muslim criminal law provided an opportunity for British law
administrators to substitute their own system of laws with necessary modifications so as
to suit the needs of India. While introducing the principles of English criminal law and
methods of punishment in the Indian criminal justice system, they exercised great
caution to ensure that the changes did not offend the sentiments of the indigenous
people. The new system introduced by the British rulers was far more rational, impartial
and reasonable than their predecessors and was therefore, readily accepted by the people
of India. As already stated, the supremacy of Brahmins no doubt revived once again but
it was essentially a part of British diplomacy to divide and rule Indian community.
However, it came to an end in the closing years of British Company's rule in India.
The common methods of punishment introduced by British administrators in India
included the sentence of death, deportation, transportation, solitary confinement,
imprisonment and fines. Petty offences were punishable with fine. A well organised
system of police was introduced to suppress crimes and apprehend criminals.
The advance of penology in Anglo-American world during 18th and 19th centuries
had its own impact on Indian penal system. Particularly, during the last fifty years
significant penal reforms have been introduced in India. The sentence of transportation,
mutilation, solitary confinement, whipping or punishing the offenders in public place
are completely abolished and new reformative methods such as parole, probation, open
air prisons, borstals, reformatories, etc. have been adopted for the rehabilitation of
offenders. The modem techniques of handling the offender have proved to be a great
success inasmuch as they offer a 'chance' to an inmate to return to society as a law
abiding citizen and this inculcates in him a sense of 'hope' that he is going to be trusted
by the society after his release from the institution. Modem penologists generally agree
that reformation of offenders should be the basic purpose of every penal system but at
the same time the importance of deterrence should not be undermined. Reformation and
rehabilitation may be used as a general method of treating the offenders but those who
do not respond favourably to these corrective methods of treatment must be severely
punished. The penal measures must be directed to show society's abhorrence to crime.
It must, however, be stated that the Indian penal system seems to be less effective as
a control mechanism because it leaves many a criminals to enjoy the ill-gotten gains of
their criminal acts. Undoubtedly, the Indian penal policy is based on individualised
system but it seems to be working unjustly in favour of advantaged groups, particularly
the political high-ups1 and those who are in power, with the result the deterrent effect of
punishment is considerably diminished. This is more true with punishment in bribery and
corruption cases and big financial scams where influential persons are dealt with
leniently because they are more articulate and are capable of maneavouring things in
their«favour. Mild punishment or no punishment in such cases undermines the
391 Jain, M.P. "Outlines of Indian Legal History" (3rd. Ed.), p 405.
392 Kisa or retaliation meant, life for life and limb for limb. It applied to the cases of wilful killing and
gave the injured party or his heirs a right to inflict a like injury on the wrong-doer. Diya or diyut
meant blood money. Thus in case of murder, the heir of the murdered man could accept diya and
forego his right to claim death of the murderer. 'Hadd' under the Muslim criminal law signified
specific offences, which the society regarded as anti-social or anti-religious. These offences could be
either against God or against 'public justice'. The punishment prescribed under Hadd could not be
varied, increased or decreased. The Judge had no discretion in the matter. Most of the Hadd
punishments were severe and barbarous in nature Tazeer was an indefinite and discretionary
punishment awarded by the Magistrate.
effectiveness of punishment as a measure of crime control mechanism.2

Concluding Observation
While drawing up a penal programme for the prevention of crime and the treatment
of offenders, it must be borne in mind that human nature is complex and it is not possible
to comprehend it fully. This is the reason why all human being do not respond in the
same manner in a given situation. This basic realisation has led to the innovation of a
number of treatment methods for offenders. The prisons are no longer regarded as
custodial institutions instead, they have acquired a new dimension as treatment and
training centres for those who violate law. The emphasis has now shifted from custody to
training as re-education of Offenders and from mere isolation to rehabilitation in the
community. It has been realised that protection of society can be better ensured if the
offender is corrected and reformed through individualised treatment. Experience has
shown that mere treatment in institutions does not help in the ultimate rehabilitation of
the offenders because of the stigma society attaches to the released inmates. An adequate
after-care service programme is therefore, most vital for the correctional therapy of
release of prisoners.
An ideal penal policy should resort to reformation in case of juveniles or first
offenders and deterrence for recidivists and hardened criminals. It is for
1. The cases of former Prime Minister Shri Narsimha Rao; former Chief Minister of Maharashtra Shri
A.R. Antuley; Bihar supremo Lallo Prasad Yadav; Jharkhand Leader Shri Sibu Soren; sitting M.P.
from Bihar Shri Rajesh Ranjan alios Pappu Yadav; Tantrik Chandraswamy etc. are only a few
illustrations to support this contention.
2. See, Common Cause, (A Registered Society) v. Union of India, AIR 1996 SC 3538 (Illegal allotment of
petrol pumps and gas agencies by the then Petroleum Minister Capt. Satish Sharma). Also see, Shiv
Sagar Tiwari v. Union of India, AIR 1997 SC 1483 (Illegal allotment of 52 shops and stalls by the then
Housing and Urban Development Minister Smt. Shiela Kaul to her own favourites); Illegal and
arbitrary issue of licences in 2G Spectrum Scam involving the Union Minister for Tele-
Communicating Mr. A Raja, who is facing corruption charges before the Supreme Court (2011);
CWG-Scam (2010) involving suspended president of the organising committee for Commonwealth
Games and his colleagues as also some bureaucrats who are under probe of CBI for alleged large
scale bungling and corruption in allotting contract.
this reason that modem penologists lay greater emphasis on institutional methods of
treating the offender rather than the traditional methods of punishment which have now
become obsolete and out-dated. The penal system should be so devised as to cause
minimum of suffering to offenders and at the same time develop social morals and
social discipline among citizens. In short, it should neither be intolerably severe nor
unrealistically lenient. It must be stated that penal policy reflects the societal reaction to
crime and therefore, the motive for punishment should largely depend on the social
structure and accepted norms and values of a given society. Truly speaking, the need of
the day is for a rehabilitation programme for all inmates with a substantial diminution in
the use of imprisonment and incarceration.
Of late, there has been a sweeping transformation in the penal programmes of
progressive countries but there is still a greater need for some deeper insight into some
of the manifestations of crimes and criminals such as the scientific classification of
offenders, working of penal institutions and effectiveness of punishment393 and other
methods of treatment. Particularly in the sphere of penology the influences of
criminology and the law must be strengthened for effective realisation of the ends of
penal justice and humane treatment of offenders. This is possible by reaffirming faith in
fundamental human rights and realising the dignity and worth of human beings.
An effective criminal justice system inevitably needs to ensure that the society is
393 Srnmy Shradhanand alias Murli v. State of Karnataka, AIR 2008 SC 3040 (for details of
the case, Infra Chapter XVI.

protected against the criminals by stamping out criminal proclivity inherent in them.
This can be achieved by adopting a penal policy which imposes appropriate punishment.
Emphasising on this aspect of penal justice, the Supreme Court in Ankush Maruti Shinde
v. State of Maharashtra,394 reiterated that, "in perpetuating the sentencing system, law
should adopt the corrective machinery or the deterrence based on factual matrix.
Imposing of sentence without considering its effect on social order may be in reality a
futile
exercise ... It is therefore, the duty of every court to avoid proper sentence
having regard to the nature of the offence and the manner in which it was perpetuated or
committed."
It is hopefully expected that under this dispensation the implementation of criminal
justice system will work effectively in order to attain the desired objectives of
progressive penology.
394 AIR 2009 SC 2609.

Chapter XV
Forms of Punishment and Judicial Sentencing
I t is well known that punishment is one of the oldest method of controlling crime and
criminality. However, variations in modalities of punishment, namely, severity,
uniformity and certainty are noticeable because of variations in general societal reaction
to law-breaking. In some societies punishments may be comparatively severe, uniform,
swift and definite while in others it may not be so.395 This accounts for the variations in
use of specific methods of punishment from time to time.
An enquiry into the various forms of punishments which were in practice in
different societies through ages would reveal that forms of punishment were mainly
based on deterrence and retribution which have lost their significance in modem
penology. The primitive societies did not have well developed agencies of criminal
justice administration therefore, settlement of private wrongs was entirey a personal
matter and aggrieved party could personally settle the issue directly with the wrong-doer.
Blood-feud was one of the common modes of punishment in early societies which
was regulated by customary rule of procedure.396 It was undoubtedly a retaliatory method
which underlined the principle of lex talionis, meaning "eye for an eye and tooth for a
tooth". These blood-feuds sometimes led to serious clashes between the clans which
made life extremely difficult.
Sometime later, restitution for injury through payment of money compensation was
substituted for blood-feud. The quantum of compensation, however, varied depending on
the nature of the offence and the age, sex or status of the victim.
With the advance of time, primitive societies gradually transformed into civil
societies and the institution of kingship began to exercise its authority in settling
disputes. Thus private vengeance fell into disuse giving rise to public disposition of
wrong-doers.397 With the State assuming charge of adiministration of criminal justice, the
process of public control of private wrongs started which eventually culminated into
modern penal systems of the world. The institution of police as a law-enforcement
agency and the court as justice dispensation mechanism developed only after crime and
punishment became the matters of public control.
Dharmashastra Interpretation of Punishment
395 Sutherland and Cressey : Principles of Criminology (6th Ed.) p. 255.

396 Barnes and Teeters : New Horizons in Criminology (3rd Ed.) p. 287.
397 Ibid, p. 288.
Forms of Punishment and Judicial Sentencing 263
power to punish the law-breaker and protect the law-abider. According to Manu, King
was Danda Chhatra Dhari i.e., holder of Danda (Punishment) and Chhatra (Protector).
According to Gautam the word danda meant restrains. Vasista Samhita also upheld King's
power to punish and destroy the wicked and the evil. But "punishment must be awarded
after due consideration of place, time, age, learning of the parties and the seat of injury".
For Manu, Danda i.e., punishment was the essential characteristic of law. He justified
punishment because it keeps people under control and protects them. To quote him,
"punishment remains awake when people are asleep, so the wise have recognised
punishment itself as a form of Dharma"} Punishment maintains law and order, it protects
person and property. The fear of punishment is an essential attribute of judicial
phenomena. Offenders refrain from wrongdoing for fear of punishment and therefore,
punishment and law are inseparable.
Punishment'—Defined
Punishment under law is the authorised imposition of deprivations of freedom or
privacy or other facilities to which a person otherwise has a right, or the imposition of
special burdens because he has been found guilty of some criminal violation, typically,
though not invariably, involving harm to the innocent. Thus, punishment may be
defined as an act of political authority having jurisdiction in the community where the
harmful wrong (crime) is committed. It consists of imposition of some burden or some
form of deprivation by withholding some benefit or right to which a person is legally
entitled to enjoy.398
Punishment under law is fundamentally a technique of social control, and its
employment is justified to the extent that it actually protects such social justice as
society through law has achieved.399
Constraints in the use of punishment
Though punishment in its nature is an evil but it is an inevitable evil so far
protection of society from the criminals is concerned. However, there are constraints
in using punishment as a weapon of social defence. They may briefly be stated as
follows :—
1. "Punishment should not be so severe or torturous as to be inhumane or
cruel.
2. It should not be imposed in a manner that results into violation of offender's
protective rights. That is, punishment should not only be in accordance
with the procedure established by law but also conform to due process of
law.
3. The rule of proportionality should be the guiding principle of sentencing
policy. That is, graver the offence, more severe should be the punishment.
4. Where there is doubt as to the choice between two punishments, less severe
should be imposed as a general rule.
1. Manu Smriti VII 8. It says :
The history of early penal systems of most countries reveals that punishments
were tortuous, cruel and barbaric in nature. It was towards the end of eighteenth
century that humanitarianism began to assert its influence on penology emphasising
that severity should be kept to a minimum in any penal programme. The common
modes of punishment prevalent in different parts of the world included corporal
punishments such as flogging, mutilation, branding, pillories, chaining prisoners
together etc. Simple or rigorous imprisonment, forfeiture of property and fine were
also recognised as modes of punishment.
398 Chaturvedi J.C. : Penology & Correctional Administration (2006) p. 18.

399 Ibid.
Forms of Punishment.
Flogging
Of all the corporal punishments, flogging was one of the most common
methods of punishing criminals. In India, this mode of punishment was recognised
under the Whipping Act, 1864, which was repealed and replaced by similar Act in
1909 and finally abolished in 1955. The English penal law abolished whipping even
earlier. In Maryland (U.S.A.) whipping was recognised as late as 1953 although its
use was limited only to "wife-beating". Flogging as a mode of punishment is being
used in most of the middle-east countries even to this day
The instruments and methods of flogging, however, differed from country to
country. Some of them used straps and whips with a single lash while others used
short pieces of rubber-hose as they left behind traces of flogging. In Russia, the
instrument used for flogging was constructed of a number of dried and hardened
thongs of raw hide, interpersed with wires having hooks in their ends which could
enter and tear the flesh of the criminal. Flogging as a punishment has now been
discontinued in all civil sodties being barbarous and cruel in form.
Penological researches have shown that whipping as a method of punishment
has hardly proved effective. Its futility is evinced by the fact that most of the
hardened criminals who were subjected to whipping, repeated their crime. There is a
general belief that whipping may serve some useful purpose in case of minor
offences such as eve-teasing, drunkenness, vagrancy, shop-lifting, etc. but it does not
seem to have the desired effect on offenders charged with major crimes.
Mutilation
Mutilation was yet another kind of corporal punishment commonly in use in
early times. This mode of punishment was known to have been in practice in ancient
India during Hindu period. One or both the hands of the person who committed theft
were chopped off and if he indulged in sex crime his private part was cut off. The
system was in practice in England, Denmark and many other European countries as
well.
The justification advanced in support of mutilation was that it serves as an'
effective measure of deterrence and retribution. The system, however, stands
completely discarded in modem times because of its barbaric nature. It is believed
that such punishments have an inevitable tendency to infuse cruelty among people..
Branding
The convicts were branded as a mask of indeliable criminal record leaving visible
marks such as scars in the body parts which are normally noticeable. These permanent
indeliable marks not only served as a caution for the society to guard against such
hardened criminals but also carried stigma which deterred them from repeating the
offence.
Branding of prisoners was commonly used as a mode of punishment in oriental and
classical societies. Roman penal law supported this mode of punishment and criminals
were branded with appropriate mark on the forehead so that they could be identified and
subjected to public ridicule. This acted as an effectivere weapon to combat criminality.
England also branded its criminals until 1829 when it was finally abolished.
The system of branding was not uncommon to American penal system also. The
burglars were punished by branding letter "T" on their hand and those who repeated this
offence were branded "R" on the forehead. In Maryland (U.S.A.) blasphemy was
punishable with branding the letter "B" on the forehead. In India, branding was
practiced as a mode of punishment during the Moghul rule. This mode of corporal
punishment now stands completely abolished with the advent of humanitarianism in the
field of penology.
Stoning
Stoning the criminals to death is also known to have been in practice during the
medieval period. This mode of sentencing the offender is still in vogue in some of the
Islamic countries, particularly Pakistan, Saudi Arabia etc. The offenders involved in
sex-crimes are generally punished by stoning to death. The guilty person is made to
stand in a small trench dug in the ground and people surround him from all sides and
pelt stone on him until he dies. Though it is a punishment barbaric in nature, but due to
its deterrent effect, the sex crimes, and particularly, the crimes against women are well
under control in these countries.
Pillory400
Pillory was yet another form of cruel and barbaric punishment which was in
practice until the end of the 19th century. The criminal was made to stand in a public
place with his head and hands locked in an iron frame so that he could not move his
body. The offender could also be whipped or branded while in pillory. He could be
stoned if his offence was of a serious nature. At times, the ears of the criminal were
nailed to the beams of the pillory. Restraining physical movements of the criminal haa
the most agonising effect on him and it was believed that the deterrence involved in this
mode of punishment would surely bring the Offender to books.
The system of pillory existed slightly m different form during the Moghul rule in
India. The hardened criminals and dangerous offenders were nailed in walls and shot or
stoned to death The punishment undoubtedly was more cruel and brutal in form and
therefore, it finds no place in modem penal systems.
Hanging condemned prisoner to death in a public place was common mode of
pillory punishment in most part of the world until the middle of the twentieth century.
This mode of punishment is still in vogue for execution of death sentence. But hanging
of a condemned convict to death in public is strictly prohibited and it has to be carried
out in closed jail premises.
400 This type of punishment was also called poetic punishment though it was more often used
in fiction than in poetiy.

Amercement
Amercement was a financial penalty under the English penal system, which was
commonly used during the middle ages. It was imposed either by court or by the Peers. It
was similar to fine with the only difference that fine could be a fixed sum prescribed by
the statute while amercement was arbitrary. It was commonly used as a punishment for
minor offences as an alternative to fine.401
Fines
The imposition of fine was a common mode of punishment for offences which
were not of a serious nature and especially those involving breach of traffic rules or
revenue laws. This mode of punishment is being extensively used in almost all the
sentencing systems of the world. Fines by way of penalty may be used in case of
property crimes and minor offences such as embezzlement, fraud, theft, gambling,
loitering, disorderly conduct etc. Other forms of financial penalty include payment of
compensation to the victim of the crime and payment of costs of the prosecution.
Financial penalty may be either in shape of fine or compensation or costs.
The Indian Penal Code provides for imposition of fine—
(i) as the only disposition method;
(ii) as an alternative to imprisonment;
(iii) as a punishment in addition to imprisonment;
(iv) the actual amount of fine to be imposed is left to the discretion of the
sentencing court.
Fine as an alternative to imprisonment is used only against short-term
imprisonment i.e., imprisonment upto 2 or 3 years.
The real problem involved in imposition of financial penalties is the quantum of
fine or costs and enforcement of its payment. The usual methods of enforcement are
forfeiture of property,402 and threat of incarceration.403 Recovery of fines from the source
of income of the offender may also be one of the methods of enforcing this penalty.
In fixing the amount of fine or pecuniary penalty financial condition of the
convicted person must be kept in mind. Imposition of an exhorbitant sum by way of fine
beyond the means of the offender would be unrealistic and therefore, frustrate The cause
of penal justice.
Under the Indian law, the provisions relating to recovery of fines are contained in
Section 421 of the Code of Criminal Procedure, 1973. The Code provides that when a
Court imposes a sentence of fine or a sentence of which fine forms a part, it may direct
that whole or part of the fine may be paid as a compensation to the victim for the loss or
injury caused to him on account of the crime.1
In determining the amount and method of fine, the Court should take into
consideration the financial resources of the defendant and the nature of burden that its
payment will impose on him. Normally, Court should not sentence an offender only to
pay a fine when any other disposition is authorised by law, unless having regard to the
nature and circumstances of the crime and prior history and antecedents of the offender,
the sentence of fine alone is deemed sufficient for the protection of public interest.
While awarding the sentence of fine, the Court must keep in mind the gravity of
offence and the financial capacity of the offender to pay the amount of fine. Besides, it is
not desirable to impose fine in addition to death sentence or long-term imprisonment,
which may be an unnecessary burden on the family of the convicted person.
401 Chaturvedi J.C. (ed) : Penology & Correctional Administration (2006) p. 29.
402 Sections 125 to 127 and 169, IPC.
403 Nigel Walker : Sentencing in a Rational Society, (1972) p. 105.
Doubts have always been expressed about the adequacy of fine as a mode of
punishment in cases of economic offences such as adulteration, tax-evasion, hoarding,
bank frauds, FERA violations, financial scams, bribery etc. because of the fact that it
may prove highly discriminatory between offenders having means to pay and those
having no means to pay the fine. For rich and wealthy persons, payment of fine would
virtually mean purchasing the release.
While expressing its views about fine as a punishment the Supreme Court in Adamji
Umar Dalai v. State2 observed as follows :—
"In imposing fine, it is necessary to have as much regard to the
pecuniary circumstances of the accused person as to the character and
magnitude of the offence".
In the instant case, the appellant was convicted for the offence of blackmarketing
and sentenced to pay a fine of Rs. 1,500/- along with a substantial sentence of
imprisonment. The Court reduced the fine to Rs. 1,000/- keeping in view the fact that the
accused was merely a commission agent and the fine imposed by the trial court was
unduly harsh.
In case of default in payment of fine leading to imprisonment of the accused, the
ideal policy is to convert unpaid fine into imprisonment not automatically but by a Court
decision in each individual case.3
Forfeiture of Property
Section 53 of the Indian Penal Code provides forfeiture of property as a form of
punishment. There are two offences specified under Sections 126 and 169 of IPC which
provide for nfiscation of property besides the punishment of imprisonment with or
without fine. These sections are as follows :—
Section 126 provides that a person committing depredation on territories of Power at
peace with the Government of India shall be punished with imprisonment of either
description for a term which may extend to seven years and also liable to fine and the
property so used or intended to be used in committing such depredation or acquired by
such depredation, shall be liable to forfeiture.
1. Section 357, Cr. P. C.
2. AIR 1952 SC 14.
3. Dr. Chhabra K.S : Quantum of Punishment in Criminal Law In India, p. 213.
According to the provision contained in Section 169, IPC, a public servant who
being a public servant is legally bound not to purchase or bid for certain property, if he
does so either in his own name or in the name of another, or jointly, shall be punished
with imprisonment which may extend to two years or with fine, or with both, and the
property, if purchased, shall be confiscated.
Collateral Sanctions (or Penalties)
This form of sanction is commonly used in USA against the released offenders
with drug convictions. They are disentitled from receiving most public benefits including
federally funded housing, bars, driving licenses, right to vote or to rejoin their children
after release. Sex offenders are also subjected to such sanctions.
It must be stated that these legal restrictions differ from standard forms of
punishment for criminal behaviour such as prison sentence, parole, probation etc. that are
normally meted out under the criminal justice administration. They are created and
enforced by civil law and not by the criminal law, and are collateral in the sense that they
apply to individuals, and include sanctions or restrictions on certain types of
employment, housing, educational facility or welfare eligibility, exercise of voting or
parental rights etc. Such penalties or sanctions are mostly attended with non-violent drug
related crimes and sex offenders.

Deployment of such offenders for community service is also treated as a technique
of social policy in USA. In some states of USA, public employment is denied to
convicted felons. The American criminologists and sociologists view these collateral
penalties as an attempt to intertwine systems of criminal justice and social welfare.404
Imposition of such collectral sanctions depriving ex-offenders of their civil rights
are followed by consequences which are burdensome and therefore it has not been
adopted in the Indian Criminal Justice System.
Security Bond
A security bond for good behaviour though strictly speaking not a punishment,
may serve a useful purpose as a form of restraint on the offender.405 This may entail
compulsory treatment or supervision of the offender. The court may 'defer' sentence on
some offender conditionally subject to his normal behaviour. This 'conditional disposal'
of offender is increasingly being recognised as an effective mode of corrective justice in
modern penology.
The purpose of this nominal measure of punishment is to offer an opportunity to
the offender to become a law-abiding citizen and chances of his reformation are better
than those who are imprisoned or subjected to institutional sentence. That apart, the
family members of the offender are not adversely affected by this mode of punishment as
they are not deprived of their bread winner.
Ostracism
society, by not noticing or communicating with him/her. This form of punishment was
used in Ancient Greek city states of Athens. In India it still persists in the remote, rural
areas in the form of out-casting a person if he commits an act against the customary
norms of the society. In local usage it is called ‘. However, it is purely a form of social
bycott of an erring person, which has no recognition under the penal law of India.
Exile
It was a measure to keep the convict away from his country, state or city, being
threatened by imprisonment or death upon his unauthorised return. The system of exile
was extensively used in middle ages during the supremacy of Church and special forms
of exile were in vogue on a declaration by Church. It was used particularly for political
opponents of those who were in power. However, exile as a form of punishment fell into
disuse by the end of the nineteenth century. It now exists in milder form, which is
known as banishment.
Banishment
The practice of transporting undesirable criminals to far-off places with a view to
eliminating them from society has been commonly used in most parts of the world for
centuries. In England, war criminals were usually transported to distant Austro-African
colonies. The terms transportation, banishment, exile and outlawry though similar, have
different connotations. The difference, however, seems immaterial for the present
purpose. Exile as a device merged into outlawry with earlier religious element largely
supplanted by a political motive.406
French criminals were transported to French colonies in Guiana and New
Caledonia during nineteenth century. This mode of punishment was used only for
hopeless criminals, political offenders and deserters. There was no question of these
criminals returning alive as (hey were sure to die labouring in dense fever-infested
404 Christopher Mele & Teresa A. Millter (ed) : Civil Penalties & Social consequences (Rotledge, New
York, 2005) p. 87.
405 Sections 106 to 110 of the Code of Criminal Procedure, 1973.
406 Barnes and Teeters : New Horizons in Criminology, p. 249.
forests of the African island. The French system of deportation was most brutal, cruel
and inhumane. The system was abolished after the World War II when free French
Government was installed in that country.
Russian countries transported their criminals to Siberian penal camps. The
condition of these camps was far worse than those of French in Guiana. They were
virtually hell on the earth and have been called "House of the Dead" by Dostoevksi.
These camps were mostly meant for political prisoners who were completely deprived
of their civil rights and were long termers.407
The practice of transportation is known to have existed in penal system of British
India as well. It was popularly called 'Kalapani'. Dangerous criminals were despatched to
remote island of Andaman and Nicobar. It had a psychological effect on Indians because
going bgyond the seas was looked with disfavour from the point of view of religion and
resulted in out-casting1 of the person who crossed the seas. The practice came to an end
during early forties
407 For details see George Kennan's; 'Siberia and the Excile System' (New York, Century
1891).
after these islands came in occupation of Japanese. It was finally abolished in

1955.
Though a part of retributive justice, transportation as a method of punishment has
been defended by some criminologists particularly, Lombroso and Garofalo. Lombroso
favoured the system as it eliminates hopeless incorrigibles from native criminal
population and thus prevents them from demoralising influences. Garofalo supported
transportation as a punishment because of its deterrent effect. Considered from the
practical point of view the practice of transportation seems to have failed to deliver the
goods. It was not only primitive, cruel and barbaric but involved considerable burden on
State exchequer as it required regular establishment of penal settlements. The practice
has been abandoned by most countries excepting some Latin American States where it
still prevails as one of the vestiges of outmoded correctional justice.
It must, however, be noted that the practice of banishment still persists in miniform
called "extemment". The object of this method of punishment is to disassociate the
offender from his surroundings so as to reduce his capacity to commit crime. This form
of punishment has been accepted under the Indian penal system but it cannot extend
beyond India.
Solitary Confinement
Solitary confinement is another deterrent form of punishment in which the prisoner
is denied any kind of contract with any other person or outside world excluding the
prison guards. The prisoners are kept in isolation with no contract with anyone else and
are usually locked in small cellular room with smaller windows. The effect of this
isolation is so severe that the deprivation often causes mental illness and even death of
the prisoners before, their final release from the prison. However, it was defended as the
best way to keep the dangerous offenders out of touch with the people and spend time in
penance.
Confining the convicts in solitary prison-cells without work was a common mode
of punishment for hardened criminals in medieval times. Solitary confinement was
intended for elimination of criminals from society and at the same time incapacitating
them from repeating crime. The deterrence involved in this mode of punishment was
deemed necessary for prevention of crime. The monotony involved in this kind of
punishment had the most devastating effect on criminals. Man by nature is known to be
a social being hence he cannot bear the pangs of isolation and living in complete
seggregation from his fellowmen. Therefore, lodging of convicts into isolated prison
cells under the system of solitary confinement resulted in disastrous consequences and
the prisoners undergoing the sentence either died untimely or became insane.408 Besides,
they became more furious and dangerous to society if at all they chanced to come out of
the prison alive after completing their term of solitary confinement. As a result of these
ill-effects on prisoners the system of solitary confinement soon fell into disuse and it was
finally withdrawn as a measure of punishment.
Commenting on the torture and cruelty involved in solitary confinement, Dr. P. K. Sen
observed that it was perhaps the best way to put an end to the
criminal without resorting to bloodshed or murder.409 Significantly, this mode of
punishment is known to have found support in the ancient Indian penology as an
effective expiatory measure. It was believed that complete isolation of man provides him
better opportunity for penance and remonstrance and the feeling of guilt and self-hatred
408 Solitary confinement was first introduced in Pennsylvanian system in 1790 but the system was soon
replaced by Auburn system in 1819 due to its disastrous results.
409 Dr. Sen, P. K. : Penology—Old and New (1943) p. 33.
tends to bring about his reformation speedily

The provisions relating to solitary confinement are contained in Sections 73 and 74
of the Indian Penal Code. Section 73 provides that the Court may order that the offender
shall be kept in solitary confinement for any portion or portions of the imprisonment to
which he is sentenced, not exceeding three months in the whole according to the
following scale—
(i) for a period not exceeding one month if the term of imprisonment does not
exceed six months ;
(ii) for a period not exceeding two months if the term of imprisonment does not
exceed one year ;
(iii) for a period not exceeding three months if the term of imprisonment exceeds
one year.
Section 74, IPC limits the solitary confinement to seven days in any one month in
cases where the substantive sentence exceeds three months. That is to say, solitary
confinement must be imposed at intervals. A sentence inflicting solitary confinement for
the whole term of imprisonment is illegal, though it may be for less than fourteen days.410
The Madras High Court, in Munnuswatny v. State1 has held that the imposition of the
sentence of solitary confinement, although legal, should be very rarely exercised by a
criminal court. It should be administered, if ever, in most exceptional cases of
unparalleled atrocity or brutality. The Supreme Court has also reiterated this view in
Sunil Batra v. State411 wherein the Court held that cases involving solitary confinement
under Sections 29 and 30 of the Prisons Act, though legal, must be inflicted only in
accordance with fair procedure as it involves harsh isolation of the prisoner from the
society of fellow-prisoners which may cause his mental derangement. In Kishore Singh
Ravinder Dev v. State of Rajasthan,412 also the Supreme Court dealt with the parameters of
solitary confinement. Therefore, the general view is that solitary confinement, though
legal, must be inflicted sparingly and only in exceptional cases. Some critics even
suggest that the provision of solitary confinement should be scrapped from the statute
book because it is considered as inhuman torture by the U.N. Human Rights Charter.
Detention
Detention generally refers to holding a person either as punishment for a wrong, or
as a precautionary measure while carrying out crime investigation. Any form of
imprisonment can be called detention although normally it refers to person who is being
held in temporary custody without being charged with an offence. For example, Talibans
supporters who were captured in 9-11-2001
US invasion of Afghanistan have not been classified as prisoners by US government, but
have been consistently referred to as detenees, suggesting that they are only being held
temporarily white their, status is being investigated. Holding suspects under custody
pending investigation also amounts to detention.
House Arrest
Where a person is confined by the authorities to his/her residence under constant
surveillance of police, it is known as house arrest. It is a lenient alternative to
incarceration in prison and is usually used by the government against political dissidents.
The house arrestees generally do not have access to means of communication (telephone,
mobile etc.) and electronic communication is allowed, it will be laped or censored by the
authorities.
410 Nainsukh Mehtar v. Emperor, (1869) 3 Beng. LR. 49.

411 (1980) Cri. L.J. 1099 (SC).
412 AIR 1981 SC 625.

Custodial Sentence
It is a judicial sentence imposing a punishment consisting of mandatory custody of
a convict either in prison (incarceration) or in some other closed therapeutic institution
such as reformatory, rehabilitation centre etc. Thus, imprisonment is a common form of
custodial sentence, which may be either for life or for a prescribed specific period.
Imprisonment for Life
The Indian Penal Code prescribes five types of punishment, namely, (1) Death, (2)
Life imprisonment, (3) Imprisonment, which may be (a) rigorous or (b) simple, (4)
Forfeiture of property, and (5) Fine. Thus 'Imprisonment for life' has been authorised as a
form of punishment under Section 53 of the Indian Penal Code as amended by Act 26 of
1955 with effect from 1st January,
1956. The Supreme Court, in Naib Singh v. State413 held that the 'nature' of the punishment
of imprisonment for life is rigorous imprisonment only and a criminal court could under
Section 418 of the Code of Criminal Procedure, 1973 by issuing a warrant, direct the
execution of sentence of life imprisonment in a prison. The Criminal Law (Amendment)
Act, 1983 has incorporated imprisonment for life of either description, rigorous or
simple, in the amended Section 376 of the Indian Penal Code. There are in all fifty-one
sections in the Penal Code which provide for sentence of imprisonment for life.
Section 57 of the Indian Penal Code provides that in calculating fractions of term
of imprisonment, imprisonment for life shall be reckoned as imprisonment for twenty
years.414
The executive authorities are competent under Section 55, I.P.C. or under Section
433 (b) of the Code of Criminal Procedure, 1973 to commute sentence of imprisonment
for life to one of rigorous imprisonment not exceeding a term of fourteen years. Such
commuted sentence would entitle life convicts to be set free after undergoing the
maximum sentence of fourteen years inclusive of the period of remissions earned during
his incarceration. But in actual practice it is seen that the prison authorities are illegally
detaining the life convicts for a much longer period than the aforesaid maximum 14
years holding that the
413 AIR 1983 SC 855.

414 AIR 1997 SC 756 (757).
nature of sentence of life imprisonment does not alter by the aforesaid provisions of
Indian Penal Code or the Code of Criminal Procedure and the sentence remains a
sentence of life imprisonment and does not convert into a maximum sentence of
imprisonment for 14 years by these provisions.415
A landmark judgment of the Supreme Court handed down in Kartik Biswas v.
Union of India,416 deserves special mention in the context of Section 53 of IPC and
Section 32 of the Prisoners Act, 1900 which relate to imprisonment for life. The
Court made it clear that life imprisonment is not equivalent to imprisonment for 14
years or for 20 years. Elaborating the point further the Apex Court ruled that there
is no provision either in IPC or in Cr.P.C. whereby life imprisonment could be
treated as 14 years or 20 years without there being a formal remission by the
appropriate government. Section 57 of IPC which provides that imprisonment for
life shall be reckoned as equivalent to imprisonment for 20 years is applicable for
the purpose of remission when the matter is considered by the Government. But the
Prison Act and the rules made thereunder do not confer any authority or power to
commute or remit the sentence.
In the instant case, the petitioner was undergoing a life sentence for the offence
of murder and had already undergone more than 21 years imprisonment at the time
of filing the writ petition. His contention was that his further detention in jail was
illegal and therefore, he should be set free and also paid compensation for his
alleged illegal detention beyond the period of 20 years because the provisions of
West Bengal Jail Code and West Bengal Correctional Services Act, 1992 have
equated imprisonment for life to a term of 20 years simple imprisonment for the
purpose of remission. The petitioner also contended that life-imprisonment being a
distinct punishment from the punishment of rigorous or simple punishment, the
Government could not treat it as a rigorous imprisonment for life. He further
pleaded that prisons being meant for intermediate custody of those who are
awarded rigorous or simple imprisonment, a life convict could not be lodged in a
prison.
Disallowing the petition, the Supreme Court held that the plea that a person
convicted for imprisonment for life cannot be kept in jail is not tenable. The Court
further ruled that imprisonment for life is to be treated as rigorous imprisonment for
life and that it was unnecessary for the Legislature to specifically say that life
imprisonment means rigorous imprisonment for life.
In yet another case, the High Court of Delhi on 20th December, 2006 awarded
life imprisonment to Manu Sharma, son of Congress leader Vinod Sharma, for
murdering model Jessica Lai in 1999. Contrary to the general perception that life
sentence means 14 years' imprisonment, Manu Sharma will spend his rest of life in
jail as directed by the Court. The Court clarified that the Supreme Court has ruled
that a convict who is awarded life sentence would be imprisoned for the rest of his
life,3 unless the Government passes an order remitting the sentence to facilitate his
early release.
415 39th Report of the Law Commission of India on the Punishment of Imprisonment
for Life under the Indian Penal Code ; para 23 (1968).
416 AIR 2005 SC 3440.
3. Kartik Biswas v. Union of India, AIR. 2005 SC 3440.
Life imprisonment as an alternative punishment to Death sentence

The vexed question of award of death sentence to a cold blooded murderer or
life sentence once again came up before the Supreme Court in Swamy Shraddananda
alias Murli Manohar Mishra v. State of Karnataka.417 The Court in this case, made it
explicitly clear that a convict punished with life imprisonment means imprisonment
till his last breath. But once the judgment is pronounced the matter passes into the
hands of the executive and is governed by different provisions of law and there is no
guarantee that the sentence awarded to the convict by the Court after considerable
deliberation would be carried out in actuality. The remissions granted by the
executive to a life convict virtually reduces the sentence to not more than 14 years. It
is a matter of serious judicial concern that the sentence of life imprisonment awarded
to the convict as a substitute for death should be treated alike with the ordinary life
imprisonment given as the sentence of first choice.
The Apex Court in this judgment referred to the Report entitled "Lethal Lottery,
the Death Penalty in India", compiled jointly by Amnesty International India and
Peoples' Union for Civil Liberties, Tamil Nadu and Pondicherry based on the
Supreme Court judgments, on death penalty from 1950 to 2006. The Report
highlights the lack of uniformity and consistency in the award of death sentence
and/or its substitution by imprisonment for life. Some of the illustrative judgments of
the Supreme Court are as follows :
In Subhash Chander v. Kishanlal and others,418 four accused persons including
Kishanlal were convicted for multiple murders and sentenced to death by the trial
Court and the High Court confirmed the sentence. In appeal, the Counsel for
Kishanlal, on instructions from the convict, submitted that Kishanlal, if sentenced to
life imprisonment instead of death, would never claim premature release or
commutation of his sentence on any ground i.e., under Section 401 of Cr. P.C., Prison
Act, Jail Manual or other Statutes or rules meant for the grant of remission. The
Supreme Court agreed to the plea of the Counsel and sentenced Kishanlal for
imprisonment for rest of his life.
In Mohd. Munna v. Union of India,419 the Apex Court held that in the absence of
an order of remission formally passed by the appropriate government, there is no
provision in I.P.C. or Cr. P.C. under which a sentence of life imprisonment could be
treated as for a term of 14 years or 20 years and that a life convict could not claim
remission as a matter of right.
The Court expressed its anguish for States of Bihar and Karnataka life convicts
being granted remission and released from prison on completion of 14 years without
any sound legal basis and remission is being allowed to them in a routine manner
without any sociological or psychological, appraisal.
Having reviewed the law on award of life imprisonment as a substitute for
death, the Court in Swamy Shraddananda case* convicted him for life and directed that
he shall not be released from prison till the rest of his life.
It may, however be stated that most European countries have prescribed a
minimum period of incarceration after which a lifer may apply for release on
417 AIR 2008 SC 3040, for facts and details of the case see succeding chapter.
418(2001) 4 SCC 458.
419 (2005) 7 SCC 417.
4.AIR 2008 SC 3040.
parole provided he had exhibited good behaviour during the period he spent in
prison. Thus, in Germany, the minimum time to be spent by a person sentenced to
imprisonment for life is 15 years whereas it is ten years under the criminal law of
Finland. Similar law may be adopted in India so as to provide a humanitarian touch
to the sentencing of convicts with imprisonment for life.
Imprisonment
Imprisonment presents a most simple penal and common form of sentencing for
incapacitating the criminals. It has proved to be an efficient method of temporary
elimination of criminals apart from being a general deterrent and an individual
deterrent. Conditions of imprisonment in civilised countries have undergone radical
changes in recent decades. The minimum security institutions such as open prisons
and prison hostels are being increasingly used as modified forms of incarceration of
offenders.
Despite being a corrective measure, the most intricate problem involved in
imprisonment as a measure of punitive reaction to crime is the "prisonisation" of
offenders. The prisoner is confronted with the most crucial problem of adjustment to
new norms and environment of prison life. He loses his personal identity in the
process of adjustment and is converted into a mere impersonal entity.
Yet another set back of imprisonmont as a mode of punishment is its damaging
effect on family relationship of the offender. The offender loses contact with the
members of his family and if he happens to be the sole bread-winner, the
consequences are still worse. The members of his family suffer misery, starvation
and financial crisis. Depriving the offender of his family life for a considerably long
period creates new problems for prison discipline in form of homosexuality, bribery,
corruption, indiscipline, revolt etc.
Prisonisation of woman offenders presents many-fold problems before the
prison administration. Particularly, the women prisoners who are pregnant or have
babies need special care and attention as regards their food, medical treatment, health
and nourishment of the child. This casts additional financial burden on the prison
administration. This is one reason why the prison authorities aye more liberal in
granting remissions, furloughs, parole etc. to the women prisoners or in the
alternative, they are sent to women reformatories called as Nari Sudhar Graha.
In India, parole and furlough are now being extensively used as a part of penal
substitutes for mitigating the rigours of prison inmates. The All India Jail Reforms
Committee has further observed that the prisoners should be released

parole provided he had exhibited good behaviour during the period he spent in
prison. Thus, in Germany, the minimum time to be spent by a person sentenced to
imprisonment for life is 15 years whereas it is ten years under the criminal law of
Finland. Similar law may be adopted in India so as to provide a humanitarian touch
to the sentencing of convicts with imprisonment for life.
Imprisonment
Imprisonment presents a most simple penal and common form of sentencing for
incapacitating the criminals. It has proved to be an efficient method of temporary
elimination of criminals apart from being a general deterrent and an individual
deterrent. Conditions of imprisonment in civilised countries have undergone radical
changes in recent decades. The minimum security institutions such as open prisons
and prison hostels are being increasingly used as modified forms of incarceration of
offenders.
Despite being a corrective measure, the most intricate problem involved in
imprisonment as a measure of punitive reaction to crime is the "prisonisation" of
offenders. The prisoner is confronted with the most crucial problem of adjustment to
new norms and environment of prison life. He loses his personal identity in the
process of adjustment and is converted into a mere impersonal entity.
Yet another set back of imprisonmont as a mode of punishment is its damaging
effect on family relationship of the offender. The offender loses contact with the
members of his family and if he happens to be the sole bread-winner, the
consequences are still worse. The members of his family suffer misery, starvation
and financial crisis. Depriving the offender of his family life for a considerably long
period creates new problems for prison discipline in form of homosexuality, bribery,
corruption, indiscipline, revolt etc.
Prisonisation of woman offenders presents many-fold problems before the
prison administration. Particularly, the women prisoners who are pregnant or have
babies need special care and attention as regards their food, medical treatment,
health and nourishment of the child. This casts additional financial burden on the
prison administration. This is one reason why the prison authorities aye more liberal
in granting remissions, furloughs, parole etc. to the women prisoners or in the
alternative, they are sent to women reformatories called as Nari Sudhar Graha.
In India, parole and furlough are now being extensively used as a part of penal
substitutes for mitigating the rigours of prison inmates. The All India Jail Reforms
Committee has further observed that the prisoners should be released on furlough
after undergoing a specified period of imprisonment so that they maintain contact
with their relatives and friends and may not feel uprooted from society and
prevented from the evil effects of prisonisation.1
The social stigma attached to prisoners makes their rehabilitation more
difficult. Prisoners quite often feel that the real punishment begins after they leave
the prison institution. Sir Lionel Fox, the noted prison reformist of Britain introduced
Hostel system for inmales to prevent them from stigmisation and ensure them an
honourable life in society.
Be that as it may, the fact remains that imprisonment is still one of the
1. Bhikhabhai Devshi v. State of Gujarat and others, AIR 1987 Guj. 136.

most accepted forms of punishment throughout the world. With the modem
correctional techniques introduced in prison institutions, it serves as an efficient
measure of reforming the criminal and at the same time protecting the society from
anti-social elements. Prisonisation of offenders serves the dual purpose of preventive
and reformative justice at one and the same time.
Capital punishment
Of all forms of punishments, capital punishment is perhaps the most
controversial and debated subject among the modern penologists. There are
arguments for and against the utility of this mode of sentence. The controversy is
gradually being resolved with a series of judicial pronouncements containing
elaborate discussion on this complex penological issue. However, looking to the
variety of considerations involved in the problem, a detailed discussion on the subject
is deferred to succeeding chapter of the Book.420
The offences which are punishable with death sentence under the Indian Penal
Code include :
(i) waging war against the State (Sec. 121);
(ii) abetment of mutiny (Sec. 132);
(iii) Giving or fabricating false evidence leading to procure one's conviction
for capital offence (Section 194);
(iv) murder (Section 302);
(v) abetment of suicide committed by a child or insane (Sec. 305);
(vi) attempt to murder by life-convict, if hurt is caused (Sec. 307);
(vii) kidnapping for ransom, etc. (Sec. 364A), and
(viii) dacoity with murder (Sec. 396).
It is significant to note that though the aforesaid offences are punishable with
death but there being alternative punishment of life imprisonment for each of them, it
is not mandatory for the Court to award exclusively the sentence of death for any of
these offences. In fact, where the Court is of the opinion that the award of death
sentence is the only appropriate punishment to serve the ends of justice in a particular
case it is required to record "special reasons" justifying the sentence stating why the
award of alternative punishment i.e. imprisonment for life would be inadequate in that
case.421
The recent penological trend is to give primacy to reformative methods of
punishment which were hitherto used merely as supplementary measures. Hungary is
perhaps the first country to initiate the reformative educational method for its
prisoners. Besides fines, which Prof. Jescheck considered to be central sanction of an
up-to-date penal policy, the collateral sanctions such as prohibition from pursuing a
profession, disqualification of driving, local punishment and confiscation of property
are also being extensively used as sophisticated modes of punishment.422 According to
Dr. Joseph Folvari, these sanctions (measures) would refrain the perpetrator from
committing a further crime and at the same time would put an end to the possibility
of a further criminal act being committed. Needless to say that these measures would
be
equally effective if adopted in the Indian penal system.
Judicial Sentencing
420 Infra, next Chapter.

421 Sec. 354 (3) Cr. P.C.
422Hungarian Law Review No. 1—2, (1980) Preface.
The problem of judicial sentencing is closely related to the forms of

punishment. It is difficult to say that a Judge is guided by a single particular criterion
in imposing a sentence. A day-light bank robbery involving one or two murders may
be treated by some Judges as an act of warfare against the community touching new
depths of lawlessness justifying severely deterrent sentences for they want society to
be protected, law to reassert its authority and villains to get their deserves.423
Similarly, in case of a few youths attacking a couple in a car and raping the woman,
the Judge may be convinced that the perpetrators of such a crime must be denounced
and awarded the sentence of imprisonment for a term of few years totally denying
them the benefit of probation or borstal in view of the heinousness of the offence.
Expressing his views about judicial sentencing, Sir James Fitzjames Stephen
observed that it is proper to punish criminals for the sake of the public desire for
vengeance but they should not be condemned outright in the name of reinforcement
of the values of a society. There may be occasion where a Judge is conscious that the
values presented by the criminal law have already lost much of their credence
because of the rapidly changing public opinion and he may prefer to award a lighter
sentence than the one prescribed for that offence.424 Conversely, there may be a
situation where a Judge may choose to give legitimate expression to his denunciation
for offender's act by passing exemplary severe sentence.425
Indeed, a Judge may be justified in awarding a severe and exceptionally lengthy
sentence on grounds of dangerousness of the crime or a lighter one for rehabilitation
or reformation of the criminal, but a sentence out of all proportions to the crime is
repugnant. In other words, the sentence must be warranted by the crime. A kind of
balance between crime and punishment therefore, seems inevitable for judicial
sentencing. As Sir Leon Radzinovicz rightly observed,
"the perplexities, conflicts and disagreements of Judges on the point
of exactness of sentence cannot be so easily resolved but they testify
to an apparently ineradicable sense that as wages should be to work,
punishment should be to crime ; the more difficult or valuable the
work, the higher should be the wages, the worse or more damaging
the crime, severer should be the punishment. In both fields, there is a
customary level of expectation".426
Judicial authorities all over the world have been struggling hard to establish a
coherent set of principles for judicial sentencing but the fundamental question is as
to which of the four, namely, deterrence, retribution, prevention or reformation,
should take precedence in the process of sentencing. It is on this point that the
judges, the lay yers, the magistrates and the people in general disagree. The crucial
problem in context with judicial sentencing is whether it is the 'protection of society,
or the prevention of crime', which should gain primacy in awarding the sentence.
However, in the absence of any specific criterion, it would be worthwhile to suggest
some general guidelines relating to judicial sentencing :
1. The personality of the offender rather than the gravity of the offence should
be the guiding factor in judicial sentencing. The age, antecedents, past criminal
record, responsiveness and prospects of reformation of the offender as also the
423 Radzinovicz & Joanking : The Growth of Crime (1st Ed. 1977), pp. 194-195.
424 Observations made by Mr, Justice Krishna Iyer in Ediga Anamma v. State of Andhra
Pradesh, AIR 1974 SC 799.
425 Ranga Billa Case, AIR 1981 SC 1572.
426 Leon Radzinovicz : The Growth of Crime, p. 202.
278 Criminohgy and Penology
circumstances in which he committed the crime, should be taken into consideration

while deciding the quantum of punishment. As rightly pointed out by Bentham,
quantum of punishment should vary according to the offender's capacity to suffer. He
enumerated as many as thirty-two invariables of capacity for suffering some of
which are sex, age, physical and mental health, religion, lineage etc. The use of
individualised methods of punishment such as probation, parole, suspension of
sentence, etc. may achieve some element of rationality in the penal policy.
2. Humanity, consciousness about societal values and frugality are some of the
limitating factors in judicial sentencing. Disparities in sentencing may be due to
disparities between individual Judges, disparities between offenders convicted for the
same offence under similar situations, disparities due to locational comparisons or
disparities due to racial or class prejudices427 etc. These are rather inevitable in the
modem complex society.
It must be noted that sentencing is the most critical stage in administration of
criminal justice. As Tappan rightly pointed out, "disparity in sentencing not only
offends principles of justice but also affects the rehabilitative process of offender and
may create problems like indiscipline and riots inside the prison."428 Expressing a
similar view the Supreme Court in Asgar Hussain v. State of U.P.,429 observed that
disparity in sentencing creates hostile attitude in the mind of the offenders and
reduces the chances of their re-socialisation as they react strongly against the
discriminatory treatment meted out to them.
3. The discretion of the Judge in matters of sentencing is limited by the penal
law itself which sets a legal maximum sentence for a particular offence. However,
there may be mandatory penalties for certain offences where the law gives the court
no choice. For example, the offence of murder carries the minimum sentence of life
imprisonment under section 302 of the Indian Penal Code.
The terms minimum and maximum may serve to mark the extremes of
punishment, which require equal attention. Spelling out the limits of minimum
punishment, the Supreme Court held that, "the value of the punishment must not be
less in any case than what is sufficient to outweigh that of the profit of
427 Black people in U.S.A. received severer sentence than the Whites simply because of the racial
prejudices. The Joggers Rape Trial Case of August 1990 in U.S.A. has been called by the Blacks
as Judicial murder by the Supreme Court of America for its alleged anti-black attitude in
sentencing a Black to death for the rape of a white woman without any substantial evidence.
428 Tappan RW. : Crime, Justice and Correction (1960) p. 446.
429(1974) 2 SCC 518.
the offence. By the profit of the crime, must be understood not only pecuniary profit,
but every advantage real or apparent, which has operated as a motive to the
commission of the crime."430
As regards the parameters to decide the maximum punishment, Bentham has set
the trail of caution and observed.
"Punishment, whatever shape it may assume, is an evil....the
minimum punishment is more clearly marked than its maximum.
What is too little is clearly observed than what is too much. What is
not sufficient is easily seen, but it is not possible so exactly to
distinguish an excess. An approximation only can be attained" An
error on the maximum side emanates from antipathy or a want of
compassion for individuals who are represented as dangerous and
vile, punches them to an undue severity.431
4. For professional criminals or political terrorists who indulge in ruthless
violence and are a potential danger for the community, an extended period of
preventive detention after serving the penal sentence may prove appropriate keeping
in view the public safety and security against these dangerous hardened offenders. For
this purpose, a distinction has to be drawn between hardened criminals and the
recidivists. The former are 'positive danger' to society whereas the latter are a
nuisance rather than a threat.
5. The offences committed by public servants should be severely dealt with and
deserve no leniency in sentencing. Particularly, a public servant found guilty of
accepting or obtaining illegal gratification432 or persons guilty of food adulteration433 or
any other socio-economic offence such as hoarding, profiteering, blackmarketing, tax
evading etc. must be sternly punished as they are a menace to society.
6. Judicial sentencing is a personal responsibility of the Judge, a matter for his
conscience alone. Any intrusion into his decision should be considered most
unreasonable. But things have now considerably changed. It is said that today 'even
Judges are judged'.434 They are expected to be fair and free from prejudices in
pronouncing sentences. A Judge should also be aware of the various issues involved
in the crime and the factors influencing the criminal who is standing trial before him.
Though maturity and experience are great merits of a sentencer, but his decisions
should not be out of tune with the advancing society. In other words, he should
command public confidence
430 Swamy Sharaddananda v. State of Karnataka, AIR 2007 SC 2445.

431 Ibid.
432 Som Prakash v. State of Delhi, (1974) 4 SCC 84 ; see also Suresh Chandra v. State of Gujarat,
1976 SCC (Cri) 145.
433 Ishwar Das v. State of Punjab, AIR 1972 SC 1295 ; P.K. Tejani v. M. R. Dange, AIR 1974 SC
288.
434 For example, 25 Judges of Punjab and Haryana High Court went on mass casual leave on
April, 19, 2004 following differences with C.J. B.K. Roy. See Vikas Vasistha v. Punjab and Haryana
High Court, (2004) 8 SCALE 233 (SC).
280 Criminobgy and Penology
through his pragmatic pronouncements.435 Needless to say, that despite legal

training and limitations of criminal law, personal backgrounds and attributes of the
Judge do play a vital role in judicial sentencing.
7. Though remotely, the judicial sentencing is likely to be influenced by the
manner and mode of appointment of the Judges, particularly in countries where the
Judges are elected like legislators and are answerable to the electorates, they are
prone to fall an easy prey to unjust local prejudices and pressures. Therefore, political
element should not be allowed to enter into the powers of appointment of judicial
magistrates.
In this context working of the criminal courts in USA wherein the prosecutor or
the Prosecutor Attorney plays a quadruple role as an investigator, magistrate, solicitor
and an advocate, deserves a special mention. It is essentially a political appointment
and in fact a stepping stone for a high political office. Obviously, the political nature
of the prosecutor's office does more harm than good to the community because he
cannot afford to overlook the interests of politicians who have been instrumental in
getting him appointed to this prestigious office.
8. The standards of sentencing are bound to differ depending on whether the
Judges are drawn from among the lawyers or laymen from public. It is generally
presumed that lawyers with adequate legal training are better sentencers for the
reason that they are able to take an account of genuinely relevant factors, can weigh
arguments and reach conclusions and beyond all, they are rigid and less vulnerable to
pressures. On the other hand, the yard-stick for lay-Judges is often the robust
common sense guided by genuine human problems and they are fallible to pressures
from those around them. The general trend today is to have the criminal courts staffed
by well qualified lawyers.
9. Sentencing by the Judge largely depends on the way and the manner in
which the case is presented before him by the police or the prosecutor. Therefore,
conviction or acquittal shall inevitably depend on the evidence put forth by these
personnel which may be biased or mistaken thus jeopardising the interests of
criminal-justice. Miscarriage of justice is generally due to distortion or manipulation
of evidence or the witnesses turning hostile due to pressure or threat exercised by the
dreadful offender.
Sheldon Glueck has suggested that a pre-sentence report may provide a useful
information and guidance to the sentencing authority in taking decision regarding the
guilt of the accused and sentence or treatment to be accorded to him. It may enable
the magistrate to seek advice from experts like psychiatrists or probation officers
regarding antecedents of the offender and desirability of appropriate sentence keeping
in view the possible impact of that sentence on the offender. The importance of pre-
sentence report has been realised by most progressive penal systems of the world and
they have incorporated relevant provisions to this effect in their penal laws.436
10. In order to eliminate chances of injustice to the accused due to miscalculated
sentencing, the law provides for appeal to higher courts. The appellate courts not only
remove individual injustices but also formulate precedents which the subordinate
courts are bound to follow in their verdicts. This is indeed an effective method of
435 The decision given by Bhopal District and Sessions Judge Mr. M. D. Deo in the historic Bhopal
Gas Tragedy case (Union of India v. Union Carbide Corporation) on 17 December, 1987 ordering
the Union Carbide Corporation to pay a sum of rupees 3,500 millions as substantial interim
compensation for the Gas victims, is a befitting illustration on the point although it relates to a
claim for damages under tort-law. On appeal, the High Court of Madhya Pradesh reduced the
amount of interim relief to Rs. 250 crores. The Supreme Court, however, agreed at an out of
court settlement between the Union Carbide U.S.A. and Government of India for a lump sum
amount of Rs. 470 crores to be paid to the Govt, for gas victims.
436 Sec 7 of the Probation of Offenders Act, 1958.
eliminating possibilities of miscarriage of justice.

The problem of a uniform sentencing policy has been engaging the attention of
penologists for quite some time. It is true that "sentencing is not like baking a cake,
you cannot lay down in advance, for every case, the exact ingredients and
proportions, the exact temperature required...In sentencing, courts are not dealing
with standard ingredients but with an infinite variety of offences, offenders and
situations."437 Nevertheless, there ought to be some definite criteria to decide the
sentence. Taking a lead in this direction, the Federal Authorities in U.S.A. established
sentencing Institutes in 1957 to impart some sort of training for magistrates in matters
of sentencing.438 In England, vigorous efforts have been made by Lord Chief Justice
ever since 1970 to ascertain definite principles of sentencing. The length of the prison
sentence is usually commensurate with the seriousness of the offence as provided
under the Criminal Justice Act, 1991. Section 2(2) of the Act further empowers the
court to imprison a person convicted of a violent or sexual offence for longer than the
seriousness of the case requires, but not exceeding the maximum in any case. Another
Act passed by the British Parliament namely, the Crime (Sentences) Act, 1997 has
removed the provision of remission from the penal code. In order to provide
safeguard against the arbitrary use of judicial discretion, efforts are being made to
introduce computerised sentencing system ever since 1998. It is to be seen as to how
far it succeeds in improving the sentencing pattern under the British penal system.439
In the Indian context, sentencing, by and large, depends on the judicial
discretion within the legal limits of penal provisions of the Indian Penal Code and
other statutory enactments. However, setting up of a few more training institutes440 for
new entrants in judicial service and refresher courses for the working Judges may be
useful in equipping them with the necessary know-how about the techniques of
judicial sentencing which may go a long way in reasserting their role as dispensers of
even-handed justice.
The magistracy, while awarding the sentence must bear in mind that grading of
various offences in 'he Penal Code is based on their gravity, and the gravity of an
offence is generally assessed in terms of social danger, social, disapprobation ; alarm
it causes in the society and depravity of the offender. It is for this reason that quite
often similar offence committed by two different persons is looked at differently in
the matter of sentencing. The criminal act, or the crime, being related to social
behaviour, there cannot be any exact measuring rod to assess its intensity and
magnitude and therefore, any mathematical accuracy in punishment is a myth. It is
for this reason that punishment has to be awarded within the broad parameters set by
the penal court, its exact quantum being left to the judicial discretion of the
sentencing authority.
The Supreme Court in Adu Ram v. Mukna and others,* highlighted the principle
of proportionality between crime and punishment and held that social impact of
crime cannot be lost sight of and the offence of murderous assault under section 300
read with sections 149, 304, Part I of I.P.C. per se requires exemplary treatment. The
criminal law adheres to the principle of criminal liability according to the culpability
of each kind of criminal conduct. Though the judges must affirm that punishment
437 Radzinovicz and Jenking : The Growth of Crime (1977), pp. 217-18.
438 Sentencing Councils are also set up in USA to discuss the problem of sentencing and adopting a
uniform policy on judicial sentencing.
439Katherine S. Williams : Textbook on Criminology (2001 Indian Ed.) p. 43.
440 In 1994, it was decided to set up an All India Judicial Services Training Institute at Bhopal
which came into existence and started functioning from September 5, 2002. It has been named as
'National Judicial Academy' and imparts training to judicial officers including new entrant civil
judges. Many states including State of Madhya Pradesh have set up judicial training institution
for new entrants as Civil Judges or magistrates.

always fits to the crime but in practice sentences are generally determined by other
considerations. Sometimes correctional needs of the perpetrator justify leniency in
sentencing. The Court lamented that the practice of punishing serious crimes with
equally severe punishment is now unknown to the civil societies and there has been a
departure from the principle of proportionality in recent times. The Court noted that
imposition of sentence without considering its effect on the social order leads to
some undesirable practical consequences. Particularly, crimes against women,
children, dacoity, treason, misappropriation of public money and offences involving
moral turpitude have great impact on social order, and per se require exemplary
punishment in public interest. Any liberal attitude by imposing lenient sentences or
taking sympathetic view on account of lapse of time in respect of such offences will
be counter-productive in the long run and will jeopardise the "social interest which
needs to be strengthened by the string of deterrence inbuilt in the sentencing system."
In the instant case the appellants were charged of murderous assault in course of
a quarrel. They had used lathis and axes and beaten the deceased who succumbed due
to grievous injuries. They were sentenced to six years for the offence under section
300 read with Sections 149 and 304 Part I. The Supreme Court dismissed the appeal
and held that the case ought to have been covered under section 304, Part II of I.P.C.
Emphasising the need for judicious sentencing, the Supreme Court in Siriya
alias Shrilal v. State of M.P.,2 observed :
"law regulates social interests, conflicting claims and demands.
Security of persons and property of the people is an essential
function of the State which could be achieved through the instrumentality of
criminal law. Undoubtedly, there is a
1. AIR 2004 SC 5064.
2. A.I.R. 2008 SC 2314 (Paras 7 & 8). In this case, the accused raped his own 13 years old
daughter and the Sessions Court, Guna (M.P.) sentenced him to imprisonment for life and a
fine of Rs. 10,000/- and the High Court affirmed the conviction. In appeal, the Supreme Court
upheld the sentence finding no reason to interfere as the accused father deserved no sympathy
in the matter of punishment.
cross-cultural conflict where living law must find answer to the new
challenges and the Courts are required to mould the sentencing
system to meet the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be object of law which must be
achieved by imposing appropriate sentence. Therefore, law as a
corner-stone of edifice of 'order' should meet the challenges
confronting the society."
Quoting Friedmann's observation in his classic work, 'Law in Changing Society'
the Supreme Court pointed out that criminality continues to be, as it should be, a
decisive reflection of 'social consciousness of society'. Therefore, in operating the
sentencing system, law should adopt the corrective machinery or the deterrence,
based on factual matrix. The sentencing process should be stem where it should be,
and tempered with mercy where it warrants to be so. Continuing in the same vein, the
Court observed that, "undue sympathy to impose inadequate sentence would do more
harm than good to the justice system as it would undermine public confidence in the
efficacy of law and society would no longer endure under such serious threats. It is
therefore, the duty of every Court to award proper sentence having regard to the
nature of the offence and the manner in which it was perpetrated or committed etc}
Commenting on the desirability of a rational penal policy in the matter of
sentencing by Courts, the American Supreme Court in Dennis Councle Me G. Dautha v.
State of California,441 observed that no formula of a foolproof nature can be laid down
441 402 U.S. 183 : 28 L.D 2d 711.

which would provide a reasonable criterion in determining a just and appropriate

punishment in the infinite variety of circumstances that may affect the gravity of the
offence. In the absence of a foolproof formula, for correct assessment of the sentence,
various circumstances relevant to the nature or gravity of of the crime should be
considered by the Court while using its discretionary judgment in award of sentence
to the accused person.
Chapter XV
Capital Punishment
Ascriminal
a rule, punishability, by and large, depends on the degree of culpability of
act and the danger posed by it to society as also the depravity of the
offender. The risk of penalty is the cost of crime which the offender has to pay. When
this cost (suffering) is high enough as compared with the benefit which the crime is
expected to yield, it will deter a considerable number of people. This is true with
crimes punishable with death sentence as well.
A dispassionate analysis of criminological jurisprudence would reveal that
capital punishment is justified only in extreme cases in which a high degree of
culpability is involved causing grave danger to society. It must, however, be added
that a mere objective consideration of dangerousness of the act (crime) to society by
itself would not be enough to assess perpetrator's culpability but his personal
attributes and circumstances and gravity of the offence have also to be taken into
consideration to decide whether or not he deserves capital punishment. Thus,
punishment should be commensurate among other things, with the gravity of
offender's act and societal reaction to it.
Experience has shown that despite consciousness about the desirability of
reformative justice, at times unequivocal stand is unavoidable in extreme cases where
offender has been fully aware of the fatal consequences of his gruesome and brutal
crime and there were no mitigating circumstances. In such aggravating situations,
though unwantonly, law must take a firm stand and not hesitate even to award the
extreme sentence of death to the offender. These situations have found expression in
the penal law of India and other countries of the world.
Retributive Effect of Death Penalty
Death sentence has been used as an effective weapon of retributive justice for
centuries. The justification advanced is that it is lawful to forfeit the life of a person
who takes away another's life. A person who kills another must be eliminated from
the society and therefore, his execution is justified.442 The motive for death penalty
may include vengeance which is a compensatory and reparatory satisfaction for an
injured party, group or society. When regulated and controlled by law, vengeance is
also socially useful. Legal vengeance solidifies social solidarity against law-breakers
and probably is the only alternative to the disruptive private revenge of those who
feel harmed.443
Commenting on the effectiveness of death penalty, Thorsten Sellin observed that
it has failed as a measure of social protection, so also as an instrument of retributive
justice. Citing illustrations from United States to support this
442 David Dressier : Reading in Criminology and Penology (Second Ed) p. 501.
443 Ernest Van den Haag : Is Capital Punishment Just? p. 406.
Capital Punishment 285
contention, he argued that the number of executions are far less than the number
of murders committed annually which clearly indicates that death sentence is no
longer looked with favour and is falling into disuse rapidly. Another argument which
needs attention regarding declining effect of death penalty is that even after the award
of this sentence, in most cases, it is either commuted or pardoned in the last resort and
its final execution is seldom carried out.
Deterrent Effect of Capital Punishment
The fear of being condemned to death is perhaps the greatest deterrent which
keeps an offender away from criminality. Death penalty in case of murder serves as
an effective deterrent to remind the murderer about the severity of law towards this
heinous crime and certainly helps in reducing the incidence of homicide. The old
methods of public execution which are now wholly discarded, were directed to make
the sentence as frightening as possible. The present trend, however, is to keep the
number of offences punishable by death to a minimum and avoid death penalty as far
as possible but its retention in the statute book is favoured even to this day.
Modes of Execution
An appraisal of the administration of criminal justice of ancient times reveals
that death penalty was commonly used in cases of heinous crimes. However, there
was great divergence as to the mode of its execution. The common modes of
inflicting death sentence on the offender were crucification, drowning, burning,
boiling, beheading, throwing before wild beasts, flaying or skinning off alive,444
hurling the offender from rock, stoning,445 strangling, impelling, amputating, shooting
by gun or starving him to death. Hanging the offender by neck till death in public
places has been a common mode of putting an end to the life of an offender. These
draconian and barbarous methods of punishing criminals to death were justified on
the ground that they were the quickest and easiest modes of punishment and at the
same time carried with them an element of deterrence and retribution. They have,
however, fallen into disuse with the advance of time and modem humanitarion
approach to penology.
Deterrence has been defined by Dr. Johnson as discouraging the offender by
terror or naked fear from repeating his crime and at the same time preventing others
from following his path. It must, however, be remembered that deterrence is a
relative term, its seriousness depending on the category of the offender. The stigma
attached to arrest, trial, conviction and sentence may have little effect on habitual
offenders or hardened criminals but may act as a powerful deterrent to an average
law-abiding citizen. Undoubtedly, of all the punishments, death penalty appears to be
the strongest deterrent for there can be nothing for which a man would be willing to
give away his life.
At present, the common modes of execution of death sentence which are in
vogue in different parts of the world are asphyxiation (strangulation) electrocution,
guillotine, shooting, gas chamber, hanging, lethal injection etc.
The method of execution by electrocution consists in subjecting the condemned
prisoner to heavy charge of electric current. The method was first used at Auburn
State Prison, New York on August 6, 1890 and is now being extensively used in
USA, UK, USSR, Japan, and other European countries.
The use of Guillotine for execution of criminals was introduced in France in
1792. It was a kind of machine erected for execution of criminals in western
444 Skinning alive used to be inflicted in ancient Assyria, Saytha and Persia (See
Rawlinson : Ancient Monarchies, Vol. 1, p. 478).
445 Stoning was a characteristic method of execution among ancient Hebrews for offences of
adultery, unchastity, blasphemy, idolatry, dishonouring p. cents etc. It is still in use in the
Arabian countries of the Middle East.

countries, particularly in France, Scotland and England.
Shooting as a mode of execution of a condemned person was used for offences
tried in military courts. In Russia, China446 and some eastern European countries,
death by firing squad is the customary mode of execution.
More recently, gas chambers are being used in the western world for execution
of death sentence. The condemned prisoners are put to death by being stripped in a
chair in a sealed gas chamber into which poisonous fumes of cynide are injected. The
method prevailed in USA and was extensively used by Nazi Germany in killing Jews
and other unwanted racial minorities.
The method of hanging the condemned prisoner till death has been commonly
in use in almost all the countries since ages. In India public hanging is now held to be
unconstitutional.447
Death sentence by means of lethal injection is relatively a later development. It
was first adopted in Okhalahoma (USA) in 1977. The injection is administered
intravenously with delicate skilled operation. It is preferred because it ensures
instantaneous death without any suffering. It is in use in USA, UK, Canada and other
developed countries.
In Iran, the offences of murder, rape and sexual assault are punishable with
death penalty. The offenders found guilty of these offences are publicly hanged to a
crane used for lifting heavy loads and put to death. The unmarried girls are, however,
exempt from death penalty even though the offence committed by them is punishable
with death sentence.
As per the Amnesty International annual report (2004) on judicial execution,
nine out of ten executions took place in peoples' Republic of China which carried out
at least 3400 executions to crackdown hard core criminality, particularly those
involving in drug trafficking and corruption cases.
As a measure of policy against the use of death sentence, the European Union
and Council of Europe require abolition of death penalty by the State wishing to join
them, but are willing to accept a moratorium as an interim measure. Thus, Russia
became member of the Council of Europe although it practices death penalty in law
but has never used it since it became a member of the council. So also is the case of
Latavia which is a member of European Council.
446 In China, death sentence is awarded for the offences of murder and drug trafficking. As per
section 49 of the Chinese Criminal Code, the minimum age of the convict for award of death
sentence should be 18 years. The rate of award of capital sentence is highest in China as
compared with other nations. In 2005 as many as 10 thousand prisoners were awarded death
sentence while in 2007 this number was seven thousand.
447 Lachma Devi v. State of Rajasthan, (1986) Cri. L.J. 364.
Capital Punishment in Ancient Rome and Greece

In andent times, the law administrators unflinchingly executed murderers
because they believed that "the life of each man should be sacred to each other
man".448 They realised that it is not enough to proclaim the sacredness and
inviolability of human life, it must be secured as well, by threatening with the loss of
life of those who violate what has been proclaimed invioable—the right of innocent
to live. Murder, being the worst of crimes, must deserve the highest penalty which is
death sentence. This shall also be in accordance of the principle that punishment
must be in proportion to the gravity of the offence.
Ancient Romans accepted the deterrent value of death penalty. Under the
Roman criminal law, the offender was put to public ridicule and his execution took
the form of a ceremony. Death was caused to the condemned person in a most
tortuous manner. For example, one who killed his father was sewn in a sack along
with a live dog, cat and a cobra and thrown into river. The object was to make him
die most painfully. The sentence of death could be awarded even to a debtor who
was unable to pay off the debt of his creditor. Thus, a creditor who found that his
debtor was unable to pay off the debt, could vent his wrath upon the debtor by
marching him up the Tarpeian rock and hurling him from there to death.
The Greek penal system also provided death sentence for many offences. The
offenders were stripped, tarred and feathered to death publicly. Execution of death
penalty in public places was favoured because of its deterrent effect.
English Law on Death Penalty
The history of crime and punishment in England during the medieval period
reveals that infliction of death penalty was commonly practised for the elimination
of criminals. Henry VIII who reigned in England for over fifty years,449 was
particularly infamous for his brutality towards the condemned prisioners. He used to
boil the offenders alive. His daughter Queen Elizabeth who succeeded him, was far
more stiff in punishing the offenders. The offenders were not put to death at once but
were subjected to slow process of amputation by bits so that they suffer maximum
pain and torture. The condemned offenders were often executed publicly. These
brutal methods of condemning the offenders were, however, abandoned by the end
of eighteenth century when the system of transporting criminals to distant American
Colonies at their option was firmly established.
Dr. Fitzgerald observed that the history of capital punishment in England for the
last two hundred years recorded a continuous decline in the execution of this
sentence.450 During the later half of the eighteenth century as many as two hundred
offences were punishable with death penalty. The obvious reason for the frequency of
execution was the concern of the ruler to eliminate criminals in absence of adequate
police force to detect and prevent crimes. The methods of putting offenders to death
were extremely cruel, brutal and torturous.
As the time passed, the severity of capital punishment was mitigated mainly in
two ways : Firstly, this sentence could be avoided by claiming the 'benefit of clergy’
which meant exemption from death sentence to those male offenders who could read
and were eligible for holy Order.451 Secondly, the prisoners who were awarded death
sentence could be pardoned if they agreed to be transported to American Colonies.
During later half of the eighteenth century, condemned felons could be transported
for seven years in lieu of capital sentence. In course of time, death punishment for
448 "homo homini res sacra".

449 Henry VIII ruled over England from 1491 to 1541 AD.
450 Fitzgerald, P.J. : Criminal Law and Punishment (1962 Ed.) p, 216.
451 In subsequent years, this benefit was extended to women also. It was finally abolished
in 1927. __

felony was abolished,452 and in 1853, the system of transporting criminals also came
to an end and a new punishment of penal servitude was introduced.
Commenting on the frequency of executions during the eighteenth century
Donald Taft observed that during no period in the history of western civilization were
more frantic legislative efforts made to stem crime by infliction of capital punishment
as in that century.453 In his opinion, the growing importance of this punishment was
owing to the agrarian and industrial changes in the English society resulting into
multiplicity of crimes which had to be suppressed by all means. Supporting this view
Radzinowicz observed that more than 190 crimes were punishable with death during
the reign of George III in 1810.
However, with the advance of nineteenth century, the public opinion
disfavoured the use of capital punishment for offences other than the heinous crimes.
Bentham and Bright, the two eminent English law reformers opposed frequent use of
capital punishment. Sir Samuel Romilly also advocated a view that the use of capital
punishment should be confined only to the cases of intentional and wilful murder.
The irrevocable and irreversible nature or death penalty gave rise to a number
of complications which invited public attention towards the need for abolition of
death sentence. Consequently, the British Royal Commission on Capital Punishment
was appointed in 1949 to examine the problem. As a result of the findings of this
Commission, death sentence was suspended in England and Wales for five years
from 1965 and was finally abolished by the end of 1969. However, the constant rise
in the incidence of crime in recent decades has necessitated Britain to re-assess its
penal policy regarding death penalty. The two latest decisions454 of the Privy Council
emphatically stressed that the award of death sentence is not violative of human
rights or fundamental rights.
Ceylon
The penal law of Ceylon abolished capital punishment in 1956 but it had to be
reintroduced as a measure of social defence consequent to gruesome murder of Late
Prime Minister Mr. Bhandamaike.
The Italian view
Italian criminologists, however, expressed divergent views about the utility of
capital punishment. Lombroso supported application of capital punishment for
habituals and incorrigibles. In his view, death sentence served as an effective
deterrent for such offenders. Garofalo opposed capital punishment on grounds of
morality while Beccaria denounced it because it had a demoralising effect on society.
He believed that life of an individual is too precious to be ended by the award of
death sentence.
France
France has abolished capital punishment recently after a considerable debate and
discussion among penologist and law reformers. The general feeling is that retention
of death sentence is not in keeping with the modem reformative trend of penology.
Death Sentence in U.S.A.
Available literature on capital punishment in United States testifies that in
modem times the sentence of death is being sparingly used in that country. This,
however, does not mean that capital punishment is altogether abolished in United
States. The retention of death penalty is still considered to be morally and legally just
though it may be rarely carried into practice. American penologists justify the
452 Death as a punishment for felony was abolished in 1827.

453 Taft & England : Criminology (4th Ed.) p. 297.
454 Eston Baker v. Queen, 1975 PC 774 and Michael de Fraeities v. George Ramoutar Benny, 1976 PC 239.
retention of capital punishment for two obvious reasons. Firstly, from the point of
view of protection of society, death penalty is needed as a threat or warning to deter
the potential murderers. Secondly, it also accomplishes the retributive object of
punishment inasmuch as a person who kills another has perhaps forfeited his claim
for life. It is, however, generally argued that the risk of being executed in fact serves
no deterrent purpose because the murderer often plans out his crime in such a way
that the chances of his detection are rare and he is almost sure of his escape without
being punished. The retention of death penalty for capital murderers is justified on
the ground that if not executed, they will remain menace and potential danger to
society.455
Recent trend in America is to restrict capital punishment only to the offence of
murder and rape.456 Another noticeable change in trend is to make the process of
execution private, painless and quick as against the old methods of public execution
which were brutal, painful and time consuming. At present, the common modes of
inflicting death penalty in United States are electrocution, hanging, asphyxiation with
lethal gas and shooting. Several American States have abolished death punishment
with beneficial results. Mr. Justice Brennan and Mr. Justice Marshall of the U.S.
Supreme Court in a landmark decision Furman v. The State of Georgia,457 observed that
death penalty should be outlawed on the ground that it was an anachronism
degrading to human dignity and unnecessary in modem life. But most of the Judges
did not agree with the view that the Eighth Amendment of the American Constitution
which prohibits capital punishment for all crimes and under all circumstances, is a
good law. Some of the American decisions458 suggest that the courts are convinced
that death penally per se is not violative of the Constitution. However, in some parts
of the United States death penalty has been retained only for the murder of a prison
officer by a life convict.
Global Perspective of Death Sentence
An international survey carried out in 1962 by the United Nations, however,
confirmed that neither suspension nor abolition of death penalty had any immediate
effect in increasing the incidence of crimes punishable with sentence of death. The
countries which had abolished capital punishment, notably, Germany, Austria,
Scandinavia, Netherlands, Denmark and some Latin American States reported no ill-
effects of abolition.
It is significant to note that with the abandonment of the torturous and
barbarous methods of inflicting death penalty, the meaning of the term 'capital
punishment' now extends only to death sentence for murder or homicides.
Particularly, in western countries rape is no longer serious crime for two main
reasons. Firstly, with general laxity in morality, the gravity of this offence is fast
declining. In the second place, scientists have established rape as a mere passive
surrender by the victim because in their opinion it is practically impossible to commit
rape unless the victim is made unconscious. Likewise, treason being exclusively a
war-time offence, it is futile to enlist it as a peace-time offence and to provide death
penalty for it.
In the modern reformative era, the retributive principle of 'tit for tat' does not
serve any useful purpose. Retribution can only do more harm than good to the
criminals and can never be an effective measure of suppressing crime. Retaliation and
455 In USA, 37 convicts were sentenced to death in 2008 whereas this number rose to 52 in 2009, of
which 51 were administered lethal injections to die a painless death. The State of Texas recorded
the highest number of death sentences i.e. 24.
456 Australian law also provides death penalty for the offence of murder and rape.
457 (1972) 408 US 238.
458 Gregg v. George, (1976) 428 US 153 ; Profit v. Flourida, (1976) 428 US 243; Jurek v.
Taxas, (1976) 428 US 262.

retribution, apart from being outdated are also against the accepted norms of modern
criminal justice. Beccaria was perhaps the first criminologist who raised a crusade
against capital punishment in 1764. He strongly protested against the use of cruel and
barbarous modes of punishing the offenders and emphasised the need of
individualised treatment. He expressed a view that death as a sentence symbolises
man's cruelty and insignificance of human life. In course of time, mens rea became the
guiding principle for determining the guilt and punishment of the offender though it
is true that in certain cases it is difficult to determine mens rea of the offender.459
Yet another reason for discarding retribution as a principle of criminal justice-is
to be found in the fact that putting a person to death virtually amounts to killing him
deliberately. That apart, experience has shown that more than eighty per cent of the
persons committing murder are not really murderers but are persons who have fallen
a prey to this heinous crime due to circumstances such as passion, provocation,
jealousy, sexual impulsiveness, poverty or intoxication. Obviously, death sentence is
hardly an appropriate punishment for such offenders. Prof. Scot has expressed doubts
about the adequacy of capital punishment as it involves the risk of innocent person
being sent to guillotine. In a number of cases bona fide errors of judgment as to guilt
of the accused are known to have occurred. If an innocent person is hanged due to
miscarriage of justice, his life is lost for ever and the loss is obviously irredeemable.
Perhaps it is for this reason that slightest doubt about The guilt of the accused entitles
him for an acquittal on the plea of 'benefit of doubt460 under the criminal law of most
459 Dr. Vimla Devi v. Delhi Administration, AIR 1963 SC 1572.

460Daiya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1730.
countries.
The abolitionists strongly argue that since death penalty is irrevocable, it should
not be awarded. But the elaborate safeguards provided in the procedural law clearly
indicate that though the sentence of death is irrevocable, it is awarded only after a
thorough scrutiny at every stage of the case and therefore, chances of human error or
judgment are not only minimised but reduced to almost nil. Slightest doubt about the
guilt of the accused who is to be sentenced to death is sufficient to entail him benefit
of doubt. As such, abolition of death penalty on the ground of irrevocability hardly
seems to be justified.
Safeguards against possibility of Miscarriage of justice due to irrevocability of
Capital Punishment
The safeguards provided under the law to eliminate any possibility of erroneous
judgment regarding award of death sentence which may briefly be stated as follows
:—
Firstly, death penalty is awarded very sparingly only in cases of murder
and offences against the State;
Secondly, it is now an exceptional punishment requiring the sentencing
Judge to record in writing why he considers alternative punishment of life-
imprisonment as inadequate in the case before him.461
Thirdly, the conferment of right of pre-sentence hearing under section
235(2) to the accused person offers him an opportunity to put-forth his plea for
award of life-imprisonment as an alternative punishment for death sentence;
Fourthly, the cumulative effect of the provisions contained in Sections
354(3) and 235(2) is that sentencing is completely individualised and there is
hardly any scope for error of judgment in sentencing the accused person;
Fifthly, the sentence of death passed by the Court of Session has got to be
sent for confirmation to the concerned High Court under Sections 366-370
Cr.P.C. alongwith entire evidence material so that the High Court may
scrutinise the same. The High Court has also the power to direct further enquiry
or additional evidence to be taken if necessary;
Sixthly, the provision of appeal to the Supreme Court under Section 379
Cr.P.C. and Article 136 of the Constitution; and
Seventhly, President's/Governor's power of pardon or commutation of
sentence under Article 72 or 161 of the Constitution, as the case may be. It is quite
often argued that death penalty "brutalises" human nature and cheapens human life.462
It vitiates the humanitarian sentiments concerning the sacredness of human life.463 It is
for this reason that David Pannick strongly argues that death penalty should be
declared per se unconstitutional being cruel and violative of due process of law.
The arguments for and against death sentence may be summarised as follows
:—
Arguments 'for' death penalty (Retentionist's view)
1. Elimination of murderers by execution is fair retribution and serves the ends
of justice.
2. Punishment must match the gravity of offence and worst crimes should be
severely dealt with for the sake of deterrance and security of the society.
3. Death penalty shows society's reaction to heinous crimes.
4. One who ends somebody's life, forfeits his right to life.
5. Death sentence should be looked as a form of retributive justice insofar as it
461 Section 354(3) Cr.P.C.

462 D. Dressier : Reading in Criminology and Penology (2nd Reprint), p. 486.
463 (1977) Cr LJ 159.

provides satisfaction and peace of mind for many victims of crime and their families
or relatives.
6. It is the most effective way to protect society against condemned offenders.
This is the reason why death penalty has been held to be constitutionally valid.
7. Some authorities believe that death penalty is less cruel than a prolonged life
imprisonment.
8. considered from the economic point of view also it is for less expensive to
execute a convict than to house him/her in a prison institution for life.
9. It prevents over-crowding in prisons and helps in elimination of offenders
who are potential danger to the institution thereby making maintenance of discipline
in prisons easy.
10. It upholds rule of law because it discourages vigilantism or self-help on the
part of victim's family.
Arguments 'against' death sentence (Abolitionist's view)
1. Death penalty is killing and all killings are wrong and therefore, death
sentence is also wrong.
2. An execution arising out of miscarriage of justice is irreversible and
therefore, it may result in great injustice to the person wrongly sentenced to death.
3. It is a lethal vengeance which brutalises the society.
4. Death penalty is unjust and often discriminatory against poor who cannot
afford to defend themselves properly against a homicide charge.
5. It is a misconception to think that death penalty has a deterrent effect
because hired murderers do take chance with the criminal justice system whatever be
the consequences.
6. Death penalty is violative of human rights, particularly Articles 3 and 5 of
the UN Declaration of Human Rights.
7. Quite a large number of murders are crimes of emotion or impulsiveness.
Therefore, death penalty in such cases does not serve the ends of justice.
8. It denies the possibility of reformation and rehabilitation of the offender.
A perusal of arguments for and against the retention of capital punishment
in a penal system makes it abundantly clear that atleast its retention in the statute
book would better serve the ends of justice, though in practice it may be used
sparingly. This approach to capital punishment is well reflected in the judicial
pronouncements handed down by the Supreme Court ever since the historic Bachan
Singh's case, where the Court laid down the "rarest of rare case" principle.464
Capital punishment in India

The ancient law of crimes in India provided death sentence for quite a good
number of offences. The Indian epics, viz., the Mahabharata and the Ramayana also
contain references about the offender being punished with vadhadand which meant
amputation by bits. Fourteen such modes of amputating the criminals to death are
known to have existed which included chaining and imprisonment of the offender.
Justifying the retention of death penalty, King Dyumatsena observed : "if the
offenders were leniently let off, crimes were bound to multiply". He pleaded that true
ahimsa lay in the execution of unworthy persons and therefore, execution of
unwanted criminals was perfectly justified.465 His son Satyaketu, however, protested
against the mass scale execution and warned his father that destruction of human life
can never be justified on any ground. But Dyumatsena. ignored the advice of his son
464 Bachan Singh v. State of Punjab, AIR 1980 SC 898. Earlier, in Jagmohan Singh v. State of U.P.,
AIR 1973 SC 947 also the Supreme Court held that death penalty per se is not violative of Art. 19.
465 Mahabharat-Shantiparva chapter CCLXVII Verses 4-13.
and argued that distinction between virtue and vice must not disappear and vicious
elements must be eliminated from society.466
The great ancient law-giver Manu also placed the element of fear as an essential
attribute of judicial phenomenon. According to him, in order to refrain people from
sinful murders, death penalty was necessary and in absence of this mode of
punishment, state of anarchy will prevail and people would devour each other as the
fish do in water, the stronger eating up the weaker.
During the medieval period of Moghuls rule in India, the sentence of death
revived in its crudest form. At times, the offender was made to dress in the tight robe
prepared out. of freshly slain buffulo skin and thrown in the scorching sun. The
shrinking of the raw-hide eventually caused death of the offender in agony, pain and
suffering. Another mode of inflicting death penalty was by nailing the body of the
offender on walls. These modes of putting an offender to death were abolished under
the British system of criminal justice administration during early decades of
nineteenth century when death by hanging remained the only legalised mode of
inflicting death sentence.
Retention of Capital Punishment—How far justified
The history of human civilization reveals that during no period of time death
penalty has been discarded as a mode of punishment. This finds support in the
observation made by Sir Henry Maine who stated, "Roman Republic did not abolish
death sentence though its non-use was primarily directed by the practice of self-
banishment or exile and the procedure of quarrantine.* Nor does the ancient Indian
civilization know of abolition of death sentence although its disuse at some point of
time in history has been effected because "the people were most truthful, soft-hearted
and benevolent and to them vocal remonstrance sufficed. But in the event of failure
of these measures, corporal punishment and death sentence were invoked to protect
the society from violent criminals."467
Penologists in India have reacted to capital punishment differently. Some of
them have supported the retention of this sentence while others have advocated its
abolition on humanitarian grounds. The retentionists support capital punishment on
the ground that it has a great deterrent value and commands obedience for law in
general public. Those who support capital punishment feel that death of the killer is a
requirement of justice. They believe that death of victim must be balanced by the
death of the guilty party, otherwise, the victim will not be avenged and the anguish
and passions aroused by the crime in society will not be allayed.
The abolitionists, on the other hand, argue that enormous increase in homicide
crime-rate reflects upon the futility of death sentence. Another argument generally
put forth by abolitionists is that hardened criminals commit most cold-blooded
murders in a masterly manner. They proceed with their criminal activity in such a
way that even if they are caught, they are sure to escape punishment due to one or the
other procedural flaw in the existing criminal law.
Reacting sharply against the abolitionists' view, the Law Commission of India
in its thirty-fifth Report observed :
"Having regard to the conditions of India, to the variety of the social
upbringing of its inhabitants, to the disparity of the level of morality
and education in the country, to the vastness of its area, to the
diversity of its population and to the paramount need for maintaining
law and order in the country at the present juncture, India cannot risk
the abolition of capital punishment. Arguments, which would be
466 Ibid.
467 Kane, P.V. : History of Dharamskastra, p. 399.

valid in respect of one area of the world may not hold good in
respect of another area in this context. Similarly, even if abolition in
some parts of India may not make a material difference, it may be
fraught with serious consequences in other parts. On a consideration
of all the issues involved the Commission is of the opinion that
capital punishment should be retained in the present state of the
country."468
Supporting the aforesaid view of the Law Commission, the Supreme Court in
Bachan Singh v. State of Punjab,469 inter alia observed :
"Notwithstanding the views of the abolitionist to the contrary, a very
large segment of people, the world over, including sociologists,
legislators, jurists, Judges and administrators still firmly believe in
the worth and necessity of capital punishment for the protection of
society. The Parliament has repeatedly in last three decades, rejected
all attempts to abolish death penalty.
Death penalty is still recognised as legal sanction for murder or
some types of murder in most of the civilised countries in the world
.............. It is not possible to hold that the provision of death
penalty as an alternative punishment for murder in Section 302
of IPC is unreasonable and not in public interest."
Statistics on homicide in various countries suggest that the incidence of this
crime has not fallen despite increased risk of execution. This in other words, means
that the deterrent effect of capital punishment is vanishing in modem times. It has
been vehemently argued that deterrence doesn't work against the majority of offences
which are crimes of passion.
The foregoing analysis clearly indicates that neither retention nor abolition of
death sentence can be justified in absolute terms. The desirability of this punishment,
by and large, depends on the nature of the crime and the circumstances associated
therewith. The following generalisations may, however, serve a useful purpose in
deciding the desirability of capital punishment.
1. The retention of death penalty seems desirable in cases of hardened
murderers who are incorrigibles and commit cold blooded murders in a
calculated manner.
2. Particularly, in agricultural countries like India, the real problem of death
penalty arises in case of murders committed during agrarian riots and
disputes relating to possession or ownership of land-property. In such
cases, the offenders are well aware of the consequences of their act but
they fall a prey to criminality due to passion, excitement or anger for the
victim whom they want to put out of their way once for all. Thus these
persons, though aware of the consequences, in fact do not intend those
consequences to follow, hence they cannot be categorised as professional
killers and death penalty can hardly serve any useful purpose in such
cases.
3. Experience has shown that quite a large number of murders and homicides
which occur in this country are due to permeance of racial, ethnical, and
religio-political cultures. The offender often falls a prey to his
surroundings and in a fit of passion commits homicide without thinking
about its gravity and consequences. Such cases are more common in the
468 35th Report of Law Commission of India (Government of India, 1967) p. 354.
469 AIR 1980 SC 898.
# $ w- f. #- f
Indian society where sex taboos are too strict and the marital relationships
are likely to be disturbed on slightest suspicion or provocation.470
4. Dr. Sethna carried out an intensive study of cases tried at the Criminal
Sessions of the Bombay High Court and concluded that out of 507 cases
of homicides only 26.28 per cent were premiditated murders while
remaining 73.72 per cent were cases of unpremeditated murder.471 Thus
most of the homicides are due to ill-will, emotion, irresistible temper or
manic excitement and capital punishment serves no deterrent purpose in
such cases.
5. The reason generally advanced for retaining the death penalty is protection
of society. It means that the criminal is exterminated and got rid of once
for all. But it must be remembered that it is not by
the fear of death but by generating in the community a sentiment of
horror against killing, that we can hope to deter offenders from
committing that act.472
The above generalisations suggest that classification of different types of
homicides can be made on the basis of social environment and personality of the
offender. Therefore, the efficacy of death penalty in such cases should be judged in
the light of the surrounding conditions. Considered from this standpoint, the habitual
offenders and sex psychopaths are abnormal persons who develop a kind of menia for
their crime without bothering about its gravity or evil effects. There is yet another
category of criminals who take pleasure in killing human life without any apparent
reason. They commit murder one after another only for the sake of fun.473 When
interrogated, these men-killers have boldly confessed that they commit homicides
because they derive some kind of pleasure in watching their victim dying in pain and
torture. Needless to say that death sentence is perhaps the only appropriate
punishment for such beastly offenders.
Retention preferred to Abolition
The current wave of reformation in the field of criminal justice system has
inspired Parliamentarians in India to launch a crusade against capital punishment.
They have been constantly struggling to repeal the provisions relating to death
sentence from the Penal Code for the past several years. The first proposal on this
issue was tabled in Lok Sabha in 1949 but it was subsequently withdrawn at the
instance of the then Home Minister Sardar Vallabhbhai Patel who characterised it as
the most unopportune proposal. The matter came up for debate again in Rajya Sabha
in 1958 but it again met the same fate. The subject was, however, accepted for
discussion in Rajya Sabha in 1962 but the general opinion of the House favoured
retention of death penalty realising that time had not yet come when its repeal from
the statute book could be justified. Consequently, the proposal was dropped. The
retentionists in the House opposed abolition of death sentence on the ground that its
retention in the Statute Book acted as an effective deterrent for hardened and habitual
murderers and dangerous criminals whose elimination from the society was
inevitable. The members also pleaded that the Government was already lenient in
commuting death sentence to that of life imprisonment wherever it was possible.
The question of abolition of death sentence was considered at length in a
470 Rex v. Govinda, ILR 1876 Bombay ; see also K. M. Nanavati v. State of Bombay, AIR 1961 SC
497 ; Bishun Dev Shaw v. State of West Bengal, AIR 1979 SC 702 ; Madan Mohan Punchhi & Mrs.
Sujata v. Manohar, AIR 1997 SC 265.
471 Sethna, M.J. : Society and the Criminal (1964) p. 256.
472 Sir Walter Moberley : The Ethics of Punishment, p. 102.
473 Raghavan's case of Bombay (1971) is an illustration on the point.

seminar474 on "Capital Punishment in India" which was largely attended by number of
eminent jurists, judges, academic lawyers, legislators etc. The consensus was in
favour of retention of capital punishment in view of the deteriorating law and order
situation in the country. Those who advocated abolition of death penalty, however,
suggested that it shall be a befitting tribute to the memory of late Mahatma Gandhi if
death penalty is abolished in India at the occasion of Gandhi Centenary celebrations
in that year. But the retentionists argued that the cause of non-violence is equally
served if the causes of explicit violence regardless of ideals involved are visited with
implicit violence of capital punishment and stressed on its application in such a
manner that its harshness is mitigated but efficiency retained.
The Report of the Convention of International Congress of Criminal Law475
which was held in New Delhi on 8, 9 and 10th February 1982 concluded that the
general consensus was clearly in favour of retention of death penalty though its use
may to be restricted to "rarest of rare cases". Despite strong plea for abolition by
Justice V. R. Krishna Iyer, the former Judge of the Supreme Court of India, the
convention justified retention of capital punishment, though to be used sparingly.476
Inaugurating the Congress, Mr. M. Hidayatullah, the then Vice-President of India and
former Chief Justice of the Supreme Court of India, observed that the doctrine of
"rarest of rare case" evolved in the Indian jurisprudence for the use of death penalty
is capable of discounting the possible errors and abuse of this sanction and therefore,
a dispassionate approach to this problem in the context of the mounting crime was
most necessary.
This mid-way approach seems to be most appropriate particularly in the context
of modern Indian society where the machinery of police as well as the magistracy is
hardly adequate to tackle the problem of crime and criminals effectively. The object
of punishment should be achieved by extending necessary safeguards to life and
property of persons but at the same time by limiting their liberty so as to eliminate
crime.
Law Commission's Report on Capital Punishment
In response to the resolution moved in the Parliament in 1962 on the abolition
of capital punishment, the Government of India referred the question to the Law
Commission. The Commission decided to take up this subject separately for the
revision of the general criminal law in view of its importance. The Commission
presented its report to the Lok Sabha on November 18, 1971, in which it inter alia
observed :
"even after all the arguments in support of abolition of capital
punishment are taken into account, there does not remain a residium
of cases where it is absolutely impossible to enlist any sympathy on
the side of the criminal.477 The Commission further expressed a view
that 'retribution' involved in capital punishment does not connote the
primitive concept of 'eye for an eye' but it is an expression of public
indignation at a shocking crime, which can better be described as
474 The Seminar was held in Delhi in October, 1969.

475 The Convention was sponsored by International Law Association (Association
International de Droit Penal).
476 Besides the present author, Prof. D. C. Pande, Mr. M. Adekunie O.voada (Nigeria) ; Mr.
Darnel Latifi, Dr. Lurra Nezhinskaya (USSR) Prof. M. P. Singh (BHU) ; Prof. S. Venugopal Rao
and others in their papers pleaded retention of capital punishment as a measure of penological
expediency. Prof. (Dr.) Jurgen Meyer of West Germany, however, favoured the abolition and
recounted experiences of his country which abolished capital punishment in 1949. East Germany
also abolished capital punishment for all crimes in 1987. However, there has been reunification of
East and West Germany in 1990.
477 42nd and 48th Report of the Law Commission of) India (1971-72).
'reprobation'."
Therefore, the Commission did not recommend any material change in the
offences which are made punishable with death under the Indian Penal Code.
As regards the question of exempting certain categories of persons from death
sentence, the Law Commission in its 42nd Report published in June 1971 suggested
that:
(1) Children below 18 years of age (at the time of commission of the
crime) should not be sentenced to death.
(2) It is not necessary to exempt women generally from the death
penalty.
(3) It is unnecessary to insert a statutory provision relating to
"diminished responsibility" in the statute book.
(4) An attempt to commit suicide should cease to be an offence in India.
The present law in this regard is "harsh and unjustifiable and it
should be replaced".478
The Law Commission strongly felt that capital punishment acts as an effective,
deterrent "which is the most important object and even if all objects were to be kept
aside, this object would by itself furnish a rational basis for its retention". In its
concluding remarks, the Commission observed that having regard to the peculiar
conditions prevalent in India and the paramount need for maintaining law and order
in this country, we cannot risk the experiment of abolition. This is perhaps the most
appropriate approach to the problem of capital punishment so far Indian criminal
justice system is concerned.
Suicide as an offence
In the context of suicide as an offence, it would be worthwhile to refer to the
decision of Bombay High Court in Maruti Shripati Dubai v. State of Maharashtra.479 In
this case a police constable of Bombay City Police Force who was suffering from
mental illness and schizophrenia due to a road accident in 1981, attempted to commit
suicide outside the office of the Municipal Commissioner Bombay, at 10 a.m., on
27th April, 1985 by pouring kerosene on himself and trying to light his clothes. He
was arrested and proceeded against under Section 309 of the Indian Penal Code. The
learned JJ. Sawant and Kolse Patil of the Bombay High Court ruled that right to live as
recognised by Art. 21 of the Constitution includes also a right not to live or not to be
forced to live which in positive terms would mean right to die or end one's life.
Section 309, I.P.C. was therefore, ultra vires and violative of Articles 14 and 21 of the
Constitution. The Court placed reliance on the Supreme Court decision in Olga Tellis
& others v. Bombay Minicipal Corporation480 popularly known as Pavement Dweller's case
wherein it was held that right to life also includes right to livelihood. The Bombay
High Court, however, clarified that mercy-killing or euthanasia is not suicide and
hence would not be covered under Section 309 IPC. The reason being that suicide by
very nature is an act of terminating one's own
life by one's own act without the aid and assistance of any other human agency.
The Supreme Court in P. Rathinam Nagbhusan Patnaik v. Union of India481
distinguished suicide from euthanasia and observed that "the legal and other
478In Rathinam Nagbhusan Patnaik v. Union of India, AIR 1994 SC 1844, the Supreme Court had
ruled that attempt to commit suicide (i.e. Sec 309 IPC) deserves to be effaced from IPC being
violative of Art. 21 of the Constitution. But this decision was subsequently over-ruled by the
Supreme Court in Gy an Kaur v. State of Punjab, AIR 1996 SC 946 and consequently Sec. 309,
IPC is valid.
479 1987 Cr. LJ 743.
480AIR 1986 SC 180.
481 AIR 1994 SC 1844.

questions relatable to euthanasia are in many ways different from those raised in
suicide". Therefore, justification for allowing persons to commit suicide cannot be
played down or cut down because of any encourgement to persons pleading for
legislation of mercy killing. The Court further clarified that self-killing is
conceptually different from abetting others to kill themselves.
The Supreme Court, in this case482 pointed out that "the causes of suicide are
many and varying inasmuch as some owe their origin to sentiments of exasperation,
frustration and resolution, some are the result of feeling of burden, torture and
sadness, some are caused by loss of employment, reverse of fortune, misery due to
illness, family trouble and thwarted love. Sometimes killing is in opposition to
society and sometimes in opposition to particular persons. This happens when the
person committing suicide nurses a feeling of unjust treatment, mal-treatment or
cruelty. Therefore, what is needed to take care of suicide-prone persons, are soft
words and wise counselling of a psychiatrist and not stony dealing by a jailor
followed by harsh treatment meted out by a heartless prosecutor." The Court
observed that one of the objects of punishment is protection of society from the
depradation of dangerous persons, there is no question of protection of society from
depradation of dangerous persons in case of suicide. Considered from this point of
view, suicide is not an offence. Therefore, the arguments that by quashing Section
309 I.P.C. which makes attempt to suicide a penal offence, Section 306, I.P.C. would
also not survive, is not tenable.
The Supreme Court's ruling in P. Rathinam's case has, however, been overruled
by a subsequent case, i.e., Smt. Gyan Kaur v. State of Punjab.483 In this case, appellants
Gyan Kaur and her husband Harbans Singh were convicted by trial Court under
Section 306, I.P.C. and sentenced to 6 years' R.I. and fine of Rs. 2,000/- or in default
R.I. for 9 months for abeting commission of suicide by Kulwant Kaur. The
conviction of both was maintained by the High Court except that the sentence of
Gyan Kaur was reduced to 3 years' R.I. This appeal was against the conviction and
sentence of appellants under Section 306, I.P.C. The Supreme Court held that right to
life under Article 21 does not include right to die 'because extinction of life' is not
included in 'protection of life'. Therefore, penalising for an attempt to commit suicide
under Section 309, I.P.C. is not violative of Article 21 and is not unconstitutional,
and therefore, the provision contained in Section 306, I.P.C is also not
unconstitutional, and it is perfectly valid. Hence the appeal was disallowed.
Should Euthanasia be legalised
The problem of euthanasia is closely related to suicide. "Euthanasia" literally
means mercy killing. The question posed before the criminologists and sociologists
is whether a person who is suffering from an incurable illness or disease be permitted
to die prematurely, i.e. before his natural death. A person kept alive with the help of
respirator due'to total failure of respiratory system and non-functioning of brain has
no chances of survival sooner the respirator is disconnected and the doctor concerned
also knows about this, but he cannot withdraw the treatment even if insisted upon by
the near relatives of the ailing person as this would amount to murder or abetment of
murder.
Again, where a person who is suffering from unbearable agony and pain due to
incurable cancer or AIDS which have reached the last stage or creeping paralysis for
a number of years may no longer wish to survive and express genuine desire to die,
but the law would not permit him mercy-death and he would be guilty of the offence
482 Ibid.
483 AIR 1996 SC 946.
of suicide, if his attempt to die results in a failure.

Euthanasia may be passive or active. If life sustaining machine (respirator) is
disconnected or medical treatment is stopped to a patient suffering from an incurable
ailment, he is sure to die and this will be a case of passive euthanasia. On the other
hand, if a patient who desires to die is given a lethal injection or a lethal drug and as a
consequence of which he dies, it will be a case of active euthanasia. Thus, it would be
seen that one is the act of omission while the other is an act of commission.1
However, the effect of both is the same and therefore, both were punishable under the
criminal law until the Supreme Court's recent decision in Arun Shanbaug's petition2
handed down on March 7, 2011 allowing passive euthanasia as valid and lawful but
not the active euthanasia, which would continue to be an offence under Section 309,
IPC.
Indian Position
In India, euthanasia is an offence covered under Section 309 of IPC i.e., attempt
to suicide. If it is caused by some other person, he will be guilty of the offence of
murder or culpable homicide not amounting to murder if the consent of the person
seeking euthanasia is obtained. In case euthanasia is decriminalised and made
permissible under the law, a sixth exception to Section 300 of I.P.C. will have to be
added stating that culpable homicide shall not be a crime if it is a case of euthanasia
granted to a person under the rules framed by the State.
It must be stated that even the protagonists who are in favour of legalising
euthanasia have expressed a view that it should be permitted in extreme exceptional
cases where there is no chance of survival of a person or where his pain and suffering
are incurable. They have suggested constitution of an expert committee consisting of
medical experts, social workers headed by District Judge to consider whether the case
before them is a fit case to be granted permission for euthanasia. This, in their view,
will eliminate the possibility of abuse of legalisation of euthanasia.
However, the issue has been decided by the Supreme Court in its landmark
decision handed down on March 7, 2011. Disposing of the petition filed by one Pinky
Virani on behalf of Arum shanbaug, a K.E.M. Hospital (Mumbai) nurse seeking
permission for mercy killing as she was sexually assaulted by a ward boy of that
hospital 37 years ago and was permanently in
1. Dr. N.G. Kulkarni "Legalising Euthanasia Published in AIR 2006 (Journal Section) 17.
2. The petitioner a hospital nurse in this case was lying in a permanent vegetative state (PVS) for
the last 37 years in continuous State of unconsciousness due to her rape by a ward boy of the
same hospital, i.e. K.M. Hospital, Mumbai.
a vegetative state (PVS) throughout this period. Court has finally settled the debate
regarding the validity or otherwise of euthanasia once for all Dismissing the plea for
subjecting to mercy killing of the nurse Aruna, the two Judge bench of the court
(Justice Katju and Gyan Sudha Mishra) in its 141-page ruling allowed "passive
euthanasia" for permanently vegetative patients or withdrawing life support but
rejected outright active euthanasia of ending life through administration of lethal
substances. The court observed, "a person attempts suicide in a depression and hence
needs help, rather than punishment. Justice Markandeya Katju, held that "though
there is no statutory provision for withdrawing life support system from a person in a
permanently vegetative state, passive euthanasia could be permissible in certain
cases."
The Apex Court laid down a set of tough guidelines under which passive
euthanasia could be legalised through a High Court monitored mechanism. The
Court asserted that these guidelines could now become the law of the land until the
parliament enacts a suitable legislation to deal with the issue. The Bench also
directed the Parliament to delete Section 309 which penalises attempt to commit
suicide as an offence, as it has become 'anachronistic' though it is presently

constitutionally valid.
Finally, disallowing mercy killing petition of Aruna Shanbaug, the Supreme
Court held that it could be permitted if the Mumbai King Edward Hospital moves a
petition to the High Court of Bombay on her behalf and the High Court accepts it.
Thus, distinguishing between passive and active euthanasia, the court left it for
the High Courts to decide after hearing the family member's plea and the medical
panel's opinion in case ef terminally ill patients who have no hope of cure and who
would welcome termination of their sufferings.484
It may be noted that Netherlands was the first country in the world to legalise
euthanasia (mercy killing) after the controversial law on euthanasia came into force
on April, 2001. The legislation allows patients experiencing unbearable suffering to
request for euthanasia and doctors who carry out such mercy killing to be free from
the threat of prosecution provided they have followed strict procedures. However,
the U.N. Human Rights Committee is not convinced that the Netherland system can
prevent abuses such as pressure being exerted on patients. One of the Dutch doctor's
commenting on legalisation of mercy killing said, "for many terminally ill people,
the fact that they can choose to die is an immense consolation."
In Australia, the Northern Territory had legalised euthanasia way back in 1996
but the legislation had to be overturned nine months later due to bitter opposition.
In U.S.A. euthanasia is decriminalised as is evident from the case of Mckay v.
Bergstcdt, wherein a patient had filed a petition in the District Court of the Nevada
State permitting disconnection of his respirator as he was totally fed up with life and
wanted to survive no longer. The District Court granted him permission against
which the State filed an appeal in the Supreme Court of Nevada. The Court affirmed
the majority decision of the District Court and held that every person has the
constitutional and common right to discontinue
484 The Supreme Court's decision in Aruna Shanbaug s petition for mercy willing
decided on 07th March 201. It is need a landmark decision.

unwanted medical treatment and therefore, withdrawal of respirator from the
patient would not amount to suicide. Thus the Court recognised the act of mercy
killing or euthanasia in extreme cases of unwanted survival.
Americans are engaged in an earnest debate on morality, legality and
practicability of physician-assisted suicide (PAS). Although the Oregon Death with
Dignity Act was passed in 1994 but it had to be withdrawn in 1997 due to legal
conflicts. The other States also tried to bring such a law but have not succeeded due
to public opposition. The main objection to physician-assisted suicide (PAS) is that it
violates the hippocratic oath "do no harm". Secondly, it will carry an impression
among the public mind that doctors will become part-time executioners. But those
who favour euthanasia argue that helping a terminally ill patient to die is compatible
with love, kindness and compassion. It will benefit the patient and not harm him. For
example, if a person donates his kidney to his sick brother, no one would accuse the
surgeon of having harmed the donor by removing his vital organ. In fact, removal of
kidney would give greater satisfaction to the donor than the physical harm caused to
him. Therefore, it is fallacious to think that if a doctor helps a patient to end his life,
it infringes his oath 'do no harm'. Oath as such has lost all its credence in the present
time.
Thus it would be seen that the global debate whether euthanasia should be
legalised or not, has evoked great concern among law experts and social scientists.
The protagonists who are in favour of legalisation of euthanasia argue that it will
'enable dignified exit from the misery and misfortune of the deadly diseases'.
According to them, it would be noble act to get salvation from the slow and painful
death. In support of their contention, they cite Gandhiji who preferred a cow
suffering from some deadly and incurable disease to be killed rather than allowed to
be left suffering. There are instances when life ceases to have any meaning for
patients awaiting death who reach a stage where life becomes worse than the death.
For this reason, euthanasia should be legalised for the sake of humanity. The recent
judgment of the Supreme Court of India in Aruna Shanbaug's case485 is indeed a
welcome step in the right direction.
Those who are against legalisation of euthanasia contend that it will mean
"legalisation of murder" hence criminals would abuse or misuse this and the police
and the law would be of no relevance then. According to these critics, "merciless
living is better than merciful killing”. They argue that when you cannot give life to
someone, you have no right to take away his life. Moreover, the serious dreaded
diseases such as T.B. Small pox, Cancer and even Acquired Immune Deficiency
Syndrome (AIDS), which were potential causes for euthanasia have no longer
remained incurable therefore, there is no need to legalise euthanasia.
Offences punishable with death sentence under IPC.
It would be pertinent to refer to the relevant provisions of the Indian Penal
Code which provide for death sentence for certain specified offences. These offences
are :
1. Waging war against the Government.486
2. Abetment of mutiny.1
3. Giving or fabricating false evidence leading to procure one's conviction
for capital offence.2
4. Murder.3
5. Abetment of suicide by child or insane person.4
6. Attempt to murder by a life convict, if hurt is caused;5
485 Mercy killing petition disposed by the Supreme Court on March 7, 2011.
486 Section 121 IPC.

Dacoity with murder.6
7.
8. Kidnapping for ransom etc.7
Until 1983, death sentence was mandatory only in one case namely, for murder
committed by a person while he is already undergoing a sentence for life
imprisonment.8 For other offences, the Penal Code did not make it obligatory for the
courts to award death penalty and they were free to punish the offender with an
alternative sentence. But the decision of the Supreme Court delivered on 7th April,
1983 disposing of writ petition filed by Mithu and others9 challenging the constitutional
validity of Section 303 of IPC on the ground that it violated Articles 14 and 21 of the
Constitution, the five Judges Constitution Bench presided over by Chief Justice Y. V.
Chandrachud (as he was then) observed that Section 303, I.P.C. is unconstitutional and
there shall be no mandatory sentence of death for the offence of murder by lifer. In
other words, hereinafter all murder cases would fall under Section 302 which
provides punishment for murder.
Delivering the judgment on behalf of JJ. Murtaza Fazal Ali, V. D. Tultzapurkar,
Varadarajan and himself (Mr. Justice Chinnappa Reddy delivered a separate but
concurring judgment), Justice Chandrechud (CJ) ruled that Section 303, IPC violates
the guarantee of equality contained in Article 14 as also the right conferred by Article
21 of the Constitution.
The Apex Court in this case i.e., Mithu v. State of Punjab,10 distinguished Section
302 of IPC from Section 303 and pointed out as to how Section 302 is constitutionally
valid whereas Section 303 is not. Section 302 IPC is constitutionally valid for three
main reasons—
(1) Death sentence provided for in Section 302 is an alternative to the
sentence of life imprisonment whereas under Section 303 death sentence
is provided as a mandatory punishment without any alternative sentence.
(2) Where departing from the normal rule of imposing life
imprisonment and holding that death sentence alone is considered to be
the proper punishment, special reasons are to be stated as required under
Section 354 (3) of Cr.P.C. This is possible only in case
1. Section 132.
2. Section 194.
3. Section 302.
4. Section 305.
5. Section 307.
6. Section 396.
7. Sec. 364-A.
8. Section 303 of the Indian Penal Code.
9. Mithu v. State of Punjab, AIR 1983 SC 473.
of Section 302 of IPC but not in the case of Section 303.
(3) Under Section 235(2) of Cr.P.C., the accused is entitled to be heard on
the question of sentence. This applies to Section 302 but has no
application to Section 303 of IPC.
The Supreme Court noted that Indian Penal Code contained in all fifty-one
sections which prescribe life imprisonment for various offences. The basic difference
between Section 302 and the other sections is that under those sections, life
imprisonment is the maximum penalty which can be imposed whereas under Section
302, it is the minimum sentence which has to be imposed. The Court, however, made
it clear that the ruling in Bachan Singh v. State of Punjab1 upholding the constitutional
validity of death sentence could not govern death penalty prescribed in Section 303
of the Indian Penal Code.
1. Referring
AIR 1980 SC 898.
to Section 235(2) of the Code of Criminal Procedure, 1973 in context
of Section 303 I.P.C., the Supreme Court held that if the court itself has no option to
pass any sentence except the sentence of death, it is an idle formality to ask the
accused as to what he has to say on the question of sentence. The Court further
observed, "for us law ceases to have respect and relevance when it compels the
dispensers of justice to deliver blind verdicts by decreeing that no matter what the
circumstances of the crime, the criminal shall be hanged by the neck until he is
dead".
It must be stated that Section 307 (Part II) of I.P.C. provides mandatory capital
punishment for an offence of attempt to murder by a life-convict if hurt is caused,
and deprives judicial discretion in such cases. The object of this provision is two-
fold, namely, to provide protection to the prison personnel ; and to deter the
prisoners.
An analysis of these provisions of the Penal Code further reveals that there are
valid reasons for allowing wider judicial discretion in cases of offences other than
those falling under Section 303. To elaborate this point further, t would be
convenient to classify the aforesaid eight offences into three broad categories,
namely :—
(a) offences against the Government (these include offences under
Section 121 or 132, I.P.C.) ;
(b) offences against lawful justice (Section 194) ; and
(c) offences against persons (Sections 302, 303, 305, 307, 364A and 396,
I.P.C.).
As regards offences against the Government, it is suggested that death penalty
would hardly serve any purpose. For example, if a person believes that there is no
way out to prevent exploitation of the poor at the hands of capitalist government
unless the Government itself is thrown out of power and commits an offence under
Section 121 or 132 of the Indian Penal Code, he does not really want to kill persons.
Therefore, there is no criminal intent or mens rea to commit murders in the instant
case. On the contrary, his act is in fact directed towards a noble cause inasmuch as it
is designed to render some sen ice to the poorer section of the community.
Obviously, death sentence would hardly serve any useful purpose in such cases. In
fact, such persons are generally intellectuals who are prepared to sacrifice their life
for the cause of nation. May be that due
to ideological differences with the party in power, they might wage a war against the
government in power. The activities of Maoists, naxalites etc. are directed towards
this end.
Likewise, in cases of offences against justice or against persons, the criminal
act might have been the result of peculiar mental attitude of the offender and
therefore, capital punishment would not be a fitting punishment in these cases also.
In result, death penalty seems to be justified only in cases of hardened criminals and
incorrigibles who are habituals and commit deliberate murders in a well planned
manner and have scant regard for law, society or other's life.
Indian Law on Death Penalty
The members of the judiciary are sharply divided on the crucial issue of life or
death sentence. Those who support abolition argue that death penalty is degrading
and contrary to the notion of human dignity ; it is irrevocable and an expression of
retributive justice, which has no place in modem penology. The retentionists, on the
other hand, justify capital punishment as a social necessity having a unique deterrent
force.
The shifting trend towards imposition of death sentence for the offence of
minder is clearly discernible from the amendments made in criminal law from time
to time. Prior to 1955, judicial discretion in awarding a lesser penalty instead of
death sentence was circumscribed by requiring the Judge to record his reasons for
awarding a lesser punishment. This in other words, meant that the discretion of the
Judge was open to further judicial review. However, it was subsequently realised
that this restriction on the power of Court was unnecessary because at times it
nullified the achievement of the Judge if his reasons for awarding life imprisonment
instead of death sentence, did not argue well even though he might be ultimately
correct in his final judgment. Thus, in Avtar Singh v. Emperor} the Judge concerned
considered it proper to award a sentence of life imprisonment instead of death, for
the reason that the accused was initially condemned to death which remained
suspended for a period of over six months. Giving reasons for his decision, the
learned Judge observed that it was unjust to keep the sentence of death hanging over
the head of the accused for a long period of over six months because it must have
caused him great mental torture. The Judge therefore, thought it proper to reduce the
sentence of death to that of life imprisonment. But in another case, i.e., Queen v.
Osram Sungra,487 where the accused committed a deliberate cold blooded murder for
ulterior motives, the Court awarded a lesser punishment of life imprisonment
instead of death, without recording reasons of such leniency.
Restrictions on the discretion of the Judge to record reasons for awarding a
lesser punishment of life imprisonment to the murderer instead of sentence of death
were withdrawn by the Amending Act,488 of 1955. After this amendment, the Judge
had the discretion to commute the sentence of death to that of life imprisonment, but
in case he considered the imposition of death sentence necessary, he had to state the
reasons as to 'why a lesser penalty would not
1.487 (1886) 6 WR (Cr) 82.

AIR 1980 SC 898.
488 Section 66 of the Criminal Law Amendment Act, (XXVI of 1955).
serve the ends of justice. Thus, the amendment dearly reflected the shift in trend
towards death penalty.
The Code of Criminal Procedure, 1973, also contains a provision regarding
death sentence. Section 354 (3) of the Code provides that while awarding the
sentence of death, the Court must record "special reasons" justifying the sentence and
state as to why an alternative sentence of life-imprisonment would not meet the ends
of justice in that particular case. Commenting on this provision of the Code, Mr.
Justice V.R. Krishna Iyer of the Supreme Court (as he was then) observed that the special
reasons which Section 354(3) speaks of provides reasonableness as envisaged in
Article 19 as a relative connotation dependent on a variety of variables, cultural,
social, economic and otherwise".489
The Code of Criminal Procedure, 1973 further requires that the sentence of
death imposed by the Sessions Judge can be executed only after it is confirmed by
the concerned High Court.490 That apart, Section 235(2) of the Code further casts a
statutory duty upon the Court to hear the accused on the point of sentence. The Court
should also call upon the State, i.e., the Public Prosecutor to mention giving reasons
whether or not that extreme penalty prescribed by law is called for in view of the
facts and circumstances of the case.
It is thus evidently clear that a heavy duty cast by Section 302 of the Indian
Penal Code on the Judge, of choosing between death and imprisonment for life for
the person found guilty of muder, is expected to be discharged in a highly responsible
manner by complying with die provisions contained in Sections 354(3) and 235(2) of
the Code of Criminal Procedure so that the principle of natural justice and fair play
holds its sway in the sphere of sentencing. These provisions also help the Judge to
individualise sentencing justice and make it befitting to the crime and the criminal.
The rationale of the above procedural safeguards and the aweful consequences
of a death sentence on the convict, his family and society were considered by the
Supreme Court once again in the case of Allauddin Mian v. State of Bihar.491 In this case
the Apex Court held that when the Court is called upon to choose between the
convict's cry 'I, want to live' and the prosecutor's demand, 'he deserves to die', it must
show a high degree of concern and sensitiveness in the choice of sentence.
The Supreme Court further observed that 'special reason clause' contained in
Sec. 354(3) of Cr. P.C. implies that the court can impose extreme penalty of death in
appropriate cases. The provision of Section 235(2) of the Code calls upon the Court
that the convicted accused must be given an opportunity of being heard on the
question of sentence. This provides the accused an opportunity to place his
antecedents, social and economic background and mitigating and extenuating
circumstances before the Court.
Besides the statutory provisions, the Constitution of India also empowers the
President492 and the Governor493 of the State to grant pardon to the condemned
offenders in appropriate cases. These powers are, however, co-extensive with the
legislative powers. The power to cut short a sentence by an act of executive
clemency494 is not subject to judicial review. It is an exclusive domain of the
489 Rajendra Prasad v. State of U.P., AIR 1979 SC 916 (931).

490 Section 366(1) of the Code of Criminal Procedure, 1973.
491 AIR 1989 SC 1456.
492 Art. 72 of the Constitution of India.
493 Art. 161.
494 Twentyeight mercy appeals were pending Presidential disposal as on 31st December,
executive in India495 and elsewhere.496 It is significant to note that the controversy

raised in this regard in Nanavati's case497 has been settled by the Supreme Court once
for all in the case of Sarat Chandra v. Khagendra Nath,498 which affirmed the principle
that sentencing powers of judiciary and executive are readily distinguishable.
Judicial Trend
The magistracy has more often than not, used Section 354(3) of the Code of
Criminal Procedure to justify its stand either in support of or against the award of
capital punishment. The abolitionists see this provision a green signal for dilution of
capital punishment while for the retentionists the special reasons contemplated by
Section 354(3) implicitly suggest that death sentence is legally and constitutionally
permissible.
It must, however, be noted that what appears to one Judge as extenuating
circumstances justifying commutation of death sentence to that of life-imprisonment,
may not be necessarily so with the other Judge. Thus in Kunju Kunju Janardhanam v.
State of Andhra Pradesh,499 the accused, infatuated by the charm of a village girl,
committed brutal murder of his innocent wife and two minor sons while they were
asleep in dead of night. The girl, on her part, had warned the accused through her
letters not to destroy his happy family life by the illicit intimacy but the accused paid
no heed and chose to commit triple murder with extreme depravity. Though the
majority by 2 : 1 commuted death sentence to that of imprisonment for life, Mr.
Justice A.P. Sen, in his dissenting judgment disagreed with the majority and, observed
:500
"The accused who acted as a monster, did not even spare his two
innocent minor children in order to get rid of his wife and issues
through her ; if death sentence was not to be awarded in a case like
this I do not see the type of offences which call for death sentence."
A perusal of some of the Supreme Court decisions involving award of death
penalty would reveal that sudden impulse or provocation501 uncontrollable hatred
arising out of sex indulgence,502 family feud or land dispute,503 infidelity of wife504 or
sentence of death hanging over the head of the accused for a considerable long
period of time due to law's delay,505 have been accepted as extenuating circumstances
justifying lesser penalty of life imprisonment instead of death sentence. Mr. Justice
Krishna Iyer of the Supreme Court of India, however, made it clear in Rajendra Prasad
2010 of which 12 petitioners died during pendency of their petition.

495 Piare Dusadh v. Emperor, AIR 1944 FC 1.
496 The Prerogative of Mercy the Power of Pardon & Criminal Justice, Public Law
(London) 1983 pp. 398-439.
497 AIR 1962 SC 605.
498 ADR 1968 SC 497.
499 Criminal Appeal No. 511 of 1978 disposed of alongwith Rajendra Prasad's case (AIR
1979 SC 916).
500 Ibid., p. 962.
501 Ummilal v. State of M.P., AIR 1981 SC 1710 ; see also Dalbir Singh v. State of
Punjab, AIR 1979 SC 1384 and Gura Singh v. State of Rajasthan. (1984) Cr. L.J. 1423 (1428).
502 Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.
503 Chawla v. State of Haryana, AIR 1974 SC 1089 : Guru Swamy v. State of Tamil Nadu, AIR 1979
SC 1177 ; Shidagouda Ningappa v. State of Karnataka, AIR 1981 SC 764.
504Bishnu Dev Shaw v. State of West Bengal AIR 1979 SC 702.
505T. V. Vatheeswaran v. State of Tamil Nadu, 1983 Cr LJ 481.
v. State of U.P.,506 that where the murder is deliberate, premeditated, cold-blooded and
gruesome507 and there are no extenuating circumstances, the offender must be
sentenced to death as a measure of social defence.508
The pros and cons of "life or death" sentence have been extensively dealt with
by the Supreme Court of India in Rajendra Prasad's509 case. Therefore it would be
pertinent to state the facts of the case to analyse the entire issue in its proper
perspective.
The accused in the instant case was a "desperate character" who had undergone
sentence of imprisonment for life and was released on Gandhi Jayanti day in 1972, a
few days prior to the occurrence. On 25th October, 1972 the accused suddenly
attacked one Rambharosey and dealt several blows on vital parts of his body with
knife. Rambharosey released himself from the grip of the accused and ran inside his
house and bolted the door. The accused chased him all the way with the blood-
stained knife and knocked at the door asking him to open it. Meanwhile, the deceased
Mansukh came and tried to entreat the accused not to assault Rambharosey.
Thereupon, the accused struck deceased Mansukh, who tried to escape but the
accused chased him over a distance of 200 to 250 feet and inflicted repeated knife
blows on him which resulted into his death. The deceased was done to death by the
accused because the former tried to prevent him from assaulting Rambharosey.
The Supreme Court by a majority of 2 to 1 and speaking through Mr. Justice V. R.
Krishna Iyer, attributed failure of penal institutions to cure criminality within the
criminal as the sole cause of this cruel murder and allowed commutation of death
sentence of the accused to that of life imprisonment. The Court, inter alia, observed :
"A second murder is not to be confounded with the persistent
potential for murderous attack by the murderer. This was not a
menace to the social order but a specific family feud .......... here was
not a youth of uncontrollable, violent propensities against the
community but one whose paranoid pre-occupation with family
quarrel goaded him to go at the rival."
Expressing his compassion for the condemned accused the learned Judge
further observed :
"This convict has had the hanging agony hanging over his head
since 1973 with near solitary confinement to boot ! He must by now
be more a 'vegetable' than a person and hanging a "vegetable" "is not
death penalty".
However, reacting sharply to the majority view, Justice A.P. Sen in his
dissenting judgment in this case pleaded that the accused deserved no leniency in the
award of death sentence. To quote his own words
"the case of this accused is destructive of the theory of reformation.
The "therapeutic touch" which is said the best of preventing
repetition of the offence has been of no avail. Punishment must be
designed so as to deter, as far as possible from commission of similar
offences. It should also serve as a warning to other members of
society. In both aspects, the experiment of reformation has miserably
failed. I am quite sure that with the commutation of his death
506AIR 1979 SC 916.

507 Harihar Singh v. State of U.P., AIR 1975 SC 1501.
508 Sarveshwar Prasad Sharma v. State of M.P., AIR 1977 SC 2423.
509 AIR 1979 SC 1384.
sentence, the accused will commit a few more murders and he would
again become a menace to the society."
The learned Judge further observed510 :
" ....... the humanistic approach should not obscure our sense of
realities. When a man commits a crime against society by
committing a diabolical, cold-blooded, pre-planned murder of one
innocent person the brutality of which shocks the conscience of the
Court, he must face the consequences of his act. Such a person
forfeits his right to life."
In a way Rajendra Prasad's case provided an appropriate opportunity for the
Supreme Court to express its view on need for dilution of death penalty in the
context of Indian society. Citing extensively from Anglo-American literature511
available on the subject and the relevant case law.512 Mr. Justice Krishna Iyer tried to
derive at the point that special reasons referred to under Section 354(3) of the Code
of Criminal Procedure must be liberally construed so as to limit death penalty only to
rare categories of cases such as white collar crime, anti-social offences like hijacking
or selling of spurious liquor, etc. and hardened murderers. The learned Judge
emphatically stated that, by and large, murders in India are not by a calculated
professionally cold-blooded planning but something that happens on the spur of a
moment due to sudden provocation, passion, family feud, or an altercation etc. which
motivates one to go to extreme and commit the crime and therefore, there are
prospects for reformation of the offenders if they are not done away to death.
The Justice Krishna Iyer discarded the award of death penalty from the
constitutional standpoint also. He emphatically stressed that death sentence is
violative of Articles 14,19 and 21 of the Constitution of India. To quote his own
words :513
"Corporeal death is alien to fundamental rights. Restriction on
fundamental rights are permissible if they are reasonable. Such
restrictions may reach the extreme state of extinction only if it is so
completely desirable to prohibit them totally. While sentencing, you
cannot be arbitrary since what is arbitrary is per se unequal."
Summing up the Supreme Court concluded that commutation of death penalty
to imprisonment for life is justified in the instant case keeping in view the
ideological, constitutional, criminological and cultuial trends in India and abroad.
The ruling in Rajendra Prasad’s case was followed in two subsequent cases
decided by the Supreme Court in the same year. In one case,514 the accused was
sentenced to death by the High Court but on appeal his sentence was commuted to
life imprisonment because the murder arose out of a family quarrel relating to
division of land and the fact that the appellant was under the sentence of death for six
long years was by itself enough to justify mitigation of sentence.
510 Ibid., at p. 946.

511 Mr Justice Krishna Iyer referred to the views expressed by H.L.A. Hart, Justice Cardozo, Sir
Walter Moberly' James Stephen, Sir Samuel Romilly etc. on capital punishment. References to
the Stockholm Declaration of Amnesty International Conference (10th, 11th December, 1977),
Royal Commission Report on Capital Punishment (England) Homicide Act, 1957 ; The Abolition
of Capital Punishment Act, 1955, the Criminal Law Review Committee Report 1972 etc. were
also made by Mr. Justice Krishna Iyer to support his views on dilution of death sentence.
512 Furman v. Georgia, (1972) 408 US 238.
513 Rajendra Prasad's case, AIR 1979 SC 916 at p. 982.
514 Guruswamy v. State of Tamil Nadu, AIR 1979 SC 1177.
In another case,515 although the accused was convicted for quadruple murder and
sentenced to death, but the Supreme Court in appeal reduced it to one of
imprisonment for life on the ground that dispute related to regulating "turns" for
taking irrigation water for agricultural purposes and the earlier provocation came
from the deceased side by beating the accused.
A year later, the Supreme Court, was once again called upon to settle the
controversy over choice between death penalty and imprisonment for life,516 but this
time by a larger Bench of five Judges. Overruling its earlier decision in Rajendra
Prasad, the Court by a majority of 4 to 1 (majority view taken by Mr. Justice Y. V.
Chandrachud, O. J. Sarkaria, Gupta and Untavalia, JJ. while Bhagwati, J. dissenting)
expressed a view that death sentence as an alternative punishment for murder is not
unreasonable and hence not violative of Articles 14,19 and 21 of the Constitution,517
because the "public order" contemplated by clauses (2) to
(4) of Article 19 is different from "law and order". Justifying retention of death
penalty as an alternative punishment in reference to Section 354(3) of the Code of
Criminal Procedure, 1973 the Court, inter alia, observed :518
"The question whether or not death penalty serves any penological
purpose is a difficult, complex and intricate issue. It has evoked
strong divergent views.... notwithstanding the view of the
abolitionsists to the contrary, a very large segment of people, the
world over, including sociologists, jurists, judges and administrators
still firmly believe in the worth and necessity of capital punishment
for the protection of society."
The Court further observed : "the Supreme Court should not venture to
formulate rigid standards in an area in which the legislators so wearily tread, but it
may certainly lay down broad guidelines consistent with the policy indicated by the
legislature in this regard."
The majority, however, expressed the need for liberal construction of mitigating
factors in the area of death penalty and held that dignity of human life postulates
resistance to taking life through laws instrumentality, that ought not to be done save
in rarest of rare cases when alternative option is unquestionably foreclosed.
Negativing the abolitionist's contention that vengeance which is no longer an
acceptable end of punishment, that it is contrary to reformation of criminal and his
rehabilitation, and finally that it is inhuman and degrading, the Supreme Court ruled
that though life imprisonment is the rule, death sentence must be retained as an
exception for the offence of murder under Section 302, I.P.C. to be used sparingly.
Following the ruling laid down in Bachan Singh} the Supreme Court upheld the
death sentence of the accused in Machi Singh and others v. State of Punjab} on the
ground that the murder committed was exceptionally depraved and heinous in
character and the manner of its execution and its design indicated the extreme
brutality and cruelty of the accused. The accused in the instant case had killed two
innocent and helpless women. Their Lordships of the Supreme Court opined that the
'rarest of rare cases' doctrine was clearly attracted in this case and that the sentence of
death was perfectly justified.
515 Dalbir Singh v. State of Uttar Pradesh, AIR 1979 SC 1384.

516 Bachan Singh v. State of Punjab, AIR 1980 SC 898.
517 Jag Mohan Singh v. State of U.P., AIR 1973 SC 947 the Supreme Court observed that capital
punishment is not unreasonable per se and is not violative of Article 19 of the Constitution of
India.
518 Bachan Singh v. State of Punjab, AIR 1980 SC 898.
While deciding this case (i.e. Machi Singh), the Apex Court realised that the
'rarest of rare cases' doctrine had caused 'inner conflict' in the minds of the Judges
because it was left much to the judicial discretion to decide whether the case fell
within the category of rarest of rare case or not. Hence, the Supreme Court laid down
a five-point formula based on the manner in which the murder was committed and
the motive, nature and magnitude of the crime and the personality of the victim. The
factors which the Court was expected to take into consideration for this purpose may
be briefly stated as follows :—
1. The manner in which the offence of murder was committed. If it was
committed with extreme brutality such as burning the victim alive or
cutting body into pieces, it would be a fit case to be considered as rarest
of rare case.
2. When the motive reveals depravity and meanness of the murderer e.g.
crime being committed for material gain.
3. When the murder is socially abhorrent such as bride burning or killing of a
Harijan infanticide etc.
4. When the magnitude of the offence is enormous as in case of multiple
murders.
5. When the victim is an innocent child, a helpless woman, or a reputed
figure i.e. the case of a political murder.
The Court, however, cautioned that these guidelines should not be applied too
literally. Instead, the Judges should interpret the provisions rationally to ascertain
whether 'collective conscience of the community has been shocked, if so, the Judge
may award death penalty'.519
The Supreme Court reiterated its approval for death sentence once again in its
decision in Chopra Children520 murder case. In this case the accused Kuljeet Singh alias
Ranga along with one Jashbir Singh alias Billa committed gruesome murder of two
teenage children Gita Chopra and her brother Sanjay in a professional manner and
was sentenced to death by Additional District Judge, Delhi. The High Court
confirmed the conviction and death sentence whereupon appellant moved in appeal
to Supreme Court. Dismissing the appeal, the Supreme Court upheld the conviction
and sentence of the accused on the ground that the murder was preplanned, cold-
blooded and committed in most brutal manner, hence there were no extenuating
circumstances warranting mitigation of sentence.
The Supreme Court in its decision in T. V. Vatheeswaran v. State of Tamil Nadu,521
reiterated that prolonged delay in execution exceeding two years will be a sufficient
ground to quash death sentence since it is an unjust, unfair and unreasonable
procedure and the only way to undo the wrong is to quash the death sentence. The
Court further observed that the cause of delay is immaterial when the sentence is that
of "death" and a person under sentence of death may also claim fundamental rights,
i.e. procedure under Article 21 must be just, fair and reasonable.
But soon after, in Sher Singh v. State of Punjab,* the Supreme Court overruled its
earlier ruling in Vetheeswaran's case. Delivering the judgment in this case, Chief Justice
Mr. Y. V. Chandrachud observed that death penalty should only be imposed in rare and
exceptional cases but any death sentence upheld by the Supreme Court should not be
519Dim v. State of U.P., AIR 1983 SC 1155.

520 Kuljeet Singh alias Ranga v. Union of India, AIR 1981 SC 1572 (Ranga-Billa case).
521AIR 1983 SC 361.
allowed to be defeated by applying any rule of thumb. The learned Court further
observed that no hard and fast rule can be laid down as far as the question of delay
was concerned. If a person was allowed to resort to frivolous proceedings in order to
delay the execution of death sentence, the law laid down by Court on death sentence
would become an object of ridicule. Therefore, dismissing the writ-petition the
Supreme Court in this case directed the Punjab Government to explain the delay in
execution of the death sentence.
In yet another case, namely, Javed Ahmad Abdulhamid Pawala v. State of
Maharashtra,522 the Supreme Court upheld the sentence of death for a gruesome and
brutal murder. In the instant case, the appellant was convicted for multiple murders.
He killed his sister-in-law aged 23 years, his little neice aged 3 years, his baby
nephew aged about one and half years and the minor servant aged about 8 years. The
motive of murders was the golden ear-rings and bangles of the deceased. The sister-
in-law sustained 20 stab-injuries, neice 13 stab wounds, servant 8 incised wounds and
baby neice 3 injuries. The accused was convicted for murder and sentenced to death.
His conviction was upheld by the High Court. He thereupon moved an appeal to the
Supreme Court only on the question of sentence. Dismissing his appeal the Supreme
Court, inter alia observed :—
"The appellant acted like a demon showing no mercy to his helpless
victims three of whom were little children and one a woman. The
murders were perpetrated in a cruel, callous and fiendish fashion.
Although the appellant was 22 years of age and the case rested upon
circumstantial evidence, the Court were unable to refuse to pass the
sentence of death as it would be stultifying the course of law and
justice. It was truly the 'rarest of rare cases' and the Court had no
option but to confirm the sentence of death."
In the notorious Joshi-Abhyunkar murder case,523 the accused committed a series
of gruesome murders during January, 1976 and March, 1977. They were sentenced to
death by the trial Court which was confirmed by the Bombay High Court on 6th
April, 1979. The appellants thereupon filed special leave petitions before the
Supreme Court for commutation of death sentence to one of life imprisonment as the
"death" was hovering over their minds for five years. Two of the petitioners, namely,
Shanta Ram Jagtap and Munawar Shah pleaded that during this period they had
written a book entitled "Kalyan Marg" in Marathi and translated "Sukshma Vyayam"
written in English by Dhirendra Bramhachari into marathi. Dismissing the petitions,
the Supreme Court observed that the book-writing and translation work of the
petitioners belied that any spectre of death penalty was hovering over their minds
during the period they have been in jail. Therefore, any mercy shown in matter of
sentence would not only be misplaced but will certainly give rise to and foster a
feeling of private revenge among the people leading to destablisation of society.
The Supreme Court in Ranjit Singh v. Union Territory of Chandigarh524 was once
again called upon to decide an appeal relating to the question of sentence. In the
instant case, murder was committed by appellant, a life convict during parole. The
accused was sentenced to death on conviction under Section 303, I.P.C. and the co-
accused was awarded life-imprisonment. Agreeing with the contention of deceased's
522 AIR 1983 SC 594.

523 Munawar Harm Shah v. State of Maharashtra,- AIR 1983 SC 585.
524 AIR 1984 SC 45.
counsel the Supreme Court commuted the sentence of death to that of imprisonment
for life as Section 303, I.P.C., had been declared unconstitutional in Mithu v. State of
Punjab.525 The Court held that during parole appellant should have behaved like a law
abiding citizen but instead he indulged into hienous crime of murder hence the case
fell within the category of "rarest of rare cases".
Again, in Mahesh etc. v. S ' H e of M.P.,* the Supreme Court maintaining the
sentence of death passed by the High Court observed :
"it would be mockery of justice to permit the appellants to —
escape the extreme penalty of law..................... and to give lesser
punishment for the appellants would be to render justicing system of
this country suspect, the common man would lose faith in courts".
In the instant case, father and son had axed a person and three members of his
family and his neighbour who intervened merely because daughter of that person
married a Harijan boy. The Supreme Court held that interference with the sentence
was not called for because the act of appellants was extremely brutal, revolting and
gruesome which shocks the judicial conscience. Therefore, deterrent punishment was
a social necessity in the instant case.
The Supreme Court in its decision in Asharfi Lai & Sons v. State of li.P.,526 once
again upheld the death sentence of the accused who committed reprehensible and
gruesome murders of two innocent girls on 14th August, 1984 to wreck their personal
vengeance over the dispute they had with regard to property with the mother of
victims. The Court held that "the only punishment the accused deserved was nothing
but death". Commenting on die desirablity of death sentence the Court further
observed :
"failure to impose a death sentence in grave cases where it is a crime
against the society, particularly in cases of murders committed with
extreme brutality will bring to naught the sentence of death provided
by Sec. 302,1.P.C. It is duty of Court to impose proper punishment
depending upon the degree of criminality and desirability to impose
such punishment."
However, the execution of death sentence by public hanging was held as
barbaric and violative of Art. 21 of the Constitution. Even if the Jail Manual were to
provide public hanging, it would be declared unconstitutional.527
In Kamta Tiwari v. State of M.P.,528 the accused committed the rape on a seven
year old girl and strangulated her to death. He threw her body in a well and caused
disappearance of evidence. The accused was convicted for the offences under
Sections 363, 376, 302 and 201,1.P.C. and was sentenced to death by the trial court
and the sentence was maintained by the High Court. In appeal, the Supreme Court
upheld the decision of the lower courts and held that this is a 'rarest of rare cases' where
the sentence of death is eminently desirable not only to deter others from committing
such atrocious crimes but also to give emphatic expression to society's abhorrence of
such crimes. The Court, inter alia, observed :
"Before opting for death penalty, the circumstances of the 'offender
also require to be taken into consideration along with the
circumstances of the crime. A balance-sheet of aggravating and
525 AIR 1983 SC 473.

526 AIR 1987 SC 1721.
527 Lachma Devi v. State of Rajasthan, AIR 1986 SC 467.
528 AIR 1996 SC 2800.
mitigating circumstances has to be drawn up and in doing so the

mitigating circumstances have to be accorded full weightage and a
just balance has to be struck between the • aggravating and
mitigating circumstances before the option is exercised."
In yet another case, Ravji alias Ram Chandra v. State of Rajasthan,1 the Supreme
Court found no justification in commuting the death penalty to imprisonment for life.
In this case, the accused had committed murder of five persons including his wife and
three minor children and attempted to commit
murder of two others. The act was committed in cool and calculated manner
while victims were asleep. There was absence of provocation or any psychic disorder
which could be attributed to these brutal and heinous murders. Therefore, the Court
found no justification to commute the death penalty to imprisonment for life and
dismissed the appeal.
In Karan Singh and another v. State of Uttar Pradesh,* the accused killed five
members of a family one by one in a very dastardly manner by butchering them with
axes and other weapons on 12th March, 1998. After killing three of them the accused
went to the house of the deceased and killed the children who were in no way
involved with the property disputes which was the cause of enmity between the
deceased and the accused persons. The Supreme Court after reappraisal of the entire
facts and circumstances of the case, declined to commute the death sentence
imposed on the appellants and confirmed it as a result of which the interim stay
granted by the Supreme Court on 2nd March, 2004 on the execution of the death
sentence was vacated.
In Geneta Vijayavardhan Rao & another v. State of Andhra Pradesh,529 the two
appellants were accused of setting up a super express bus on fire by sprinkling petrol
with the motive of plundering the passengers. This resulted into roasting 23
passengers to death, besides a number of passengers sustained serious bum injures.
The defence plea was that the accused were young and their prime motive was not
murder but plundering property which could be considered a mitigating
circumstance warranting commutation of death sentence to that of imprisonment for
life. However, the supreme court rejected the defence plea and ruled that considering
the overall picture, the case was one of the rarest of rare cases not merely because of
record number of innocent human beings roasted alive but the inhuman manner in
which the scheme of crime was plotted and executed.
In Simon and others v. State of Karnataka,530 the accused persons (Appellants) were
found guilty under the TADA (Terrorist Disruptive Activities Act, 1987, Sections 3,
4 and 5) as they were members of notorious gang and their prime target was police
personnel of the State and Special Task Force constituted for countering them. The
accused had in a pre-planned manner laid land-mines enroute the party which was
proceeding to nab Veerappan. The blast resulted in death of 22 persons and injuries
to many others. As a result of the criminal activities of the appellants, the normal life
of those living in the area had been totally shattered. All the accused were sentenced
to life imprisonment whereupon the State moved a petition (SLP) to the High Court
for enhancement of life imprisonment to death penalty which was dismissed on the
ground of limitation. In appeal, the Supreme Court observed that although the power
to enhance death penalty from life imprisonment should be very rarely exercised
when there are strongest reasons, but it can certainly be considered where the facts
are such that any punishment less than death sentence would shock the conscience of
the Court. The Court further ruled that dismissal of SLP filed by the State seeking
enhancement of sentence on the ground of limitation does not take away the power
of the Supreme Court to make an order enhancing the sentence if the facts call for
such an order. The Court therefore, enhanced the sentence of each-appellant from
imprisonment of life to death penalty.
In Gurmeet Singh v. State of U.P.,531 the appellants with one Lakha Singh murdered
529 AIR 1996 SC 2791.

530 AIR 2004 SC 2775.
531 AIR 2005 SC 3616.
thirteen members of his family in his house in moon-light when all deceased were
sleeping on 17th August, 1986. The petitioner was living jointly with the deceased
person who were his father, two real elder brothers and their wives, four sons and
four daughters of these elder brothers. He did not spare even the small kids of the
family. The reason of these gruesome murders was flimsy. The appellant had been
married about one year prior to this incident. He was staying together in the joint
family. The members of the family were suspecting unnatural relationship between
his newly married wife and appellant's friend Lakha Singh (co-accused in the case).
Lakha Singh used to visit her very often and even stayed with her. The family
therefore, objected to this which enraged the appellant and he along with Lakha
decided to finish the life of entire family. The appellant had appealed to the Supreme
Court for commutation of his death sentence to life imprisonment on the ground of
delay in execution of it which the Supreme Court did not think proper in the interest
of justice.
In Manohar Lai alias Munna & another v. State of Delhi,532 the two accused
(appellants) killed four sons in presence of the sole eye-witness, the mother by setting
them ablaze. The incident was the result of the carnage fuelled by the assassination of
Mrs. Indira Gandhi which scored a heavy toll on Sikh community in Delhi. The
accused were convicted for offences under Sections 302 and 396 read with Section
149,1.P.C. by the Session Court and sentenced to death on the first count and to life
imprisonment on the other. The High Court of Delhi confirmed the conviction and
sentence. Thereupon, the appellants filed the criminal appeal by special leave. The
Supreme Court held that the act of accused though gruesome, they had no special or
personal enmity towards the deceased persons. It was the assassination of Prime
Minister Indira Gandhi which had blindfolded the accused. It could be said that the
act of the mob of which the appellants were the members was only the result of a
"temporary frenzy". Therefore, sentencing accused to death would not be proper and
as such it is altered to that of imprisonment for life.
Reference may also be made of the Supreme Court decision in Kishori v. State of
Delhi,533 consequent to the assassination of Mrs. Indira Gandhi, large scale rioting and
arson took place in different parts of Delhi on 1st and 2nd November, 1984. Many
persons were burnt alive or mercilessly killed. The charges against four accused
persons, namely, Kishori (appellant), Rampal, Saroj and Shabnam were framed under
Sections 148, 183, 302 and 307 read with Section 149, I.P.C. Having been sentenced
to death by the trial court and confirmed by the High Court of Delhi, the appellant
Kishori filed Special Leave Petition in the Supreme Court challenging the judgment
of the High Court. During the hearing, it was stated that Kishori was allegedly
involved in several incidents which gave rise to seven cases, four of which ended in
his acquittal and in three cases, he was sentenced to death. The Supreme Court, in
this case
1.
532AIRAIR
19992000
SC 1221.
SC 420.
533 AIR 1999 SC 382.
observed :
"The law is well settled by reason of the decisions of this Court that
capital punishment can be imposed in the rarest of rare cases and if
there are aggravating circumstances... Experts in criminology often
express a view that where there is mob-action, as in the instant case,
there is diminished individual responsibility unless there are special
circumstances indicating that a particular person had acted with any
pre-determined motive such as use of weapon not normally found."
In the instant case, all the witnesses speak that there was a mob attack resulting
in the death of three persons. Though the appellant is stated to be responsible for
inflicting certain knife injuries, yet it is not clear whether those injuries themselves
were sufficient to result in the death of the deceased persons. The acts of the mob of
which the appellant was a member cannot be said to be the result of an organisation
or group indulging in planned violent activities formed with any purpose or scheme
which can be called as an organised activity. The Supreme Court therefore, decided
that "on the totality of the circumstances, this is not a case which can be called "a
rarest of rare cases" which warrants imposition of maximum sentence of death.
Hence while confirming the conviction of the appellant on charges framed against
him, the sentence is reduced from capital punishment to that of life imprisonment
and with this modification, the appeal stands dismissed.
In the case of Nirrrnl Singh & another v. State of Haryana,* the two accused
Dharampal and Nirmal were convicted for murder of 5 persons on the evidence of
two eye-witnesses corrcjborated by the evidence of other witnesses and medical
evidence. Accused Dharampal was already convicted in a rape case on the testimony
of close in-laws of the deceased. He was sentenced to ten years' imprisonment and
preferred an appeal and obtained a bail from the High Court. He had given a threat
to deceased persons on previous occasion that if any body gives evidence in the rape
case, the whole family will be wiped off. He has misused the privilege of bail and
killed five persons who were all members of family of Punam (the victim of rape
case) whose deposition was responsible for Dharampal's conviction. He had killed
all the 5 persons with Kulhari which indicated his depraved mind. The Apex Court
held that the brutal and merciless killing by the accused was certainly a case which
fell within the category of rarest of rare cases and deserved the sentence of death by
hanging till death.
The Court, however, reduced the sentence of death awarded to the other
accused, namely, Nirmal the brother of Dharampal to life imprisonment holding that
it stood totally on a different footing than that of Dharampal's case. Dharampal was
already undergoing a sentence of ten years in a rape case whereas Nirmal had no
past criminal antecedents nor could he constitute a threat to the society. He had only
assisted Dharampal in hitting the deceased after Dharampal's blows inflicted by
kulhari. Therefore, his case cannot be said to be rarest of rare case and therefore, his
sentence was commuted to that of

In Mohd. Charrnn v. State of Delhi,534 the accused had committed rape on a minor
girl Ritu aged one and a half years when her parents and two sisters were away from
home. As a result of this brutal and ghastly act, the child suffered several injuries and
died. The trial Court convicted the accused under Sections 302 and 376, I.P.C. and
sentenced him to death which was confirmed by the High Court. On appeal, the
Supreme Court held that, when the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community, these should be construed as aggravating
circumstances for imposition of death sentence. In the instant case, the crime
committed is undoubtedly serious and heinous and reveals a dirty and perverted
mind of a person who has no control over his carnal desires. But taking guidelines
laid down in Bechan Singh (supra), the case is one which deserves humanist approach
and therefore, capital sentence imposed against appellant is commuted to
In the case of Amit alias Ammu v. State of Maharashtra,535 the accused aged 20
years (appellant) took deceased, a school girl of about 12 years of age to a secluded
place and committed rape on her and strangulated her to death. He was sentenced to
death by the Sessions Court in view of heinousness of the crime and also ordered
fine of Rs. 25,000/- to be paid to the parents of the victim for mental torture, agony
and the loss sustained of their only female child. The High Court confirmed the
aforesaid sentences on the ground that the case fell in the category of 'rarest of rare
case. On appeal, the Supreme Court held that conviction of the appellant for the
offence under Sections 302 and 376, IPC, has been rightly recorded by the Court of
Session and affirmed by the High Court. But considering that the appellant is a
young man of 20 years, he was a student and there being no previous record of any
heinous crime and also there being no evidence that he will be a danger to the
society, and considering the circumstances of the case and cumulative facts, the
Apex Court held that the case did not fall in the category of 'rarest of rare' case and
hence the sentence of death was modified to one of imprisonment for life. The appeal
was allowed only to the extent of modification of sentence.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal,536 the appellant was
found guilty of committing rape and murder of a school going 18 year old girl in
retaliation for his transfer as a security guard to some other building complex, on the
complaint by the deceased girl to her parents that the appellant was teasing and
harassing him. His appeal having failed in the High Court and the Supreme Court
and the mercy appeal being rejected by the Governor of West Bengal and also the
Hon'ble President of India, he was finally hanged till death on 14th August 2004 in
Alipore Jail of West Bengal in execution of his death sentence. The facts of the case
were as follows :—
The appellant was security guard deputed to guard the building 'Anand
Apartments'. Deceased (girl) had made complaint about the teasing by the appellant
to her mother previously also and her father requested to replace the appellant and
accordingly he was transferred to Paras apartment. Anguished
534 2001 (1) C. Cr. J. 121 (SC).

535 AIR 2003 SC 3131.
536 Criminal Appeal Nos. 393-394 of 2004 decided on 26-3-2004.

from this, the appellant entered the house in the absence of other members,
committed rape and killed her. She was found dead on the floor with her skirt and
blouse pulled up and her private parts and breast were visible with patches of blood
near her head and floor. According to medical evidence, hymen of the deceased
showed fresh tear with fresh blood in the margins and blood stains on the vagina
and matted public hair. It is settled law that when the case is based on circumstantial
evidence, the motive also gets importance. In the circumstances the chain of the
evidence was so complete that it led to the guilt of the accused. The High Court
rightly upheld the conviction and sentence of death.
The ill-fated victim Hetal Parekh was raped and murdered on March 5, 1990
between 5.30 and 5.45 p.m. in her Flat No. 3-A, on the third floor of Anand
Apartment. The appellant was challaned and tried for rape and murder and also for
an offence under Section 380, IPC for committing theft of a wrist-watch from the
said flat. The learned Additional Sessions Judge found him guilty and convicted the
appellant (i) for an offence under Section 302 IPC and sentenced him to death, (ii)
for an offence under Section 376, IPC and sentenced him to imprisonment for life,
and (iii) for the offence under Section 380 IPC, he was sentenced to undergo
rigorous imprisonment for five years. The substantive sentences under Sections 376
and 380, IPC were ordered to rim concurrently but were to cease to have any effect,
in case the sentence of death for conviction of the appellant under Section 302 IPC
was confirmed by the High Court and the appellant was executed. Reference for
confirmation of the death sentence was accordingly made to the High Court. The
appellant also preferred an appeal against his conviction and sentence in the High
Court. The criminal appeal filed by the appellant was dismissed and the sentence of
death was confirmed by the High Court. On special leave being granted, the
appellant, Dhananjoy Chatterjee alias Dhana, filed an appeal.
There were no eye-witnesses of the occurrence and the entire case rested on
circumstantial evidence. In a case based on circumstantial evidence, the existence of
motive assumes significance though absence of motive does not necessarily
discredit the prosecution case if the case stands otherwise established by other
conclusive circumstances and the chain of such evidence is complete and takes one
irresistible conclusion about the guilt of the accused. In this case there was ample
evidence on record to show that the appellant had a motive to commit the alleged
crime and therefore, the Court rightly found the accused guilty of aforesaid
offences. Abscondence of the accused after the occurrence, though not by itself
sufficient to prove the guilt of the accused, was sufficient to support the case against
him. The Court therefore, rejected the belated and vague plea of alibi which it
considered to be only an afterthought and a plea in despair. The Court held that
prosecution has successfully established that the appellant alone was guilty of
committing rape of Hetal and subsequently murdering her.
As to the question of sentence, the trial Court awarded the sentence of death
and the High Court confirmed the imposition of capital punishment for the offence
under Section 302 of IPC for the murder of Hetal Parekh. Learned counsel
submitted that appellant was a married man of 27 years of age and there were no
special reasons to award the sentence of death on him. It was
further submitted that keeping in view the legislative policy discernible from Section
235(2) read with Section 354(3) of Cr.P.Cv the Court may make the choice of not
imposing the extreme penalty of death on the appellant and give him a chance to
become a reformed member of the society in keeping with the concern for the
dignity of human life. The learned counsel for the State, on the other hand canvassed
1. AIR 1980 SC 898.
for confirmation of the sentence of death so that it serves as a deterrent to similar
depraved minds. According to the learned State counsel, there were no mitigating
circumstances and the case was undoubtedly "rarest of the rare case" where the
sentence of death alone would meet the ends of justice. The Court observed as
follows :—
"We have given our anxious consideration to the question of
sentence keeping in view the changed legislative policy which is
patent from Section 354(3) Cr.P.C. We have also considered the
observations of this Court in Bachan Singh v. State of Punjab,*
But in recent years, the rising crime rate—particularly violent crime
against women has made the criminal sentencing by the courts a
subject of concern. Today there are admitted disparities.
Some criminals get very harsh sentences while many receive
grossly different sentence for an essentially equivalent crime and a
shockingly large number even go unpunished thereby encouraging
the criminal and in the ultimate making justice suffer by weakening
the system's credibility. Of course, it is not possible to lay down any
cut and dry formula relating to imposition of sentence but 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. In imposing sentences in
the absence of specific legislation, Judges must consider variety of
factors and after considering all those factors and taking an overall
view of the situation, impose sentence which they consider to be an
appropriate one. Aggravating factors cannot be ignored and
similarly mitigating circumstances have also to be taken into
consideration."
The Court further observed :
"In our opinion, the measure of punishment in a given case must
depend upon the atrocity of the crime; the conduct of the criminal
and the defenceless 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 befitting 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."
According to the Hon'ble Court, the sordid episode of the security guard, whose
sacred duty was to ensure the protection and welfare of the inhabitants
of the flats in the apartment, should have subjected the deceased, a resident of one of
the flats, to gratify his lust and murder her in retaliation for his transfer on her
complaint, makes the crime even more heinous. Keeping in view the medical
evidence and the state in which the body of the deceased was found, it is obvious that
a most heinous type of barbaric rape and murder was committed on a helpless and
defenceless school-going girl of 18 years. If the security guards behave in this
manner, who will guard the guards? The faith of the society by such a barbaric act of
the guard gets totally shaken and its cry for justice becomes loud and clear. The
offence was not only inhuman and barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the human dignity of the society.
The savage nature of the crime has shocked our judicial conscience. There are no
extenuating or mitigating circumstances whatsoever in the case. We agree that a real
and abiding concern for the dignity of human life is required to be kept in mind by
the Courts while considering the confirmation of the sentence of death but a cold
blooded preplanned brutal murder, without any provocation, after committing rape
on an innocent and defenceless young girl of 18 years, by the security guard certainly
makes this case a "rarest of the rare" cases which calls for no punishment other than
the capital punishment and we accordingly confirm the sentence of death imposed
upon the appellant for the offence under Section 302, IPC. The order of sentence
imposed on the appellant by the courts below for offences under Sections 376 and
380, IPC are also confirmed along with the directions relating thereto as in the event
of the execution of the appellant, those sentences would only remain of academic
interest. This appeal fails and is hereby dismissed.
As a last ditch to save his life, the appellant filed a mercy appeal with the
Hon'ble President of India which was rejected by an order of the President dated 4th
August 2004. Thereafter, the brother of the appellant filed a petition in the Supreme
Court seeking stay of Dhananjoy's execution of death sentence. But the five-judge
Bench of the Apex Court refused to review the President's decision to reject
appellant's mercy petition. Consequently, Dhananjoy's death sentence was executed
in Alipore Central Jail in West Bengal on 14th August 2004 by hanging him till
death.
Dhananjoy's case is undoubtedly a trend-setter in the history of capital
punishment in India and clearly indicates that the principle laid down in Bachan
Singh's case i.e., "rarest of rare" case is best suited to the socio-millieu of the Indian
society even in the present 21st century.537
In Surja Ram v. State of Rajasthan,2 the accused brutally murdered his real
brother, brother's two sons and aunt while they were asleep. He also attempted to
murder brother's wife and daughter. The Supreme Court upheld the sentence of death
as the murders were committed in a cool and calculated manner and without any
provocation. Therefore, it clearly fell in the category of rarest of rare cases.
537 'Nata Mullick' was the hangman who executed death sentence of Dhananjay Chatterjee in
Central Jail Alipore (WB). He was about 85 years of age and had executed more than 100
persons
1. AIR to death.
1980 SC 898. There is a 83 minutes documentary on Nata Mullick's life titled 'A Day from
Hangman's Life". He passed away at the age of 89.
ATT? 1007 or 1B
The Supreme Court in Krishan v. State of Haryana,538 declined to hold that the
appellant's case fell in the category of 'rarest of rare cases' and therefore, commuted
death sentence to one of life imprisonment. In this case, the accused was already
serving a sentence of life-imprisonment for a murder and he was found guilty of
committing another murder of a person with whom he had a property dispute while
he was released on parole. The Court ruled that undoubtedly felonious propensity of
offender is a factor which requires consideration for the sentence of death but that
cannot be made the sole basis for award of death sentence as all other factors such as
motive, manner and magnitude should also be taken into consideration.
In Raja Ram Yadav & others v. State of Bihar,539 the appellants (eight in number)
were charged for committing premeditated murder of six persons in a cool and
calculated manner with extreme cruelty and brutality under Sections 302, 436 read
with Sections 148 and 120-B, I.P.C. The incident occurred when a group of persons
committed mass massacre of 26 persons out of which 25 belonged to one community
and 20 of them also belonged to the same family in the village Bhagora, Police Station
Madanpur, Distt. Aurangabad on the night of 30th May, 1987. The conviction was
based on the testimony of solitary child witness who was five year old son of one of
the deceased. His deposition was held convincing and reliable. The Supreme Court
ruled that normally sentence of death was wholly justified keeping in view the special
facts of the case, but it will not be proper to award extreme sentence of death on the
appellants hence it would be proper to commute the death sentence to one of the life
imprisonment.
Again, in the case of Ashok Kumar v. The State of Delhi Administration,540 the
allegations against the accused were that he was having illicit relations with co-
accused and killed her husband in a room of hotel by striking him with stone. The
High Court enumerated as many as eleven circumstantial evidence against the
appellant and spelt out the case to be 'rarest of rare' one. The Supreme Court held the
view that appellant was rightly convicted of the offence under Section 302, I.P.C. as
the chain of circumstances fully established the guilt of the accused. However, on the
point of sentence, the Apex Court observed that the act of striking the deceased with
a handy stone and causing the death cannot be said to be so cruel, unusual or diabolic
which would warrant death penalty. Therefore, the Court commuted the death
sentence of the appellant to that of imprisonment for life.
In Renuka Bai alias Rinku alias Ratan and another v. State of Maharashtra,541 the
appellants Renuka and Seema, both sisters, their mother Anjalibai, a co-accused who
died in 1997 and approver Kiran Shinde (husband of Renuka) all belonging to Pune
used to commit thefts by snatching the gold chains in festival or crowded places and
made a living out of the income derived from such thefts. They used to have a child
with them at the time of committing the crime so that by making use of child they
would easily escape from the crowd. So all of them used to enter into a conspiracy to
kidnap small children below 5 years of age and make use of them whenever
necessary and dispose them of when they were no longer useful. In this manner they
killed as many as 9 children during the period June, 1990 to October, 1996. They
were convicted on various counts and the two accused Renuka and Seema were
sentenced to death by the Sessions Court and their sentence was confirmed by the
High Court. The approver Kiran Shinde had also kidnapped 13 children and caused
538 AIR 1997 SC 2598.

539 AIR 1996 SC 1613.
540AIR 1996 SC 265.
541AIR 2006 SC 3056.
death of 9 out of them. The appellants were also found guilty of offences under
section 364 read with Section 120-B of IPC and also section, 323 IPC.
In appeal against the death sentence, the Supreme Court held that there were no
mitigating circumstances in favour of the appellants, except for the fact that they
were women. But the nature of the crime and the systematic way in which each child
was kidnapped and killed amply demonstrated the depravity of the mind of the
appellants. The appellants were clearly a menace to the society and the people of the
locality were completely horrified and could not send their children even to schools.
The Court observed, "we are alive to the new trends in the sentencing system in
criminology, but we do not think that appellants are likely to reform." Therefore,
their conviction and death sentence was confirmed and the stay of execution of
capital punishment imposed on them was vacated.
In Mahendra Nath Das v. State of Assam,542 the appellant (accused) was a young
man who killed the deceased and chopped off the hands and head of the dead body.
Thereafter, he came to the police station along with the chopped hand and head of
the deceased to make a confession of his offence. The Supreme Court considered
this murder as the rarest of rare case and upheld the death sentence of the accused.
The Court rejected the plea that the accused was a young man having liability of his
three young unmarried sisters and age-old parents who were solely dependent on
him.
In the case of Prem Sagar v. Dharambir & others,543 the accused were sentenced to
life imprisonment for committing murder by intentionally causing death of the
deceased in furtherance of common intention under Sections 302/34 I.P.C. In appeal
against the sentence by the informant, the Supreme Court held that undoubtedly,
brutality is inbuilt in every murder but in the case of every murder death sentence is
not imposed because life imprisonment is the rule and death sentence is the
exception. The sentence of death is imposable in rarest of rare cases. The Court
further noted that having taken into consideration the mitigating circumstances
indicated by the High Court, there was no scope for interference and altering the
sentence of life imprisonment to one of death sentence. The conviction of accused
Dharambir was therefore, affirmed. Tice Court, however, ordered acquittal of the
accused Karambir because the prosecution did not link him with the occurrence and
hence, his conviction was not justified.
The Supreme Court in Sushi! Murmu v. State of Jharkhand,544 reiterated the 'rarest
of rare case' doctrine and held, "when collective conscience of the community is
shocked and it will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or otherwise of
retaining death penalty, death sentence must be awarded."
In the instant case the appellant sacrificed a child of nine years before the deity
Kali by beheading him, for his own prosperity. The non-challant way in which he
carried the severed head in a gunny bag and threw it in the pond unerringly shows
that the act was diabolic of most superlative degree in conception and cruel in
execution, particularly when the appellant (accused) was having his own child of the
same age. The Supreme Court dismissed the appeal and laid down the test to
determine as to what cases may be covered under the 'rarest of rare' rule. According
to the Apex Court the following cases would attract the 'rarest of rare' doctrine to
justify imposition of death sentence :—
542 (1999) 5 SCR 102.

543 AIR 2004 SC 21.
544 AIR 2004 SC 394.
(1) When the murder is committed in an extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community;
(2) The murder is committed for a motive which evinces total depravity and
meanness;
(3) When murder is that of a member of Scheduled Caste or minority
community;
(4) When murder is in enormous proportion i.e., several persons are
murdered;
(5) When the victim of murder is an innocent* child or a helpless woman or
an old or infirm person.
The Court reiterated that death penalty should be the only punishment to be
awarded in the aforesaid cases.
In the case of Holiram Bordoloi v. State of Assam} the Supreme Court confirmed
the death sentence in the peculiar circumstances of the case. The Court listed out the
aggravating circumstances against the accused and held :—
(a) this is a case of cold-blooded murder;
(b) the accused was leading the gang;
(c) the victims did not contribute or provoke the incident;
(d) two victims were burnt to death by locking the house from outside;
(e) one of the victims was a young child of about 6 years of age, who
somehow, managed to come out of the burning house, but he was
mercilessly thrown back to the fire by the appellant (accused);
(f) the dragging of Nagarmol Bordoloi by the accused Holiram to his house
and then cutting him into pieces in broad daylight in the presence of
bystanders reflects on the depravity and barbarity of the offender;
(g) the whole incident took place in broad daylight and the crime was
committed in a most barbaric manner to deter others from challenging
the supremacy of the appellant (accused) in the village;
(h) the entire incident was pre-planned by the accused Holiram.
In absence of any mitigating circumstance in favour of the appellant (accused),
the Apex Court upheld the death sentence which in its opinion was
1. Criminal Appeal No. 1063/2004 decided on April 8, 2005.
the only appropriate punishment in view of the facts of the case.

In Satyendra v. State of Uttar Pradesh,x the accused persons who were variously
armed came in group by using cars and motor cycles and intercepted a bus knowing
fully well that deceased were travelling in that bus. They entered the bus from both
doors without giving an opportunity to deceased persons to escape, and killed them
on the spot. Two deceased who tried to escape from the bus, were chased by accused
and killed. The medical report testified deaths by gun-fires. The accused were
convicted under Section 149/302 (unlawful assembly and murder) and sentenced to
death by the trial Court which was affirmed by the High Court. In appeal, the
Supreme Court held that sentencing the accused to death was not proper because
various overt acts of individual accused persons were not established. Therefore, the
death sentence was converted to imprisonment for life.
In the case of Jay Kumar v. State of Madhya Pradesh,545 the accused was a young
man of 22 years of age who attempted to rape his sister-in-law (Bhabhi) but having
failed in his attempt, he murdered her and hanged her mutilated head on a tree. He
also murdered the 8 year old daughter of the deceased who was the sole witness to
this incident. The Supreme Court rejected the appeal and upheld the death sentence
on the ground that the double murder was committed in a brutal and gruesome
manner and deserved no leniency in the award of sentence.
In Molai & another v. State of Madhya Pradesh,546 the Supreme Court upheld the
death sentence of the two accused and expressed a view that the case squarely fell in
the category of one of the rarest of rare case. The facts of the case were as follows
:—
The victim, a girl named Naveen aged 16 years was alone in her home and was
preparing for her Xth class examination. Suddenly both the accused taking advantage
of her being alone in the house, entered the house and committed the shameful act of
rape and strangulated her by using her undergarment and thereafter took her to the
septic tank along with the cycle and caused injuries with a sharp edged knife. The
accused further exhibited criminality in their conduct by throwing the dead body into
the septic tank totally disregarding the respect for a human dead-body. The trial court
convicted the accused for rape and murder under Sections 375 and 300 and
sentenced them to death. The High Court upheld the conviction in appeal. On appeal,
the Apex court held that counsel for the accused (appellants) could not point any
mitigating circumstance which would justify reduction of the sentence; hence the
case squarely fell within the category of rarest of rare case and death sentence was
the only proper punishment in the instant case.
The Supreme Court in Ram Deo Chauhan and another v. State of Assam,547 reiterated
that commission of the murder in a brutal manner on a helpless child or the woman
in a pre-planned manner, justify the imposition of maximum penalty of death
sentence. In this case, the accused caused death of four persons of a family in a very
cruel, heinous and dastardly manner. His confessional statement showed that he
committed these murders after previous planning which involved extreme brutality.
Under the circumstances, the Court held that the plea that the accused was a young
person at the time of occurrence cannot be considered as mitigating circumstance
and therefore, death sentence imposed on the accused cannot be interfered with. The
Court further observed :
"it is true that in a civilised society a tooth for tooth, and a nail for
nail or death for death is not the rule but it is equally true that when
545 (1999) 5 SCC 1.

546 AIR 2000 SC 177.
547 AIR 2000 SC 2679.
a man becomes a beast and menace to the society, he can be

deprived of his life accordng to the procedure established by law, as
Constitution itself has recognised the death sentence as a
permissible punishment."
The Apex Court reiterated that in offences punishable with death, life sentence
is the rule and death sentence is exception but the present case is an exceptional case
which warrants the award of death sentence to the accused. The appeal was therefore,
dismissed.
In the case of Govindaswami v. State of Tamil Nadu,1 the Supreme Court speaking
through Mukerjee, J., observed that, "in case of murder committed in a gruesome,
brutal and calculated manner, declining to confirm death sentence will stultify the
course of law and justice. The commutation of death sentence to life imprisonment in
such case will be yielding to spasmodic sentiment, unregulated benevolence and
misplaced sympathy."
The Supreme Court in Bablu alias Mubarak Hussain v. State of Rajasthan} held
that, "a case would fall in the category of 'rarest of rare' case when the collective
conscience of the community is so shocked that it will expect the holders of the
judicial power to inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty." The sentence of death is justified
when the crime is enormous in proportion and the accused has committed multiple
murders of all members of his own family in a cruel manner.
In the instant case, the appellant (accused) killed his wife, three daughters aged
9, 6 and 4 years and son aged two and half years in the evening of December 9, 2005
by strangulation one by one and after committing the brutal act came out of his house
shouting that "I have killed the five bastards". The accused made an extra judicial
confession of his gruesome act before four prosecution witnesses and he was the only
person in the house besides the five victims of his ghastly act. The accused pleaded
the defence of drunkenness under Section 85 I.P.C.
Rejecting the defence plea, the Apex Court held that "merely because the
appellant claims to be in a state of drunkenness at the relevant point of time, that does
not in any way dilute the gravity of his offence because he killed five persons one
after another including his wife and four young children. The case squarely falls
under 'rarest of rare' cases and therefore, the sentence of death awarded to the
appellant by the Sessions Court, Nagpur and affirmed by the High Court needs no
interference." The Court reiterated that conviction can be based solely on
circumstantial evidence when the prosecution has proved beyond doubt that the chain
is complete and there is no infirmity or lacuna
1. AIR 1998 SC 1933.
2. AIR 2007 SC 697.
which could be oared by false defence or plea.548
In the case of Laxman Naik v. State of Orissa} it was conclusively proved on the
basis of circumstantial evidence that the accused committed rape on his brother's
daughter aged 7 years in a lonely place in forest and thereafter murdered her. The
evidence on record indicated how diabolically the accused had conceived of his plan
and brutally executed it, and such a calculated, cold-blooded and brutal murder of a
girl of a very tender age after committing rape on her would undoubtedly fall in the
category of rarest of rare case attracting no other punishment than the capital
punishment.
The Supreme Court in this case held that injuries caused on the person of the
548 See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840; Sharad Birdhichand v.
State of Maharashtra, AIR 1984 SC 1622 etc.
murdered child and the blood-soaked undergarments found near the body completed
the chain of evidence as not to leave any doubt about the sexual assault followed by
brutal, merciless, dastardly and monstrous murder which the appellant had
committed. The girl of the tender age of 7 years fell prey of the lust of the accused
"which sends shocking waves not to the judicial conscience but to everyone having
slightest sense of human values and particularly, to the blood relations and the
society at large." The Court therefore, upheld the sentence of death passed on the
accused (appellant) and the appeal was dismissed.
In a similar case of Amrit Singh v. State of Punjab,549 the appellant (accused) aged
31 was convicted for the offence of rape and murder under section 376 and 302 of
IPC and sentenced to death by the Additional Sessions Judge, Mansa which was
affirmed by the Punjab High Court. In appeal against this sentence, the Supreme
Court declined to treat the case as "rarest of rare" and held that the rape and murder
of the deceased 7/8 years girl was no doubt brutal but it could have been a
momentary lapse on the part of appellant (accused), seeing a lonely girl at a secluded
place. He had no pre-meditation for committing the offence. The offence may look to
be heinous but under no circumstances, it can be said to be a rarest of rare case. The
Court therefore, allowed the appeal to the extent that maximum sentence of rigorous
imprisonment for life be imposed instead of death sentence.
In this case the appellant on 3-11-2003 found the deceased girl Raj Preet Kaur
(Guddi) aged 7/8 years returning alone from the house of her classmate at about 5.30
p.m. He raped her in his cotton field and thereafter murdered her brutally and
covered the dead body with dry leaves. Injuries were also found on the deceased
girl's neck and mouth. The evidence that the accused was last seen with the deceased
girl was corroborative of his involvement in the brutal rape and murder of an
innocent helpless female child.
In Kulwinder Singh v. State of Punjab* the accused inflicted gandasi blows on the
neck of victims, Hardip Kaur and Joginder Kaur, who received serious injuries and
died. The evidence showed that the accused had entered the fodder-room of the
Haveli for committing rape upon Hardip Kaur and when she resisted, he strangulated
her by putting her chunni around. Since Joginder
Kaur was approaching the fodder-room seeing the accused malhandling Hardip, she
was obviously an eye-witness to the crime, hence accused struck blows on her neck
so that no witness is left to his offence. The incidence occurred on Aughst 4, 2002 at
2.30 p.m. and the F.I.R. was lodged immediately at 5 p.m. On the basis of medical
report and fingerprint of the accused the Session Court convicted him for the offence
under Section 300/302 and sentenced him to death by its judgment dated October 21,
2003. The High Court maintained the conviction but set aside the death sentence and
remitted the matter to the Sessions Judge to reconsider the quantum of sentence. The
appellant filed an appeal against this order of the High Court by way of special leave
to the Supreme Court.
The defence plea was that there were 14 injuries on the body of Hardip and 16
injuries on the body of Joginder Kaur and so many injuries could not possibly be
caused by a single person, i.e., accused. Hence there must have been more than one
person who attacked the victims. Rejecting the plea, the Court upheld the conviction
of the appellant under Section 302 IPC but reduced the sentence to life imprisonment
since it appeared to the Court that the crime was committed in a fit of passion and
does not come within the category of 'rarest of rare' cases.
549 AIR 2007 SC 132.

In a criminal appeal550 against the judgment rendered by a Division Bench of the

Rajasthan High Court at Jodhpur on February 11, 1998 to the Supreme Court by both
appellants and the respondents, the Apex Court was called upon to decide the
propriety of alteration of conviction of 5 accused from Section 302 read with
Sections 149, 148 and 341 of IPC to Section 304-1 read with Sections 149, 148 and
341, IPC. The accused were found guilty of committing murder by beating the
deceased with lathis and axes on a trifle issue of damage of crop by goats entering
into their fields. This had resulted into instantaneous death of the deceased. The High
Court found no grievous injuries having been caused on the body of the deceased,
altered the conviction of the accused under Section 302 to one of 304 Part I, IPC and
reduced the sentence to the period undergone (i.e. six years), but enhanced the amount
of fine from Rs. 2000/- to Rs. 10,000/- to be paid to the widow of the deceased as
compensation. The Supreme Court emphasising the principle of proportion between
crime and punishment held that "imposition of sentence without considering its effect
on the social order in many cases may be in reality a futile exercise." The Court
observed :
"The social impact of crime e.g. where it relates to offences against
women, dacoity, kidnapping, misappropriation of public money,
treason and other offences involving moral turpitude or moral
delinquency which have great impact on social order and public
interest, cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre sentences or
taking too sympathetic view merely on account of lapse of time in
respect of such offences will be result-wise counter productive in the
long run and against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the sentencing
system."
Allowing the appeals partly, the Court held that custodial sentence of six years
would serve the ends of justice although normally the sentence for conviction for
offence relatable to Sect. 304-1, IPC would be more. But this is a case which actually
falls under 304-11, IPC though there is no appeal on behalf of accused persons in this
regard. The enhanced fine must be paid within two months and default custodial
sentence will be two years' rigorous imprisonment.
In Union of India and others v. Devendra Nath,551 the accused was awarded death
sentence for having caused homicidal death of two army personnel and grievous
injuries to others in Court martial proceedings. The accused was tried for four
charges under section 9 of the Army Act and for the charges of murder (Section 302
of IPC) and attempt to murder. The Deputy Advocate General was of the view that
the evidence on record clearly established the guilt of the accused and this being a
rarest of rare case, he deserved the sentence of death. His sentence was confirmed by
the Judge Advocate General and also by the Central Government. On a writ
application filed in the High Court of Allahabad against this sentence, the Court held
that the conviction was well merited, but felt that the case did not fall within the
category of 'rarest of rare' case and therefore, directed the authorities to pass a fresh
order on the question of sentence.
The Central Government moved in appeal against this order of the High Court
to the Supreme Court. The Apex Court held that in the instant case, the High Court
550 Adu Ram v. Mukna & others, Criminal Appeal No. 646 & 647/1999 decided by the
Supreme Court on 08-10-2004.
551 2006 SCCL Com 27.
had not attempted to do the exercise of drawing a balance-sheet of aggravating and

mitigating circumstances of the case and had come to an abrupt conclusion about the
case being not covered by the 'rarest of rare' rule. The case was therefore, remitted to
the High Court to consider the matter of sentence afresh and award the appropriate
sentence. The Court ruled that while drawing a balance-sheet of aggravating and
mitigating circumstances, the mitigating circumstances should be accorded full
weightage before the option of award of death sentence is exercised. The
circumstances of the "offender" also require to be taken note of along with the
circumstances of the "crime".
In Bishnu Prasad Sinha v. State of Assam,552 the accused committed rape on a
minor girl who was sleeping with her family in waiting room of travel agency along
with co-accused who was a cleaner of another bus travel agency and caused her death
by striking two heavy blows of brick. He made a confession which was not retracted
throughout the trial and expressed repentence and remorse in his judicial confession.
The circumstantial evidence fully established the guilt of the accused. Moreover, he
had showed his remorse and repentence even in his statement under Section 313 of
the Code of Criminal Procedure. Therefore, the Supreme Court held that appellant
can be convicted only on the basis of the circumstantial evidence but ordinary, death
penalty should not be awarded.
Reiterating its earlier decision handed down in State of Rajasthan v. Kheraj
Ram,553 the Apex Court held as follows :—
"Life imprisonment is the rule and death sentence is an
exception. Death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and
provided the option to impose sentence of imprisonment for life
cannot be conscientiously exercised having regard the nature and
circumstances of the crime and all the relevant circumstances."554
The Court further stated that even otherwise, it cannot be said to be a 'rarest of
rare' case. Although the manner in which deceased girl was raped was brutal, but it
could have been momentary lapse on the part of appellant, seeing a lonely girl, at a
secluded place. He had no premeditation for committing the crime. The offence was
no doubt heinous but under no circumstances, it could be said to be a rarest of rare
case, hence death penalty is converted into life imprisonment.
In the case of Reddy Samath Kumar v. State of Andhra Pradesh,555 the accused who
was a medical practitioner (doctor) on 11/12 March 1998 caused the death of his
father-in-law, mother-in-law and three minor children by poisoning them injecting
Pan Curonium Bromide (called PAVULON). The accused doctor made his father-in-
law and mother-in-law and their three minor children believe that they were suffering
from AIDS when actually it was not so. He then managed to Idll them by giving
poisonous injection under the pretext of giving treatment in order to grab their
property. The prosecution established circumstantial evidence beyond all reasonable
doubts and therefore, the accused was sentenced to imprisonment for life by the trial
Court and it was affirmed by the High Court. In appeal, the Supreme Court noted that
the facts of the case had 'shocked the judicial conscience'. The gruesome murders
552 AIR 2007 SC 848.

553(2003) 8 SCC 224.
554 See also Machhi Singh v. State of Punjab, AIR 1983 SC 857; State of M.P. v. Munna Choube and
another, (2005) 2 SCC 710; Rony v. State of Maharashtra, (1998) 3 SCC 625 etc.
555 AIR 2005 SC 3478.
were perpetrated in cold blooded, pre-meditated and well organised manner with a
view to grab the property. Since the High Court had not issued notice for
enhancement of punishment to death sentence, the Apex Court held that looking to
the gravity and manner in which the murders were committed, "the ends of justice
would warrant that the appellant should be in jail in terms of section 57 of IPC and he
should not get the benefit of any remission either granted by the State or Central
Government on any auspicious festival.
In Rajbir alias Raju & Another v. State of Haryana,556 the accused husband was
found guilty of murdering his pregnant wife for demanding cash amount barely six
months after their marriage. He was held guilty of dowry death under Section 304-B
IPC by the trial court and the High Court reduced it to ten years RI. The other of the
accused was awarded two years RI by the Court.
On appeal against this order of the High Court, the Supreme Court expressed
surprise as to why the High Court had reduced the sentence of the accused
(Petitioner) from life imprisonment to that of 10 years RI particularly when it was
proved that he committed a barbaric and brutal murder as evident from the multiple
injuries caused to the deceased wife. The Apex Court referred
556 AIR 2011 SC 568.

to its earlier decision handed down in Satya Narayan Tiwari @ Jolly & Another v.
State of U.P.557 wherein it had shown serious concern in the matter of crimes against
women which needed to be awarded harsh punishment. The Court therefore, directed
the High Court to issue notice to the petitioner (Rajbir) that why his sentence be not
enhanced to life imprisonment as awarded by the lower court. The Court, however,
ordered the mother of the accused (Petitioner No 2) to be released on bail in view of
her advanced age of 80 years.
The Apex Court in this case further directed all the trial courts in India to
ordinarily add Section 302 to the charge of Section 304B of IPC, so that death
sentences can be imposed in such heinous and barbaric crimes against women.
In the case of Swamy Shraddananda alias Murli Manohar v. State of Karnataka,558
the appellant was convicted for the offence of murder under Section 302/201 I.P.C.
and was sentenced to death by the Sessions Court, Bangalore on 20th May, 2005
which was confirmed by the High Court of Karnataka on 19-9-2005. The appellant
came to the Supreme Court against the judgment of the High Court. The two Judge
Bench of the Apex Court unanimously upheld the conviction but differed on the
quantum of punishment. Katju, J., held that the appellant deserved nothing but the
death whereas S.B. Sinha, J., felt that the punishment of life imprisonment, rather
than death, would serve the ends of justice. He, however added that the appellant
would not be released from prison till the end of his life.
The facts of the case briefly stated were that the deceased victim belonged to a
high reputed and wealthy princely family holding vast property including a big
bungalow in Bangalore constructed over 38,000 Sq. ft. of land which she got in gift
from her parents. She was married to one Akbar Khaleeli, an Indian foreign service
official and had four daughters from him. She sought the services of the appellant to
handle her property disputes. Her husband was posted in Iran and she lived in her
bungalow in Bangalore. She divorced her husband in 1985 and married the appellant
in the hope of having a son from him. It was a registered marriage. Her four
daughters from previous husband were mostly living abroad. After marriage, she
appointed appellant as an attorney by a testamentary will and they held the properties
jointly. The daughters, however, maintained affection and love for their mother. By
the end of May 1991, the deceased victim (Shakereh) suddenly and mysteriously
disappeared. Her daughters made frequent enquires about their mother from the
appellant who once said that she has gone to Hyderabad, another time said she has
gone to Kutch to attend a marriage and always gave evasive replies which raised
doubt in the mind of the daughter. When she personally came to Bangalore and
enquired about ner mother, the appellant said she has gone to U.S.A. for treatment in
Roosevelt Hospital. When she contacted the hospital, they replied there was no such
patient in their record. She confronted the appellant and accused him of giving false
and evasive information. The appellant now told her that her mother has gone to
London and she wanted to keep her movements confidential. However, the appellant
stood totally exposed when the daughter of the deceased called on him in a hotel
room in Bombay and chanced to see the passport of her mother laying around. Now
she was sure that there was some foul play with her mother and therefore, she
registered a case against the appellant on 10th June, 1992.
Investigation revealed that the appellant had administered a heavy dose of
sleeping pills to the deceased and kept her alive in a wooden box which was put in a
557 2010 AIR SCW 7144; See also Sukhdev Singh v. State of Punjab Referred to in para 6 of AIR
2011 SC 568.
558 AIR 2008 SC 3040.
pit in the backyard of his bungalow in Bangalore. It was also found that the appellant
had submitted fabricated returns to Income Tax authorities in 1993 bearing forged
signatures of the deceased. He was althrough deposing as shrewd and cunning man
with no remorse for his gruesome murder.
It was because of the conflicting opinions of the aforesaid two-judge Bench,
that the matter came up before a larger Bench which felt that the case of the appellant
fell just short of rarest of rare case and therefore, the appellant should be awarded
sentence of imprisonment for rest of life and the prison Act does not confer on any
authority a power to commute or remit sentences. It only provides for regulation of
prisons and treatment of prisoners confined therein. There is no rule conferring an
indefeasable right on a prisoner sentenced to life imprisonment to an unconditional
release on the expiry of a particular period of time including remissions, nor a less
sentence can be substituted for a prisoner sentenced to rest of life. Imprisonment for
life implies imprisonment for whole of remaining life.
The Supreme Court in C. Muniappan & others v. State of Tamil Nadu,559 held that
criminal law requires strict adherence to. The rule of proportionality in sentence and
imposition of punishment keeping in mind its effect on society. The Court noted that
death sentence can be given in rarest of rare case if the "collective conscience" of a
community is so shocked that death penalty is the only alternative. The "rarest of the
rare case" rule applies where a convict would be a menace and threat to the
harmonious and peaceful existence. When accused deliberately indulges in a planned
crime (murder) without any provocation and meticulously executes it, the death
sentence may be the most appropriate punishment.
In the instant case, the three accused had become violent in a public
demonstration against a court verdict. They violated prohibitory order and prevented
free flow of traffic and burnt several buses which were carrying college girls,
resulting in three girls burnt to death and 20 others were seriously injured. The
accused were sentenced to death which was confirmed by the High Court. The Apex
Court maintained the death sentence of the accused. The court, however, reprimanded
the police for its inaction in dispersing the mob involved in 'Rasta Roko Andolari in the
middle of the busy road and for not promptly coming to the rescue of the innocent
girls who were trapped in the burning bus.
The Supreme Court in Priyadarshini Mattoo Rape case,560 held that where the court
feels some difficulty in making choice between the award of death sentence or life
imprisonment, the appropriate course would be to award lesser sentence while
choosing between the two punishments, both aggravating and
559(2010) 9 SCC 567; decided with D.K. Rajendran & others v. State of Tamil Nadu, Cri. Appeal No.
1632 of 2010 dated Aug. 30, 2010. However, in Rajinder's case, the sentences of the accused were
5.AIR 1997 SC 2766.
reduced to one already undergone and they were ordered to be released from the prison.
560(2010) 9 SCC 747.
mitigating circumstances should be weighed. In the instant case, the appellant

committed rape and murder of a hapless junior college LLB student for having
rebuffed his amorous overtures after causing her long harassment. He inflicted her
19 injuries after raping her. His acquittal by the trial court was reversed by the Delhi
High Court and he was sentenced to death. On appeal against this judgment of the
High Court, the Supreme Court commuted the sentence of death to one of life
imprisonment considering the mitigating circumstances that the appellant got
married after his acquittal by the trial court and a girl child was born consequent to
this marriage and that appellant's father died within one year of his conviction and
award of death sentence by the High Court. On the other hand, aggravating
circumstances in this case were that the accused (appellant) was the son of a very
senior police officer serving the State of J. & K. who was about to be posed as Add
Commissioner of Police, Delhi and there was possibility that this power might have
been misused in weakening the investigation and prosecution case. In court's
opinion, the mitigating circumstances outweighed the aggravating ones and
therefore, the appellant's death sentence deserved to be commuted to life
imprisonment.
Delay in execution of Death Sentence
A survey of available case-laws on death sentence would reveal that the
attention of the Supreme Court was focused on the question whether inordinate delay
in the execution of death penalty can be considered to entitle the convict to claim
commutation of the sentence to that of life imprisonment. In Triveniben v. State of
Gujarat,* the five Judges Bench of the Supreme Court overruled Vatheeswaran and
Javed Ahmed561 to the extent they purported to lay down the 'two years' delay rule, and
held that no fixed period of delay could be held to make the sentence of death
inexecutable. The Court, however, observed that it would consider such delay as an
important ground for commutation of the sentence.
In Madhu Mehta v. Union of India,562 the Supreme Court held that a delay of eight
years in the disposal of mercy petition would be sufficient to justify commutation of
death sentence to life imprisonment563 since right to speedy trial is implicit in Art. 21
of the Constitution which operated through all the stages of sentencing including
mercy petition to the President.
In State of U.P. v. Ramesh Prasad Misra,564 the Supreme Court reduced the death
sentence of the accused to one of imprisonment for life in view of long lapse of time
from the date of commission of crime. The incident had occurred on the intervening
night of September 26/27, 1985 in Karwi town of Banda district of U.P. The accused
was a practising advocate who had committed horrendous bed-room murder of his
28 year old wife whom he had married only 5 months ago. He was found guilty of
offence under Sections 300 and 498-A (i.e., dowry death) and his plea of alibi was
not established hence he was convicted on the basis of circumstantial evidence and
sentenced to death.
561 Supra.
562 (1989) Cri LJ 2321.
563 See also Daya Singh v. Union of India, AIR 1991 SC 1548 ; Shivaji ]ai Singh v. State
of Maharashtra, AIR 1983 SC 1155. Jumman Khan v. State of U.P., (1991) 1 SCC 752.
Mode of Execution of Death Sentence

Section 354(5) of the Code of Criminal Procedure, 1973 requires that when a
person is sentenced to death, the Judge in his sentencing order shall direct that the
condemned person be hanged by neck till he is dead. The constitutional validity of
this mode of execution of death sentence was challenged in Dina v. State of U.P,I565 on
the ground that it was violative of Art 21 of the Constitution being barbarous and
inhuman in nature. The Supreme Court, however, rejected the contention and held
that hanging the condemned person by neck till he is dead was perhaps the only
convenient and relatively less painful mode of executing the death sentence. The
issue was once again raised in Smt. Shashi Nayer v. Union of India566 but the Supreme
Court upheld the validity of 'hanging by neck until death' reiterating its earlier
decision in Dina's case.
An Overall view.
The pertinent issue which emerges from the foregoing discussion and the case
law is how far the present law relating to capital punishment answers the need of the
time and whether its scope needs to be extended, curtailed or it should be abolished
altogether. The proper approach to the problem, perhaps will be that capital
punishment must be retained for incorrigible and hardened criminals but its use
should be limited to 'rarest of rare cases'. Thus, the Courts may make use of death
sentence sparingly but its retention on the Statute Book seems necessary as a
penological expediency. Considered from this standpoint, the position as
contemplated by Section 354(3) read with Section 235(2) of the Code of Criminal
Procedure, 1973, appears to be sound inasmuch as it limits the use of capital
punishment to a minimum without, however, abolishing it altogether. The removal of
mandatory death sentence for murderers and allowing judicial discretion to commute
it to life imprisonment in suitable cases is perhaps the most appropriate approach to
the use of capital punishment. In view of the present deteriorating law and order
situation in India, total abolition of death sentence would mean giving a long rope to
dangerous offenders to commit murders and heinous crimes with impunity.
Of late, opinion is mobilising in favour of extending the scope of capital
punishment to economic offences such as profiteering, hoarding, smuggling,
blackmarketing and similar other anti-social act? which upset the solidarity of
society. Although Russia and other communist countries prescribe capital
punishment for such offences, the policy hardly seems expedient in context of Indian
society. In fact, forfeiture and confiscation of property or imposition of heavy fines
by way of penalty would perhaps be more effective punishment in such cases and the
revenue so collected may be utilised for the welfare of the community as a whole.
Such offenders may also be sentenced to compulsory community service so that their
potential may be utilized for the cause of nation.
Another pertinent question that needs consideration in regard to capital
punishment is whether it is for the court or the legislature to decide about the
retention or abolition of this sentence.3 Admittedly, legislatures represent the
565 AIR 1983 SC 1155.

566 AIR 1992 SC 395.
3. Emperor v. Dukhari, 33 CWN 1226.
public opinion and the wishes of the people are truly expressed through legislative
enactments. Further, it is an established rule of interpretation that the penal laws
must be construed strictly and their application should not be extended beyond the
scope of the provisions of law. However, so far the question of punishing the
offender is concerned, his personality, surroundings and circumstances which
actuated him to commit the offence must be taken into consideration. Obviously, it
is the Judge and not the legislator, who by virtue of his superior training, insight and
experience can best decide according to the settled principles of law as to what
punishment should be awarded to the accused in a particular case. The Judges have
readily at hand a systematic scheme of law to be applied to various offenders
thereby extending the offenders due protection against prejudices whatsoever. It
may therefore, be stated that judiciary is perhaps the only competent institution to
determine the cases of law violations and award of punishment to offenders. This
function of the Court cannot be effectively discharged by legislatures. At the most,
legislatures can formulate general policy for the guidance of Courts but they must
ultimately leave it for the Court to apply those principles to individual cases.
Before concluding, a word must be said about the execution of former Prime
Minister of Pakistan, Mr. Zulfiqar Ali Bhutto along with four others567 in the famous
Nawab Mohammad Ahmad murder case. The Amnesty International in its appeal to
Pakistan's President Zia-ul-Haq for commutation of death penalty imposed on Mr.
Bhutto stated :
"we regard death penalty to be cruel, inhuman and degrading
punishment and also because in a trial like Mr. Bhutto's conducted
in a tense political atmosphere there is risk of miscarriage of
justice."
The President of Pakistan, however, declined to accept the international
appeals for clemency and all the accused were executed. It is to be noted that the
four accused had confessed their guilt while late Mr. Bhutto maintained his
innocence.
Despite the Stockhom Declaration of 1977, which imposes upon the United
Nations the need to abolish death penalty, this sentence is frequently being used as
an instrument of repression against opposition, racial, ethnic, religious and under-
privileged group.568
The execution of the former President of Iraq Saddam Hussain on 30th
December, 2006 is yet another glaring illustration showing how this extreme penalty
is being used to wreck vengeance against a powerful opponent. He was hanged to
death in a most secret manner when people of Iraq were busy celebrating Bakrid and
Muslim devotees were on Haj pilgrimage to Mecca. Ironically, the countries like
U.K., Australia who are strongly opposed to death penalty, justified Saddam
Hussain's execution holding that he deserved that punishment for the crimes
committed by him against Iraqi people. The U.S. President, George Bush going a
step further called Saddam Hussain's execution as an "important milestone" on the
Iraqi political front. India, however, expressed its disappointment and considered
Saddam Hussain's execution as a regrettable event. It deserves condemnation on the
ground of humanity.
567 Mr. Bhutto was hanged to death in Ravalpindi Jail at 2-30 a.m. on 4th April, 1979
while four others convicted with him namely, Mian Mohd. Abbas, Safi Gulam Mustafa, Arshat
Iqbal and Rana Iftikhar Ahmad were hanged on 25th July, 1979.
568 1977 Cr LJ p. 74.
Conclusion
It may be reiterated that capital punishment is undoubtedly against the notions
of modem rehabilitative processes of treating the offenders. It does not offer an
opportunity to the offender to reform himself. That apart, on account of its
irreversible nature, many innocent persons may suffer irredeemable harm if they are
wrongly hanged. As a matter of policy, the act of taking another's life should never
be justified by the State except in extreme cases of dire necessity and self-
preservation in war.569 Therefore, it may be concluded that though capital punishment
is devoid of any practical utility yet its retention in the penal law seems expedient
keeping in view the present circumstances when the incidence of crime is on a
constant increase. Time is not yet ripe when complete abolition of capital punishment
can be strongly supported without endangering the social security. It is no
exaggeration to say that in the present time the retention of capital punishment seems
to be morally and legally justified. It serves as a reminder to everyone that in case of
unpardonable crime one has to forfeit his own right to life and survival.
It must also be noted that the essence of criminal jurisprudence has always been
to provide protection, as also to contrive measures against the fears both from within
and without, for the individuals and also for the social order itself. The criminal
jurisprudence while it provides protective devices through punitive sanctions, also
aims at securing better social order by insulating against the unwarranted acts
emanating from the individual. It is with this backdrop that the desirability or
otherwise of the capital punishment has to be judged. As a note of caution Shri S.
Venugopal Rao who chaired the session on capital punishment of International
Congress of Criminal Law,570 rightly pointed out that there is no objection to
according a humane treatment to the offender but this should not mean that the
victims be at the mercy of criminals who pose a danger to the society and deserve
treatment through deterrent and preventive measures. Therefore, there is a need for
searching out a viable alternative to deterrence, which has a vital protective function
in society.
At present, as many as 127 countries out" of 191 countries of the world have
retained death penalty but renovations are continuously being made by them in the
methods of execution571 so that the person on whom the sentence has been ordered
suffers minimum torture. The Amnesty International had started a global campaign in
1989 for the abolition of death sentence but it has not yet fully succeeded in its
mission though many countries have reopended favourably to its appeal and
abolished death penal from their criminal law. The Indian law in this regard,
however, seems to be satisfactory as the Supreme
Court in Allauddin Mian v. State of Bihar1 has stressed on the penological aspect of
death sentence and observed that provisions of Sections 354(3) and 235(2) of the
Code of Criminal Procedure, 1973, require the sentencing Judge to state reasons for
awarding death sentence and giving an opportunity to the condemned person to be
heard on the point of sentence, satisfy the rule of natural justice and fair play. This
enables the sentencing Court to endeavour to see that all the relevant facts and
569 Kethaleen J. Smith : "A Cure to Crime" Gerald Duckworth Ltd., London (1964), p.
57.
570 The International Congress of Criminal Law was held in New Delhi on 8th Feb., 1983.
571The Law Commission of India in its 45th Report on capital punishment suggested the use of
lethal injection for execution as it is simplest, decent and ensures instantaneous and painless
death.
circumstances which have bearing on the question of sentence are brought on record
and no injustice is caused to the accused. In the instant case, the Apex Court noted
that the trial Judge had not attached sufficient importance to mandatory requirements
of the above provisions and the High Court confirmed the death sentence without
having sufficient material placed before it on record to know about the antecedents
of the accused, his socio-economic conditions and impact of crime etc. which
rendered the rationale of the judgment doubtful.
The Indian sentencing law contains certain admirable principles which the
Judges who have responsibility for passing sentence, should bear in mind while
finalising the sentence of the accused. The objectives of sentences and the range of
sentences have widened over the years and this calls for properly marshalled
observation of the results of similar sentences imposed in similar circumstances in
the past. The sentencing courts should therefore, keep themselves abreast of the
penological developments, specially when the choice is between 'death' or 'life
imprisonment'.
In the ultimate analysis, it will be seen that considered from the angle of social
justice and protection of society from hard-core criminals, death sentence is not
unreasonable or unwarranted or obsolete type of punishment. The noted Italian
criminologist Garofalo, while disapproving the abolition of death sentence from the
statute Book commented, "when State abolishes the sentence of death, it authorises
murderer and says to the criminal 'the risk you run in killing a human being is a
change of abode, the necessity of spending your days in my house (i.e. prison) instead
of your own.' Will it be proper to do so?
The death penalty is no doubt unconstitutional if imposed arbitrarily,
capriciously, unreasonably, discriminatorily, freakishly or wantonly, but if it is
administered rationally, objectively and judiciously, it will enhance people's
confidence in criminal justice system.
Chapter XVII
The Police System
P olice as a functionery of criminal justice system, has to play a crucial role in

maintenance of peace and enforcement of law and order within its territorial
jurisdiction. Its primary duty is to safeguard the lives and property of the people and
protect them against violence, intimidation, oppression and disorder. Crime
prevention certainly involves the services of certain law-enforcement agencies to
detect and investigate crimes and apprehend criminals for prosecution in law courts.
Usually the transgressions of law are brought to the attention of the police which
prepares the grounds for future criminal investigation. Therefore, the charges against
accused having been framed, his trial begins in the appropriate criminal court. The
Court records the evidence and decides whether the charges against the accused are
proved or not. In case the guilt is proved, the accused is convicted by the Court and
sent to prison or some correctional institution to undergo a term of sentence. Thus a
number of functional agencies, notably, the police, the courts and the prisons or after-
care institutions, are involved in the administration of criminal justice. To these may
be added the institutions of probation and parole which seek to bring about
reformation of offenders particularly, the young and juvenile delinquents. Before
entering into a detailed discussion about the functioning of each of these law-
enforcing agencies, it must be stated that all criminal trials do not necessarily involve
the services of all of these agencies. In several cases the offender is discharged by the
police after preliminary investigation while in others, prosecution against the accused
is dropped by the court at some stage or he is finally acquitted of the charge. Again,
even after conviction many offenders are released on probation and are not required
to be sent to prison or a correctional institution. Those who are sent to prison may
also be granted parole. It is thus evident that police has to play a dominant role in the
administration of criminal justice.
Origin of Police
The police is primarily concerned with the maintenance of law and order and
security of person and property of individuals. Of late, police duties have increased
enormously and are becoming more and more diversified. The modem police must
protect the public against physical dangers, rescue lives, regulate traffic and preserve
law and order in the streets and public places. It also has a definite duty with regard
to the prevention of juvenile delinquency and atrocities against women, children and
weaker sections of the society.
Any discussion on 'police' will remain incomplete without a word about the
historical origin and evolution of this institution. Originally, the word 'police' was
used in a wider sense to connote the management of internal
The Police System 339
economy and the enforcement of government regulations in a particular

country. With the passage of time, the term 'police' began to be used in a much
narrower sense to connote an agency of the State to maintain law and order and
enforce the regulations of the criminal procedure law.
The word 'police' is derived from the Greek word politeia or its latin equivalent
politia. The term politia stands for the 'State' or 'administration'. In the present
context, the term 'police' connotes a body of civil servants whose primary duties are
preservation of order, prevention and detection of crimes and enforcement of law. As
pointed out by Ernest Fround, police functions generally relate to promoting public
welfare by restraining and regulating the use of property and liberty of persons.572
Police force has always been an indispensible appendage of State organisation
in almost all the civil societies of the world. Only the persons of proven ability and
those having thorough knowledge of local region and its people were recruited in the
police force so that they could tackle the problem of law enforcement efficiently
However, with the progress of civilization and development of knowledge, the
dimensions of police functions have extended beyond limits. Now it has assumed the
role of a social service organisation in the modem welfare states and has no longer
remained a mere watch-dog agency.
Development of Police Organisation :
The beginning of civil protection against crime and disorder in England came
with the promulgation of the Edict West Minster in 1285 by King Edward I. Under
the system, local groups of property owners numbering about a hundred each were
responsible for maintenance of peace in their district. This system prevailed in Great
Britain for centuries. However, the industrial revolution of the eighteenth century
witnessed a considerable increase in crimes of violence in England. Therefore, a
police force of 126 constables was set up by the Middlsex Justice Act, to arrest the
growing incidence of crime and disorder.
Thereafter, a regular system of constabulary was, established in England by the
Act of the British Parliament passed in 1787 for the maintenance of peace and
tranquillity in Ireland. These constables were responsible for enforcement of law and
order in boroughs and towns. With the advance of time, the complexities of life
multiplied due to the impact of industrialisation and urbanisation. Consequently, the
existing strength of the constabulary proved inadequate for the maintenance of law
and order. Therefore, Sir Robert Peel, the then Home Secretary of England pleaded for
a change in the existing system of constabulary. This led to the passing of
Metropolitan Police Act, 1829, which provided for a separate police force for
Metropolitan city of London. Similar police force was introduced throughout the
United Kingdom in subsequent years. The constables working in the police were
popularly called "Peelers" after the name of Sir Robert Peel who pioneered this
scheme. Later on they came to be known as 'Bobbies'.
The first two Commissioners of Robert Peel's London Metropolitan Police
made ceaseless efferts to raise a police force which was committed to eschew
violenc. The results were commendable as it helped in a general sense of
orderliness and respect for law among the British people.
One of the important developments in British Police system was the
introduction of rural police force. The rural police system in Britain was an outcome
572 Ernest Fround : The Police, Policy And Constitutional Rights, p. 6.

of historical development. The rural beat consisted of eight villages or hamlets with a
population of about 2000 persons. Rural police mostly dealt with rural, agricultural
and live-stock matters. In order to perform its duties efficiently, it had to maintain
liaison with the various government departments and also agricultural and veterinary
officials. Though a policeman was supposed to be on duty day and night, he had to
perform eight hours beat patrol, which could be continuous or with an interval in
between two-periods. He also had to do night patrolling to keep a watch against
prevention of crime.
On the whole, it can be said that in United Kingdom the police enjoyed public
support and respect and there were very few occasions of lethal use of force by the
policemen. The police personnel were well trained and equipped with latest gadgets
and weapons to tackle the problem of crime and criminals efficiently. With the
subsequent reforms and modernisation of British Police force, it now ranks as one of
the most efficient police organisation in the world.
America.
Before United States came under the influence of the Britain, the civilians
performed the function of night-watchman by rotation with a view to protecting the
society from crimes and criminals. This watch and ward arrangement proved
effective to control growing incidence of crime and disorder in rapidly expanding
cities. Consequently, a regular police force was established in New York in 1844. A
regular police force was, however, set up in America by the Dougan Charter of 1886.
The adoption of regular police in American cities did not prove very useful because
of extremely low wages offered to policemen. An inclination towards violence was
the main requirement for entry into the police force. The new police therefore,
became pawns in the spoils system and shared in general corruption prevailing in the
local politics.573
The modem police in U.S.A. is vested with the authority of using legitimate and
justified force against the citizens. The mandate of police to use force to curb
violence raises a key issue that the police themselves should not indulge in
unnecessary violence or excessive use of force. However, it is generally believed that
American police cannot allow a challenge to go unmet as they consider 'backing
down' as cowardly.574 The major police problem in U.S.A. is distrust and suspicion of
police which separates cops from the community. However, realising the need for
greater police-public participation for the maintenance of law and order and
tranquillity in the society, strenuous efforts are being made in US to bring about
attitudinal change in the police functioning.
Police Force in India.
Police force has been in existence in India in one form or another from the very
ancient times. There are references to the existence of police system in epics, namely,
Mahabharata and Ramayana. The great ancient law-giver Manu also emphasised the
need of police force for maintenance of law and order. According to him, police
functions could be entrusted to only those who were well acquainted with the local
people and were dedicated to the cause of protection of society against law violators.
He also refers to the secret intelligence practised in his time for the prevention and
detection of crimes.
573 Ernest Fround : The Police, Policy And Constitutional Rights, p. 6.

574 Shankar Sen : Police Today, p. 26.
The ancient history of India further reveals that there was a well organised
police force during the reigns of ancient Hindu rulers.575 The Gupta dynasty in ancient
India was particularly known for its excellent law and order situation through a well-
organised system of police. The chief of the police force was called
"Mahadandadhikari'. He had a number of subordinate officers called 'Dandadhikari' to
assist him. Later on, during the reign of Harshavardhan, these functions were
discharged by the officials called ‘SandiV Chowrodhamik and Dandapashik who were
responsible for maintenance of law and order in districts, towns and villages.576 The
judicial officer was called Mimansaka whose main function was to decide upon the
guilt or innocence of the offender and award appropriate punishment if the charge
was proved against the accused. Deterrent penal provisions kept the law and order
situation well under control. There was a separate branch of detectives working
under the police establishment called the Guptachars.
The indigenous system of police in India was organised on the basis of
collective responsibility of the village community. The law and order in the village
was maintained through the village headman who was assisted by one or more
village watchmen. Besides keeping watch in the village, these watchmen had to
report to the headman the arrival and departure of all strangers and suspicious
persons. If a theft was committed in the village, the headman had to detect the
thieyes and recover stolen property, and in case he failed to do so, he had to make up
the loss as far as his means permitted and the balance was recovered from the
villagers. At times, payments were made to the leaders of the plundering tribes to
prevent depredations by them.577
The Moghul rulers in India also had a well organised police force for
maintaining law and order in society. This system was, however, different from the
earlier one. The police official called the 'Fauzdar' was incharge of the entire police
force with a number of subordinate officials called 'Darogas' or 'Kotwals' working
under him. The policeman called the 'Sipahi' was the official of the lowest rank in the
police constabulary of the Moghuls. The detective branch of the police was called
Khuphia which assisted the police in criminal investigations. The chief police
administrator of the province was called 'Subedar' or Nizam.
During the closing years of Moghul empire, the military exploits of the
emperors put the police administration into oblivion, and the rulers had to pay
heavily for this neglect.578 The police system during the Moghul period was
undoubtedly suited to the needs of a simple and homogenous agricultural community
but it could not withstand the strains of political disorder and
575 It is rather unforunate that Fahien and Hieuen Tsang made no mention of police in their
travelogues.
576 Ratibandhu Nahar (Dr.) : Prachin Bharat Ka Itihas Chapter on Harshavardhan.
577 Vardachariar S. : Hindu Judicial System (1946) p. 94.
578 Sarkar J.N. : Mughal Administration (3rd ed.) p. 92.

therefore, with the decline of Moghul Empire, the system of police administration
also collapsed. Consequently, extortion and oppression became the rule of the day
and the zamindars, the headman and watchmen of the villages committed crimes and
gave shelter to criminals with a view to sharing booty. The rule to restore the stolen
property or to make good the loss was no longer observed. Even the highest officials
indulged in corrupt practices and the tyrannical rule resulted in repression of the
people during the last days of Moghul Empire in India.
The British Government in India retained the system of policing prevailing in
each Province with modifications. According to the Regulations of 1816, village
headmen were made ex officio heads of police also. They apprehended offenders and
forwarded them to District authorities. In petty cases, however, they themselves dealt
with the criminals. The Police Commission of 1860 recommended continuance of
the prevailing system of rural policing with minor changes. The other
recommendations of the Commission were as follows :
1. The police functions were to be entrusted to civil constabulary separating
them completely from the military police ;
2. The civil police administration was to be headed by an Inspector General
of Police for each Province ;
3. The Inspector General would be responsible to the Provincial
Government whereas the Superintendent of Police would be responsible
to the Collector of tire district.
4. The village police were to be under the supervisory control of the
Superintendent of Police.
The Indian Police Act, 1861, an aftermath of the Indian mutiny of 1857, was
enacted to "reorganise the police and to make it more effective instrument for the
prevention and detection of crime" as laid down in the preamable of the Act. Certain
provisions to contain public nuisance such as controlling of traffic, prevention of
cruelty to animals and health hazards, drunkenness etc., were incorporated in the
Act.579
The Government of Lord Curzon appointed another Commission called the
Police Commission of 1902 to suggest measures for reform in police working.
Surprisingly, the Commission instead of suggesting any measures for reform in the
existing rural police highly commended the prevailing set-up. According to the
Commission, "it was impossible to carry on the police administration only by regular
police and it was essential to secure the aid of village community through the agency
of Chaukidars. Any other alternative of employing regular policemen at villages could
be too expensive.
The Police Act, 1861 was fairly comprehensive and almost half of it dealt with
matters such as police powers with regard to public assemblies, punishment for
certain kinds of offences on road, and the definitions of important legal terms used in
the Act. However, the Act did not conceive the police force as a service organisation
and no structural changes were introduced in the police administration under the Act.
The Act was applicable only to the British India and it did not extend to independent
princely States where the age-old police organisation still continued to function.
Consequent to the Indian Independence in 1947, the colonial police set up was
hardly suited to the radical changes in the Indian society but ironically, the same set
up with little modifications here and there, still continues despite more than half a
579 D.H. Bailey : The Police And Political Developments in India, p. 36.
1. Secs. 23, 24 and 30 of the Police Act, 1861.

century after the end of the colonial rule in this county. As rightly observed by D.H.
Baileythe Indian police system which is developed on the basis of the Police Act,
1861, has three basic characteristics :—
(i) the police force is organised, maintained and directed by several States of
Indian Union ;
(ii) the Indian police system is horizontally stratified like military forces
organised into different cadres ; and
(iii) the police in each State are divided vertically into armed and unarmed
branches.
Despite the new democratic, secular, socialistic, welfare and humanitarian
values vouched for in the Constitution, the Indian police, by and large, follows the
philosophy of para-militarism associated with the mechanism of awe, threat and
coercion. In other words, the democratic philosophy of the Constitution hardly gets
reflected in the organisation of Indian police. The police and society have drifted
apart from each other thus weakening the sound foundations on which alone can be
built an efficient and competent police system.580
The Constitution of India provides that 'Police' is a 'State subject'.581 It is
therefore, for the States to maintain their own police force for maintaining peace and
security within their respective territorial jurisdictions. There are, however, certain
situations which authorise the Centre to intervene in the law and order problems of
the State because the Centre is under a duty to protect the States from internal
disturbances.582 Besides the State Police Force, there are certain special police
establishments such as the Border Security Force, the Railway Security Force, the
Central Reserve Police Force, etc., which assist the general police in performing
their functions.583 There is yet another category of police wing called the 'traffic
police' whose duty is to control the road and vehicular traffic and deal with the cases
of 'traffic-law' violations. A new central force called the Central Industrial Security
Force was set up from March 10, 1969. It was initially started in Durgapur Steel
Plant and has now been inducted in almost all the major public sector industries in
India.
Modem police is primarily concerned with detection and investigation of crime
and apprehending criminals by making arrests. They are thus concerned with the
protection of society against crimes and safeguarding the person and property of the
people. The police also deal with juvenile delinquents and enforcement of a variety
of Acts584 and regulations such as licensing, sanitation, civil defence, etc. With a
view to performing their duties efficiently the police has to associate themselves
with public and seek latter's co-operation in prosecuting the offenders.
The transformation of India from a police State into a welfare State after the
Indian independence has brought about a radical change in the activities of the
police. Today, India is passing through an age of political, economic and social
580 The Indian Police Journal Vol. XXVIII, No. 3 March, 1982.
581 The Constitution of India : Distribution of Legislative Powers between the Centre
and the State, List 2 Entry 2.
582 Article 355 of the Constitution of India.
583 The Home Guards and S.A.F. also constitute a part of the police establishment.
584 The Acts are the Opium Act, the Excise Act, the Prohibition Act, the Customs Act, the
Gambling Act, the Immoral Traffic Prevention Act, the Prevention of Corruption Act. Motor
Vehicles Act, Arms Act, the Explosive Substance Act, POTA etc. POTA has now been replaced
by the Unlawful Activities Prevention (Amendment) Act, 2004.

modernization since the police has to spend a good deal of its time and effort in
working with the people, the society's expectations from this organisation have been
steadily rising. As a result of this, the police has to assume a new role in the changed
scenario.
The police which was identified as a law and order maintaining machinery of
the State in earlier times is now viewed as a conscience keeper of the society. In
modern time, when the State has undertaken the task of providing for the welfare of
the community, the role of police in preserving and protecting the very basic needs
of human survival and social intercourse becomes vital.
Despite a radical change in the role and functions of police during the last five
decades of Indian independence, it is rather unfortunate that it still reflects in its
edifice the British colonial philosophy and this historical background has always
deprived the police from getting a high status as its counterparts possess in the
western countries, where police is a 'friend' and without a sympathetic police officer,
no other agency can ensure criminal justice to the law abiding citizens against the
law-breakers.
In the backdrop of a comprehensive sociological, technological, economic,
political and psychological change now underway in India, the values and ethics of
police must also change so that it does not become an out-model because of the
rapidity of social change. Accordingly, the police personnel have to play the role of
initiators and agents of social change. As of now, though there has been a lot of talk
about the Indian police having emerged as a social service organisation in recent
years but the fact remains that there has been no significant change in the people's
perception about the police image and tend to avoid or shun any contact with the
police as far as possible.
The Police set-up
The hierarchy of police officials working in the State police force includes,
Director-General of Police, the Inspector-General of Police, Deputy Inspector
General of Police, Superintendent of Police, Deputy Superintendent of Police, Circle
Inspectors, Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and Recruit
Constables, etc. For the sake of administrative convenience, there may be one or
more Additional Superintendents of Police and Deputy Superintendents of Police.
The Superintendent of Police is incharge of the entire police force in the district and
is responsible to the District Magistrate so far law and order problem is concerned.
However, in metropolitan cities of Bombay, Calcutta, Madras, Hyderabad etc., the
powers of Superintendent of Police and those of District Magistrate are combined in
one single official called the Police Commissioner.
The Constitution confers exclusive power on the States to control and regulate
the functioning of the police as the maintenance of public order and police, including
the railway and village police, are State subjects.
The Central Government is concerned only with the administration 'of

Central Police Reserve Force, the Border Security Force and the Central
Industrial Security Force as also the Central Bureau of Intelligence &
Investigation.
Police Organisation Under the State Government
Headquarters Field Commissionerate

Establishment Establishment System
DGP DGP Jt. CP Jt. CP Jt. CP
(Stat (Admn.) L & 0) (Crime
I )
e)
ADGP ADGP ADGP (Law 4 Actdl. D*CP -Regional
(HR) (Personnel) Order) IGP
CP (HQ)
IG IG (Estab- (Zon
IG (AP) -Traffic
(HR) lishment) e)
(STF)
V X i -SB-1
DIG IG IG Dy. IGP
(HR) (Adm) (Crime) (Range) -Operation
X
IG SSP/SP
Additional
(Personnel) District Addl.
S.P. (Crime)
I CP
ASP/DySP (Crime)
(Sb. Divn.)
1
Cl
(Circle)
y
lnspector/S.iyA.S.I.
(Police Station)
Head Constable
(Police Station)
Constable
D([p (Police station)
Detention
DCP :P DCP
Eco-Offence Narcotics Preventive
■ACP ACP
Narcotics ACP (SR) -
Property
ACP (CR) -
offences .ACP
Organised ACP/ (NER) -
Crimes
ACP (NWR) -
■ACP
(Tech. Unit)
1-ACP GB ACP (HQ)
I-ACP ST •ACP (Adm.)
LACP
(Juvenile Unit)

Police Organisation under Central Government
Central Para-Military ions Union

Forces Territory
|— BPR & D (Bureau of Police Force
• Assam Rifles Police Research &
Development) lip
- C.B.I. (Central Bureau of
[ __ BSF (Border Investigation)
Security Force)
-DCPW (Directorate of Co-
!—CRPF (Central ordination, Police Wireless)
Resen/e Police Force)
|— CISF (Central LIB

Industrial Security Force) (Intelligence Bureau)
| ----- ITBP (Indo-Tibetan -NCRB (National Crime

Border Police) Record Bureau)
-NSG (National Security - NICSF (National Institute of

Guard) Criminology & Forensic Sc.)
Unarmed
Police -NPA
Organisat (National Police Academy)
SSP SP
DIG -PHQ -CID LSDPO
(Sub-Divisional -City
Police Officer)
I—Traffic
-Provisioning &
and
MT Section
kPCR (Police Control Security
(—Training &
Room)
Modernistic -Lines
L Crime Branch
-Police Hospital
-Home Guards
Crime
L Economic Offences Wing
Though the Constitution
of India enumerates police as a State subject in the List, it includes a long list of allied
and quasi-police subjects in the Union List. For example preventive detention, arms,
ammunition, explosives, extradition, pass-port etc. are the sole responsibility of the
Central Government. It also determines the selection and service conditions of all India
Police Services. The selection and conditions of service of lower ranks is within the
power of the State Government.

Police Commissioners
In 1981 the National Police Commission comprising eminent thinkers and
administrators of the country as its members after ascertaining the views of the State
study groups and other popular forums recommended that in large cities with
population of ten lakhs and above and even in places where there may be special
reasons like speedy organization, industrialization etc, the system of Police
Commissioners as it existed in Bombay, Calcutta, Delhi, Madras, Nagpur, Pune,
Hyderabad, Ahmedabad, and Bangalore should be introduced. Thereupon, a number
of States585 have introduced the Police Commissioner system for better and effective
maintenance of law and order, prevention and detection of crimes and regulation of
traffic. The working of Police Commissioner system in Madras, Bombay, Calcutta
and Delhi for the past several decades has shown that functional autonomy leads to
prompt and coordinated police action whereas the earlier duality of control by
District Magistrate and Superintendent of Police adversely affected the general law
and order condition of the States. In large urban areas, several problems arising out
of social tensions, greater opportunities for occurence of crime and frequent
spontaneous explosion of law and order situations call for an extremely quick
response from the police at the operational level and prompt directions from the
superior levels. This can be achieved only when the police are organised in a unitary
chain of command which embraces the two basic functions of decision making and
implementation.
In the Police Commissioner system, a senior experienced and a mature police
officer is directly incharge of policing and has complete authority over his force and
is functionally autonomous. He is directly accountable to the Government. Under the
system, the public has not to run to two different authorities i.e. District Magistrate
and Superintendent of Police, to process their application for licences, permits etc.
This avoids delay and inconvenience to
public.
The major hurdle in appointment of Police Commissioners is perhaps the opposition
from the so called IAS lobby which apprehends that such appointments would result
into deprivation of their magistrial power which would be a great blow to their
prestige and authority. But this apprehension seems to be rather misconceived as it
will enable the police administration to take on-the-spot decisions without having to
wait for the orders from the District Magistrate who may or may not be readily
available at the time when the situation is tense and wan', ts prompt action. The
conferment of magisterial powers on Police Commissioner brings efficiency in
prevention and detection of crime and maintenance of law and order in major cities.
The Women Police
After the Indian Independence, women police have also been recruited in
the police establishment from the. year 1947. They mainly deal with the offences
relating to juveniles and women delinquents. Women police were introduced in United
Kingdom for the first time in 1917, when a woman was recruited as a civil police
official in the C.I.D. department. The Indian women police perform the functions of
escorting women offenders from one place to another or arrest and apprehend them.
They also conduct search and seizures in case of women delinquents and juvenile
offenders. It is also a part of their duty to maintain order and discipline in the fairs,
585 The States of Maharashtra and Bihar have adopted the system. It also operates at Surat,
Rajkot, Vadodara, Amravati, Mysore, Madurai Vishakhapatnam etc. Though the State of
Madhya Pradesh gave, approval for the appointment of Police Commissioner for the cities of
Indore and Bhopal in May 2001, but scheme still remains to be implemented.
functions and gatherings exclusively meant for women folk. The services of women
police are frequently utilised for helping the pardanashin ladies in obtaining passports,
etc. The emanidpation of women and their involvement in outdoor activities for the
sake of employment, education or social work has necessitated strengthening of this
wing of police to tackle women and juvenile problems. More recently, the dowry
deaths and bride-burning incidents in India have necessitated women police to gear up
its investigative machinery to suppress these crimes. The women police mostly deal
with cases of domestic squables, wife beating, eye-teasing and dowry harrassment.
Several States in India have set-up women companies in their Police Force to cope up
with the crime problems relating to women and children.
It is significant to note that India has the credit of setting up the first women
police station in the world. It was set up at Calicut in the State of Kerala on October
27, 1973. Thereafter, the Mahila police stations (Thanas) were established in Madhya
Pradesh in 1987 and the States of Rajasthan and Jammu and Kashmir have set up
women police station in 1990. The Government of Madhya Pradesh has set up nine
women police stations586 which are exclusively manned by the women police so that
incidents of atrocities against women could be reduced and women get ample
opportunities to register their complaints to the women police officials posted at these
stations without fear and hesitation.
With the opening of Mahila police stations, people especially women, feel their
complaint will be dealt with faster and that they will get prompt relief. However, non-
functioning of the Mahila police stations during night hours is a cause of
inconvenience for the genuine complainants as they have to take their complaints to
man-manned police station or have to wait till next day morning.
The Central Reserve Police Force has also raised a separate women's battalion in
an endeavour to create a force of female police to be deployed in specific situations.
As reported by the National Crime Records Bureau in Crime in India,
2005, among the States, the maximum strength of women civil police existed in Tamil
Nadu (7,980) followed by Maharashtra (7,283), Karnataka (3,112), Uttar Pradesh
(2,128), Kerala (2,018), Madhya Pradesh (1,995), Gujarat (1,632), Punjab (1,515),
Andhra Pradesh (1,393), West Bengal (1,318) and Rajasthan (1,250). The remaining
States had a strength of less than one thousand. Among the Union
Territories, Delhi which is now a State, had the largest contingent of women civil
police with a strength of 2,027. There are, however, no women police in Mizoram and
Daman & Diu.
The Woman Armed Police is in existence only in thirteen States/UT's587 with a
total strength of 3,418 women police taken together. The ratio of Women Armed
Police to Women Civil Police is 1 : 12.
Home Guard Police
The post-independence era in India witnessed a radical change in the socio-
political conditions of the country. As a result of these changes, an auxiliary police
establishment was needed to help the regular police in times of need. Therefore, a new
police wing called the Home Guard Police was established to assist the police in times
586 The Women Police Station at Bhopal was started on Oct. 10 1987 at Gwalior on Oct. 19, at Indore
on Dec. 4 and at Raipur and Bilaspur (now in Chhatisgarh State) in 1988. Presently, there are in all
nine Women Police Thanas functioning independently in the State of Madhya Pradesh (vide report
of police conference held at Bhopal in May 2004).
587 These States are, Assam, Chattisgarh, Goa, Himachal Pradesh, Jammu and Kashmir,
Jharkhand, Karnataka, Nagaland, Tamil Nadu, Uttar Pradesh, Andaman and Nicobar Islands,
Delhi and Pondicherry.
of flood, famine or other calamities. The services of Home Guards are utilised in times
of emergency for helping the police to restore law and order. Both men and women
between the age group of 16 to 40 years can be recruited as Home Guards. They are
imparted basic training in physical exercises, drill and gun-firing. Besides, they are
also trained in dvil defence, first-aid and fire-fighting devices. A few selected Home
Guards are also trained in map-reading, field craft and wireless transmission. There are
separate training programmes for the Home Guards of rural and urban areas at district
level. After completion of their training the Home Guard recruits are supposed to live
in groups in specially arranged camps where they take practical training in different
jobs such as protection of public utility survices, relief work in famine, flood or
disease affected areas etc.
It must, however, be noted that the Home Guard establishment is essentially a
voluntary, service organisation. There is a Chief Commandant General of Home
Guards in each State. The entire organisation is divided into divisions, companies and
platoons. They have a prescribed uniform and badges.
Preparatory Police Training Programme
Crime investigation being the primary and major responsibility of police
organisation, it has to collect facts, evidences, witnesses and other cognate materials
which influence the process of truth searching in the establishment of guilt or crime
complicity therein. The police being the first to arrive on the scene of crime, it has to
play a crucial role in the area of criminal justice administration. It is therefore,
imperative to provide an exhaustive preparatory education to all the prospective
entrants to police service. Truly speaking, modem police must be a law enforcer and a
lawyer, a sdentist in a whole range of physical sdences, a psycologists a sodal worker
well versed in human relations, an expert marriage counsellor, a youth adviser, an
athletic and also a public servant. These are but a few of many skills a policeman must
personally possess and many of them do possess them to a degree of excellence.588
In order to achieve this objective it has been suggested that a pre-entry
professional education for policemen and policewomen be organised by the
Department of Public Administration. It should be at two levels, namely :—
1. A two years certificate course after 10 plus 2 or equivalent examination.
2. A Degree course in police administration. The certificate course should
cover, inter alia, elementary knowledge about Indian Constitution, concept
of rule of law, general administration, police administration, problems of
law and order, security, causes, prevention and detection of crime, basic
penal laws, first aid, N.C.C., fire fighting devices, motor driving, cycling,
swimming etc. The degree course should comprise detailed knowledge
about the above plus an intensive study of criminology, victimology
juvenile delinquency, forensic science and modem techniques of crime
prevention and detection.
Police all over the world today is increasingly making use of the scientific and
technological developments in the field of investigation. Improvements in
communication, electronics, forensic science and medicine have come as a great aid to
the professional police in tackling crime. It hardly needs to be emphasised that modem
crime and methods of criminals are getting highly sophisticated and better organised,
and hence for tackling these, the police force should constantly up-date their training
programmes, equipments and methodology. Adequate training in forensic science and
computer technology to police personnel can be greatly helpful in speedy investigation
588 The Indian Police Journal Vol. XXX, No. 2, October-November 1985, p. 2.
of crime and criminals.

It would be pertinent to mention here that more recently the Central Detective
Training School at Calcutta has introduced the science of hypnosis as a new subject in
the curriculum for the probationer Police and Army officers. It is a science (and not
magic) by which subconscious mind is activated whereby it can be known as to what is
going on in another man's mind. Thus it is a scientific method of interrogating suspects
during investigation. This new technique is useful in exacting from the witness a
factual description of the offence and thus it provides important clues for detection of
crime. However, the information so collected cannot be used as a piece of evidence.
The Problems of Police
The spurt of socio-economic activities in India after Independence has brought
about revolutionary changes in the pa tem of Indian society. In the modem age of
economic activities and political awakening, the police have to perform arduous task of
law enforcement and preservation of peace with utmost care and caution. Its main
purpose is to protect the innocent from the depredation of criminals. This involves two
main tasks viz., to act as the watch and ward to prevent crime and to chase out
criminals who have committed crime and bring them before a court of law for trial and
punishment. The criminals always try to outsmart the police and the police makes
efforts to find out the culprit by using scientific means. In this process the police are
confronted with a number of problems.
Firstly, the problems faced by police during investigation render their job
difficult, particularly because of lack of public cooperation and support. People are
generally not willing to testify against the offender due to risk of threats and violence
and tiresome criminal law procedure.
Secondly, people are most unwilling to help police in crime detection and
apprehending the offender due to fear of possible harassment at the instance of police
officials. In India, Police has a very low profile in the eyes of public and there is a
general distrust for them.
Thirdly, the lack of sense of social responsibility among people is also one of the
reasons for their apathy and callousness in not coming forward to help the police. Even
in serious accident cases the victim is not immediately removed to hospital until the
arrival of police on the spot.
Fourthly, the recent criminalisation of politicians provides undesirable protection
to professional offenders and all sorts of pulls and pressures are exerted on the police
to be lenient with the offender and sometimes they are even compelled to drop the
proceedings against the criminal. This has a demoralising effect on police force which
goes to the advantage of offenders.1
Criminalisation of politics has in turn resulted in criminalisation of police. It has
produced and promoted a culture of impunity that allows the wrong type of policeman
to get away with his unwarranted acts of commission and omission.
Fifthly, There is a general tendency on the part of courts to look with suspicion
the evidence put forth by police. The provision contained in Section 25 of the Evidence
Act which provides that a confession made to a police officer is not admissible as
evidence in a court of law, at times creates hardships to the police in the investigation
work and establishing the guilt of the accused.
The Police organisation in India is functioning under the Indian Police Act, 1861,
as modified in 1912 which has become outdated and outmoded. The police in India, as
it exists today, cannot tackle the problems of developing society effectively with their
multifarious activities. The mounting problems of law and order and increasing
incidence of violence have badly shattered the efficiency of the police administration.
It is for this reason that the National Police Commission in its report submitted in May,
1981 had suggested for a new draft Police Act to cope with the new challenges and an
exercise in this direction has already begun at the instance of the Home Ministry of the
Central Government.
With a view to revitalising the police administration, a number of States
appointed Commissions to suggest reforms in police working but nothing substantial
could be achieved because of a general feeling that police is an unproductive and
unrewarding necessity. Public distrust for police is mainly due to misuse of powers by
the police and its low profile of being rough and tough with people who come in
contact with police personnel.
Principles of Policing
The Police has a very important role to play in a democratic set up of
government. They must win the confidence of the people. The principles underlying
policing in a free, permissive and participatory democracy may be summarised as
follows :—
1. to contribute towards liberty, equality and fraternity in human
_________ affairs; _____
1. The alleged mishandling of Jessica murder case (1999 to 2006) and the Nitish Katara murder case
(2006) by police are glaring illustrations on the point.
2. to help and reconcile freedom with security, and to uphold the rule of law;
3. to uphold and protect human rights;
4. to contribute towards winning faith of the people;
5. to strengthen the security of persons and property;
6. to investigate, detect and activate the prosecution of offences;
7. to facilitate movements on highways and curb public disorder;
8. to deal with major and minor crises and help those who are in distress by
holding public grievance redressal meetings periodically every month.
The Role of Police
Robert Reiner rightly remarked that policing is an inherently conflict ridden
enterprise. Therefore, the police has a professional responsibility demanding from them
the highest standards of conduct, particularly those of honesty, impartiality and
integrity. It is rather unfortunate that the police in modem Indian society is looked with
fear, suspicion and distrust by the people. This public apathy towards the police
demoralises them to such an extent that policemen lose self-confidence and are hesitant
in taking firm step to prevent violations of law because of the apprehension of public
criticism.
Yet another potential cause which shatters public confidence in police is the
increasing interference of politicians in the working of the police. Once the politics
enters this department, it paralyses the police arm for the enforcement of the law, thus
putting merit to near incompetency and dishonesty to the front.589 The political pressure
and compromises by the police officials are bound to make them corrupt, dishonest and
inefficient. At the same time, it shall make the fearless administration of law and
justice an impossibility. Thus the impediments on the police due to political pressure or
other like influences make it difficult for the policemen to perform their duties
honestly. It is no exaggeration that the present deterioration in law and order situation
in India is primarily due to these forces which have demoralised the Indian police.
Instances are not wanting when serious violations of law have occurred right tinder the
589 Ghosh S.K. : Law-breakers and Keepers of Peace (2nd Ed. 1969) p. 15.
nose of the police and the latter have preferred a role of silent spectator rather than
initiating action because of the fear of public criticism.590 In a zeal of criticising the
police, people generally overlook the gravity of situation and seriousness of the
offender's crime and blame the police squarely for inaction or atrocities. The police
therefore, feels hesitant in initiating stem action against the law-breakers.
The development of modem techniques has thrown new challenges before the
police force. Modem scientific devices have made the law-breakers more successful
and difficult to catch. The police should therefore, be thoroughly conversant with the
new techniques of crime-control. The use of computer system and augmentation of the
existing communication system would serve a useful purpose for boosting up the
police efficiency.
Public apathy towards police is also due to the fact that quite a large number of
cases prosecuted by the police result into acquittal of the accused due to some or the
other procedural or technical flaws, defect or omission on the part of the police
officials in dealing with the suspect or offender. This is evident from the large number
of damage-suits pending against the police in law courts. That apart, certain provisions
of the Code of Criminal Procedure, 1973 make it difficult for the police to prosecute
the offender. Thus Section 100
(4) of the Code requires that the police should enter the premises for the purpose of
search and seizure accompanied by atleast two respectable inhabitants of the locality.
More often than not, it is difficult for the police to procure such witnesses who are
willing to co-operate in this work. This obviously adversely affects the process of
seizure or search.591
Unfortunately, the relationship between the police and magistracy in India lacks
mutual trust and confidence. In quite a large number of cases police evidence is not
considered sufficient and honesty of the police is doubted by the judicial officers.
Needless to say that there is a need for these two agencies of criminal justice to work
in close harmony and trust for each other. The magistracy should take notice of the
fact that police generally have a better knowledge of the accused, his mode of living,
habits, character and antecedents which enables them to reach proper conclusions
relating to his guilt, which are not always susceptible of being reduced to absolute
legal proof. This is possible when the magistrate begins the trial of the case with the
assumption that the police have done their job honestly and have used legitimate
method in investigating the case.
Police cases mostly fail because of the lack of public support and co-operation.
People in general are reluctant to come forward as witness and assist the police in
apprehending criminals. This indirectly helps the offenders to escape detection or
conviction. The members of society do not realise that it is their social as well as moral
obligation to help the police in suppression of crimes. There is no point in blaming the
police without extending them adequate help and support for enforcing the law and
protecting the life and property of the people.
In brief, the present day Indian police system confronts a hostile people, angry
590 To cite an example, the police station (tharn) was set on fire at Balaghat in Madhya Pradesh on
20th February, 1975 by the furious mob in which one Sub-Inspector and two police constables were
burnt alive and the thana was reduced to ashes. The Superintendent of Police was man-handled by
the rowdy mob. Protesting against suicide by a student, the student's mob set fire on a police van
resulting in death of SHO due to bums in Savai Madhopur district of Rajasthan on 18th March
2011, other 15 policemen were also injured in the incident.
591 See also Section 162 Cr. P.C. which bans the use of any statement made by a person to a police
officer in the course of investigation at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made.
legislators, questioning judges and hysterical victims. It is, however, submitted that
mere hostility or ruthless criticism of police cannot improve police efficiency.592 The
major problem for the modem police in India therefore, is to inspire the public to
appreciate the police values. The general impression that the policemen are inefficient,
brutal, corrupt and lawless593 should be brushed aside and they should be encouraged to
discharge their duties honestly,
592 Sharma P.D. : Police and Criminal Justice Administration in India (1985) p. 80.
sincerely and faithfully so as to promote welfare of the community.

Expressing his views on the functioning of the police in India the noted jurist
Nani Palkhiwala observed, "a professional and honourable police force is valuable in
every society but it is invaluable in a society like ours which is marked by three
characteristics of divisiveness, indiscipline and non-co-operation."594
It may be stated that despite the cherished socio-economic and political human
values of liberalism and civil liberties enshrined in the Preamble to the Constitution of
India, the police functioning and its work-procedure has remained more or less
unchanged. The police system has failed to develop any independent ideology of its
own to participate in an effective manner to achieve the cherished goals of legal and
social justice. The preservation of fundamental freedom and the basic human values
demand an effective role of the police in the Indian setting so that it becomes an
effective instrument of social change as well as the foundation of justice and fair play.
Legal Functions of Police
Dr. Jerome Hall has rightly pointed out that according to the legal and political
theory, the rights and duties of the police to inflict punishment are sharply limited. But
since their job is to pick up criminals from society for prosecution, they play a vital
role in bringing the offenders to justice. It is generally believed that police are obliged
by the nature of their duties to use violence as a measure to control and apprehend
criminals in the presence of counter violence.595 Therefore, the police is perfectly
justified in using force while tackling a fighting drunkard who is damaging the
property or assailing his fellowmen and who looks upon policemen as a malicious
intruder or an armed criminal who has shown a scant regard for human life and nearly
a general hatred towards the police force. Such occasions offer a legal jurisdiction for
the police to use violent methods in course of their prescribed duties. They have to be
rough and tough while making arrests and protecting themselves and also the
community from the criminals. However, at times, the policemen surpass the legal-
limits of the use of violence and adopt brutal methods to inflict pain on the arrested
person with a view to extracting confession from him.
The efficiency of police functioning is generally measured either on the basis of
number of arrests or the rate of conviction for cases brought by the police to the courts.
But none of these tests are capable of measuring the real performance of police to
determine its efficiency. The 'arrest test fails because the decision to arrest a person
may not always be On the bona fide belief of suspicion and many arrest may be made
simply for shielding the inefficiency. The conviction rate may give a more realistic
picture of police efficiency but again, it is not based solely upon the merit of the
prosecution since appreciation of evidence by the presiding Judge is based on other
factors596 such as changing of statements by witness or witness turning hostile and so
on.
The major functions which the police is lawfully required to perform are as
follows :—
(1) Patrolling and Surveillance
Patrolling is the visible police function for the purpose of general watch and
ward. Excepting the traffic control police, static parties-pickets are in vogue. There is
594 Nani Palkhiwala's observations in MISCELLANY dated 8th September, 1985.

595 An article entitled 'Police Authority and Practices' by Richard C. Donnelly published in
'Readings in Criminology and Penology/ edited by David Dressier (second print, 1966), p. 388.
596 Ahmad Siddique : Criminology (3rd Ed. 1993) p. 294.
a good amount of divergence in the patrol patterns in the urban and rural areas. In
rural sectors, patrolling work is done by the village choukidars. In areas having
panchayat system, able-bodied young men in the age-group of 18 to 24 are also
utilised on honorary basis. But in insurgency prone areas, armed police units go about
in a roving commission, generally in an unplanned manner. In all the rural police
stations, the Station House Officer (S.H.O.) is held responsible for maintenance of law
and order and deployment of policemen for patrolling. In urban areas mobile patrols
with wireless telecommunication are arranged for surveillance. Generally, there is no
separate patrolling division in the police forces located in cities and bigger townships.
Experience has, however, shown that patrolling by local civilians should not be
encouraged as it results in lowering the image of the police in the eyes of the public.
Surveillance is yet another important function of the police which is based on
anti-crime work. Presently, this work depends entirely on dossiers and watch-charts
kept in at the Police Station. Each police station generally has a list of criminals and
anti-social elements which require special watch. The information about these
criminals is kept on cards arranged alphabetically in modus operandi boxes and their
photographs are exhibited in the police station. In the modem age of computers, it is
advisable that all necessary information regarding notorious criminals and anti-socials
should be feeded into the computer pool so that it may be readily referred to by the
investigator at the police station or the sub-divisional police officer or even the C.I.D.
branch.
(2) Preventive Functions
The foremost task assigned to the police is to make arrest of law-breakers and
suspected criminals and take them into custody in order to prevent crime. The
preventive powers of the police are contained in the Code of Criminal Procedure.1
Sections 71 and 73 of the Code, further afford adequate protection to the police
officials against legal action for wrongful restraint of an innocent person who was
apprehended and kept in police custody under a bona fide belief that he was an offender
or a law-violater. The legal limits of arrest and detention of suspects are clearly
defined in the Criminal Procedure Code.2 The National Police Commission has
suggested that a new Section 50-A be added to Chapter V of the Code, requiring the
police to give intimation about the arrest to anyone who may reasonably be named by
the arrested person for sending such information, so that necessary arrangements for
release on bail etc. may be made by the interested person or persons.
Whenever the police feels that the investigation cannot be completed within the
period of 24 hours fixed by Section 57, Cr. P.C. and there are grounds for believing
that the accusation or information is well-founded, the police officers making the
investigation may seek an order for remand from the nearest
1. Sections 149 to 158 of the Criminal Procedure Code, 1973.
2. Sections 57, 167, 169 and 170(2) of Cr. PC, 1973.
Judicial Magistrate.597 The law casts a heavy duty on the Magistrate and requires
judicial discretion to be exercised with utmost caution. An order of remand is
conditioned upon satisfaction of the Magistrate,598 the period of such remand shall not
exceed fifteen days.
The Constitution of India also provides some safeguards against the arbitrary use
of preventive powers by the executive.599 The arrested person must be taken promptly
before a Magistrate without any loss of time. The reasons for arrest must be
597 Section 167, Cr. P.C.

598 Rajni Kanta v. State of Orissa, 1975 Cr LJ 83.
599 Article 22(1) to (7) of the Constitution of India.
communicated to the person arrested and he or she, as the case may be, should be
given opportunity to engage the Counsel of his choice for defending his case.
The Police may arrest a person on a warrant issued by a competent Court. An
arrest made on a warrant is in fact a case of arrest made by the Court through police.
But at times, the circumstances may require the police to make an arrest without
warrant. The police may arrest without warrant when they apprehend the commission
of a crime or when they have reason to believe that crime has been committed by the
suspected person.
The police can arrest and take into custody vagabonds, habitual rogues, persons
with doubtful antecedents,600 or those who are conditionally released from jail or prison
for the sake of maintenance of law and order within their territorial jurisdiction.
As regards police power to handcuff the undertrial for escorting and preventing
his escape, the Supreme Court in Prem Shankar Shukla v. Delhi Administration,601
observed, "handcuffing is prima facie inhuman and therefore, unreasonable and at the
first blush arbitrary." The Court further held that even in cases where in extreme
circumstances, handcuffs have to be put on the prisoner, the escorting officer must
record reasons for doing so and get the approval of the Presiding Judge. And once the
court directs that handcuffs shall be off, no escorting authority can overrule judicial
direction. This is implicit in Article 21 which insists upon fairness, reasonableness and
justice in the very procedure which authorises stringent deprivation of life and liberty.
(3) Conditional Release of Accused on Bond etc.
The police also has the power to release an accused on a bond with or without
sureties in case there is no sufficient evidence or reasonable ground of suspicion to
justify the forwarding of the accused to a Magistrate.602 The provisions contained in
Section 437 of the Code of Criminal Procedure relating to grant of anticipatory bail to
the accused are intended to ensure rule of law although it hinders police work in the
following ways :
(i) Anticipatory bail may enable the accused to tamper with evidence against
him.
(ii) The police cannot get remand under Section 167, Cr. P.C., if the offence is
related to property.
(iii) It has a demoralising effect on the victim who feels unsafe and insecure
with the free movements of the accused.
(iv) It obstructs impartial investigation by the police.
The arrested person can apply for bail even in non-bailable offences. The officer
incharge of a police station and the Magistrate have power to grant bail in all such
cases except those punishable with death or imprisonment for life. The Magistrate at
his discretion, has the power to grant bail even in those cases where the accused is a
minor below 16 years of age, a woman or a sick or infirm person.
(4) Investigation by Police
The purpose of investigation is to collect evidence and apprehend the culprit. It is
the duty of everyone concerned to assist the police in their work. The police can
question any person supposed to be acquainted with the facts and circumstances of the
case, and any such person shall be bound to answer truly all questions relating to such
case. A witness may, however, avoid to give those answers which will expose him to
any criminal charge.1 The police may write down the answer orally given by the
600 Section 42(i), (ii) and (iii) of the Code of Criminal Procedure, 1973.
601 AIR 1980 SC 1535.
witness. The witness has neither to give answers in writing nor sign those recorded by
the police.2 In investigation, a police officer can call in writing a person to be a witness
who appears to have some knowledge of the crime being investigated and who is
within the jurisdiction of such police officer or in an adjoining police station.3 The
witness so called has to appear before the police officer but a woman or a child below
15 years of age cannot be required by the police officer for such investigation to go to
any place other than their own residence. A witness appearing in police investigation
may take help of a -lawyer in answering written question put to him/her.4
Political interference at the stage of investigation has become a routine affair. The
National Police Commission has expressed concern about the political parties
irrespective of their views, using their power and authority regarding promotions and
transfers to compel the force to serve their interest. This liaison between the police and
the politician is vitiating the impartiality and objectivity of the police investigation.
This invariably happens at the stage of submission of charge-sheet under Section 173
of Cr.P.C. Though it is the sole discretion of the investigating officer to submit or not
to submit the charge-sheet and even the Magistrate cannot order him to do so contrary
to the former's own honest assessment of evidence5 in the case, the politicians more
often than not enter into an unholy alliance with the investigating officers to get things
done in their favour.
In order to eradicate this evil, the Law Commission in its 14th Report (1958)
had suggested that investigating staff should be separated from the law and order staff
to enable the investigating officer to devote undivided attention to investigation work.
It will bring investigating police under the protection of judiciary which will greatly
reduce the possibility of political or other types of
1. Sec. 161.
2. Ibid.
3. Sec. 160.
4. Section 160 proviso.
5. State of Bihar v. J.A.C. Saldhana, 1980 Cri. L.J. 98 (SC).
interference with police investigation by invoking law of contempt, if necessary. The
separation will also increase the expertise of the investigating police, as in the case of
CID by relieving them from other duties and would result in more successful detection
and prosecution. That apart, separation of 'investigating police' from Taw police' will
also result in speedier investigation and overall quick disposal of investigation cases.603
Investigating authorities should focus their attention on the following aspects of
the case so as to reach the perpetrator of the crime :—
(1) A criminal act may involve lot of motives therefore, the investigation
officer should carefully examine each and every possible motive of the
offender adopting the method of elimination. It may be honour killing,
extreme personal attachment, failure in love affairs, suicidal or accidental,
etc.
(2) The job of police as a part of investigating official has right to suspect
anyone but he should move ahead only if there is possibility of substantial
evidence being available against the suspected person.
(3) In order to find out whether the victim was administered poison or
intoxicants for facilitating the commission of crime, 'Basura test' should
be resorted to.
(4) While handling murder cases, the interrogation of the near relatives of the
deceased person (victim) should be done in a humanitarian manner
603 R. Deb : Police Investigation : A Review 39 J.I.L.I. (1997) p. 266.

keeping in view their sentiments and avoiding undue stiffness with them,
unless there are valid reasons to be tough with them.
(5) In case of murder or suicide, last telephone or mobile call, the person who
was last seen with the deceased (victim), interrogating the family
members, neighbours etc. may provide useful clues to proceed ahead with
the investigation process.
(5) Interrogation of Offenders & Suspects
Another important function that devolves on police is to "frisk" and interrogate
the criminals or suspects. Frisking implies searching the pockets and clothings of the
suspect as a measure of safety and security while enforcing law against him. It differs
from a 'search' which is a legal process meant for collecting evidence against the
offender.604 The police power to frisk the suspects are contained in Section 52 of the
Code of Criminal Procedure, 1973.
The police also have the power to interrogate and question the person suspected
of having committed a non-cognizable offence. But the police power to interrogate the
suspect is subject to certain limitations contained in Section 156 of the Code. The
police must observe certain civilities while interrogating a suspect. The questioning
must not be 'coercive' or too intimidating. They should not extract admission or
confession by coercive or "third degree" methods.605 It is significant to note that the
suspect is under no obligation to speak or answer questions, and anything done or said
by the police officials to make him feel that he is under an obligation, will be
transgression of the legal limits of the power to interrogate by the police.
The restriction as to inadmissibility of confession made to a police officer is
intended to protect the accused person against third degree methods by the police.
Though a confession made to a police official is not admissible in trial, it can however,
be used in evidence of anything recovered as a result of the confession made to a
police officer by the accused.606 Thus, if a weapon used in a murder case is recovered
by the police as a result of confession made by an accused person, the recovery is a
relevent piece of evidence.607
(6) Search and Seizure
The police also conducts search and seizure.608 The search and seizure should not
be unreasonable. They may be conducted by police with or without a warrant. In case a
search is conducted on a warrant609 issued by a Magistrate, it must invariably contain
the following details :—
(i) The information as to the statement of facts showing probable cause that a
crime has been committed.
(ii) A specification of a place or places to be searched.
(iii) A reasonable time-limit within which it must be conducted.
The police can also conduct a search without warrant when it is incidental to a
lawful arrest or where the object of search is a mobile vehicle which can quickly be
removed out of the police jurisdiction or when the accused has consented to it. The
burden of proving the 'consent', however, lies upon the prosecution. Absence of
604 Pande, D.C. : The Limits of Police Coercion (in USA & India), p. 38.
605 A confession made by the accused before police is an inadmissible piece of
evidence under the Code, see Section 25 of the Evidence Act.
606 Section 27, Evidence Act.
607 State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.
608 Sections 94 to 104 of Cr. P.C., 1973.
609 Sections 93 and 94 of the Code of Criminal Procedure, 1973.
coercion or duress is sufficient to establish that the suspect freely consented to the
search.
In case the search involves interference with the privacy of person concerned, the
police must obtain a search-warrant from a competent court. Ordinarily, search must
be made in day-time in presence of two independent witnesses of the locality who are
not connected with the police. An illegal search may lead to two serious consequences,
namely, it may either lead to a civil or a criminal action against the police or it may
result into acquittal of the accused. The legal provisions relating to search and seizure
are so framed as to maintain a balance between the security of persons on the one hand
and the protection to police in discharging its duty properly on the other.
Thus, during the course of investigation, the police is empowered to make search,
order production of documents, seize any suspicious property, call witnesses, require
them to attend court and arrest persons suspected or having committed crime without
warrant. After the investigation, a police report is prepared upon which proceedings
are instituted before a Magistrate. The law requires that every investigation should be
completed without undue delay but in actual practice it is generally noticed that delays
do occur in the process of investigation for one reason or the other.
(7) Maintain Inquest Register

The police is to record information in the Inquest-Register in case a person dies
under unnatural or suspicious circumstances. The law relating to Inquest-investigation
is contained in Section 174 of the Code of Criminal Procedure and only the
Magistrates are empowered to hold Inquest in order to find out whether death was
homicidal, suicidal or accidental. In other words, inquest signifies judicial inquiry to
determine the cause of death. As soon as intimation regarding death in 'unnatural' or
'suspicious' circumstances is received at the police station, it has to be recorded and
forwarded to a competent Magistrate as in the case of cognizable offence. The
Magistrate would hold the inquiry himself or in addition to police-investigation610
Inquest-investigation is a preliminary on-the-spot enquiry by a police officer into
cases of unnatural or suspicious death with a view to recording a finding as to the
apparent cause of death. The presence of respectable local inhabitants lends an air of
formality and solemnity to the purpose. After investigation, Inquest-report is prepared
which is duly signed by the Investigator and attesting witnesses and forwarded to the
District or Sub-Divisional Magistrate forthwith. However, the police has a discretion
not to send the dead body for post-mortem examination only when there can be no
doubt about the cause of death. But this discretion has to be exercised honestly and
prudently.611
(8) To Assist the Prosecutor
Besides making arrests, the police must also actively assist the prosecutor to
conduct prosecution of cases in law courts. The success in prosecution largely depends
on the promptness and ability with which the investigation is conducted by the police.
It is therefore, necessary that the police and the prosecutor should have a thorough
knowledge of substantive and procedural law of crime. The prosecution must come
forward with all material evidence complete in all respects to prove the charge against
the accused. The witnesses should be appraised of the points on which the prosecutor
desires to examine them before they are actually brought in the witness-box. An
informal or preliminary interview with witnesses would not only save the prosecutor
from embarrassment before the Court but also save the witnesses from putting a blank
face or giving unfavourable answers in the witness-box owing to an honest lapse of
memory. As far as possible, unwilling witnesses should be avoided unless it is
absolutely necessary, so also multiplicity of witness should be avoided. This will save
valuable evidence being lost to the prosecution. Greater care should be exercised by
the prosecutor while examining an accomplice612 or an approver613 in case of confession
by the accused.
Another important step in the conduct of a criminal trial is "framing of a
charge." Although it is for the Court to frame a correct charge but the prosecutor
should be vigilant to assist the Court in framing the charge correctly. It is preferable to
frame a few more charges so as to minimise chances of offender's escape on the plea
that a proper charge has not been framed.

611 Kodali Puranchandra Rao v. Police Prosecutor, Andhra Pradesh, AIR 1975 SC 1925.
612 The term "accomplice" has not been defined in the Evidence Act. In its ordinary
meaning, it signifies a person who had something to do with the commission of the
crime by way of assisting it or whose conduct tends to such inference. Though
accomplice evidence is legally sufficient to sustain a conviction, such conviction is
hardly acted upon unless corroborated by material circumstances.
613 An approver is an accomplice who stands as a witness against an accused person. He is
guilty associate in a crime. An approver shall be a competent witness against an
accused person and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an approver.
(9) Identification etc.

In addition to the usual functions of protecting life and liberty of persons and
apprehending criminals, the police also have to deal with special activities such as
identification and laboratory technical research. There are special divisions of police
for finger printing, photography and otherwise identifying criminals, and for filing
records.614 More recently, tremendous increase in vehicular traffic in urban areas has
burdened the police with relatively new responsibility of regulating traffic flow in the
interest of public safety.
(10) Control of Juvenile Delinquency
Since child care is a developmental function of the welfare State, the police has
an important role to play in controlling juvenile delinquency. The Police is involved
with the administration of child-delinquency in all the three important stages, namely,
preventive stage, trial stage and the rehabilitation stage. Although other agencies such
as the voluntary organisation, juvenile courts and social welfare Homes etc., help and
assist the police with their specialised services, it is only the police organisation which
is duty-bound to prevent and control ever-increasing quantum of juvenile crime in
India. The National Police Commission has recommended setting up of special police
squads for tackling juvenile delinquents. A Police Juvenile Bureau in each State Police
Headquarter may also be established for this purpose.615
(11) General Welfare Functions
As a part of welfare measure, the police is entrusted with yet more important
function of helping public in tracing out the missing persons. Special Missing Persons
Squads have been set up in metropolitan areas and other important cities as a part of
police personnel who are exclusively to deal with missing persons and owe a
responsibility to restore them to their families. This is indeed a laudable scheme of
social welfare entrusted to police force.
From the foregoing discussion it is evident the efficiency of the police reflects
upon the law and order situation of a country which in turn leaves an impression about
the general progress of the community. It is encouraging to note that the Government
of J”dia have been striving to improve the quality of Indian police through a phased
strategy of intensive training and research in modem techniques of crime detection.
The Home Guard Voluntary Organisation was started after the Indian Independence to
cope up with the additional work of the police. These volunteers can be utilised to
assist the regular police force in maintaining law and order in times of emergency.
They also help in protecting people from flood, fire, famine or disease etc. Attempts
have also been made to popularise this scheme in rural areas through intensive
propaganda.
The civil police of the state has to perform certain general duties for the
maintenance of law and order in the society. They are briefly stated as follows :—
1. serving and protecting the citizens;
2. engaging the citizens and gaining their cooperation;
3. Policing of beat;
4. Patrolling
5. Collecting intelligence to support police work;
6. Traffic duties;
614 Taft Donald : Criminology (4th Edn.) p. 325.

615 Such Bureaus are already functioning into Metropolitan cities of Mumbai,
Kolkata, Chennai, Delhi, Ahmedabad etc.
Duties of Civil Police

7. Investigating and enquiring the cases reported to them and maintenance of
police station reports, registers, records etc.
8. auxiliary duties such as technology support, special skill support and other
outdoor duties.
Rural Policing in India
There are more than 7.5 lakhs of villages in India. The launching of the integrated
rural development programme and the green revolution have ushered a significant
change for the better in the political and economic set up of rural India. The vast
changes undergone by the villages in India during preceding four and a half decades
have necessitated an efficient police organisation for the effective prevention and
control of the ever-increasing wave of crime in the rural areas.616
The regular police force is too pre-occupied with the tackling of urban crime
problems and too inadequate to deal with the new wave of crime and criminals. The
Police today not only has to deal with traditional crimes but it has also to play the role
of a welfare service organisation. Most of the welfare legislations are meant for the
benefit of the rural masses which are to be implemented in villages. The
malfunctioning of panchayats and co-operatives and bunglings in various
developmental schemes have necessitated restructuring the rural police to combat these
crimes.
The types of crime that commonly occur in Indian villages may include dacoity
or robbery with violence, agricultural feuds generally over disputes about irrigation,
cattle or possession of land, village vandettas over sex intrigues, murders, poisoning
for the sake of inheritance, election rivalries misappropriation of funds, cheating in
relation of advances of Bank loans, trafficking in contraband goods, untouchability
offences, insurgency etc. Therefore, it may be suggested that in order to tackle the
problem of village crimes, there should be a separate rural-wing of police with similar
service conditions as those of regular police. The rural police should be provided
adequate training in welfare activities. Unfortunately, the village policeman is still the
same semi-literate and ill-equipped person despite drastic changes in villages due to
multifaced developments.
However the studies on rural policing in India have revealed that despite best
intentions, State Governments have failed to revamp the rural policing system. The
distressing feature of the Indian rural police in the last decade has been that the
privileged groups tend to dominate over the unprivileged by resorting to extreme
violence and cruelty against backward classes, who seek to free themselves from age
old social injustice and exploitation.617 Attempts made by the landless poor to organise
themselves for safeguarding their rights have met with ruthless counter-attacks from
land-owning classes.
The responsibility of village policing mainly vests in the SHO and the other
supervisory officers. They are supposed to visit as many villages as possible within
their jurisdiction every month. There is provision for appointment of a 'Village Guard'
for each village who may be a person of any six between the age of 21 to 60 years with
unimpeachable character and antecedents. He should possess ability to write in local
language and communicate with the village people. A village Guard shall be a public
servant as defined in IPC.
With the revamping of the Panchayats in recent years, it is necessary that the
616 ’TRANSACTIONS" Vol. 38 (1983) published by National Police Academy ;

Hyderabad, p. 175.
617 Papers presented in the All India Police Science Congress held at Itanagar in
Arunachal Pradesh in Dec., 1988.
village headman, chowkidar and members of Gram-Sabha should be given proper

training to help the police in maintenance of law and order in rural area. Special
village defence parties should also be formed for the purpose of rural policing.
Police Welfare Centres
The introduction of Police Welfare Centres have provided sufficient mental and
psychological background to boost up police morale and tone up their efficiency.
Policemen are provided housing facilities and financial support for the education of
other children. Police cooperative societies are functioning to supply essential
commodities to the police personnel at the subsidised rates. They are also provided
certain additional leave facilities and concessions so that they may denote more time
and attention to their family needs.
The National Police Commission
On the national front, with a view to revitalising police force and suggest
measures of reforms in the working of police, the Government of India appointed a
National Police Commission on 15th November, 1977 under the Chairmanship of Mr.
Dharmavir. It consisted of members, namely, Messers N. K. Reddy, K. F. Rustumji, N.
S. Saksena, M. S. Gore and C. V. Narsimhan as member-Secretary. The Commission
submitted eight Reports in all, the last being in May, 1981. The terms of referencce of
the Commission were :
1. To redefine the role of police and review its powers and responsibilities in
die changed context as a machinery for maintaining public order and
2. To review the working of the police and suggest concrete measures for
reform.
3. To suggest remedial measures for eliminating delays in investigation and
prosecution of cases.
4. To examine the existing methods and sources of preparing crime statistics
and suggest ways and means for working out a uniform
Duties of Civil Police

The civil police of the state has to perform certain general duties for the
maintenance of law and order in the society. They are briefly stated as follows :—
1. serving and protecting the citizens;
2. engaging the citizens and gaining their cooperation;
3. Policing of beat;
4. Patrolling
5. Collecting intelligence to support police work;
6. Traffic duties;
7. Investigating and enquiring the cases reported to them and maintenance of
police station reports, registers, records etc.
8. auxiliary duties such as technology support, special skill support and other
outdoor duties.
Rural Policing in India
There are more than 7.5 lakhs of villages in India. The launching of the
integrated rural development programme and the green revolution have ushered a
significant change for the better in the political and economic set up of rural India. The
vast changes undergone by the villages in India during preceding four and a half
decades have necessitated an efficient police organisation for the effective prevention
and control of the ever-increasing wave of crime in the rural areas.618
The regular police force is too pre-occupied with the tackling of urban crime
problems and too inadequate to deal with the new wave of crime and criminals. The
Police today not only has to deal with traditional crimes but it has also to play the role
of a welfare service organisation. Most of the welfare legislations are meant for the
benefit of the rural masses which are to be implemented in villages. The
malfunctioning of panchayats and co-operatives and bunglings in various
developmental schemes have necessitated restructuring the rural police to combat
these crimes.
The types of crime that commonly occur in Indian villages may include dacoity
or robbery with violence, agricultural feuds generally over disputes about irrigation,
cattle or possession of land, village vandettas over sex intrigues, murders, poisoning
for the sake of inheritance, election rivalries misappropriation of funds, cheating in
relation of advances of Bank loans, trafficking in contraband goods, untouchability
offences, insurgency etc. Therefore, it may be suggested that in order to tackle the
problem of village crimes, there should be a separate rural-wing of police with similar
service conditions as those of regular police. The rural police should be provided
adequate training in welfare activities. Unfortunately, the village policeman is still the
same semi-literate and ill-equipped person despite drastic changes in villages due to
multifaced developments.
However the studies on rural policing in India have revealed that despite best
intentions, State Governments have failed to revamp the rural policing system. The
distressing feature of the Indian rural police in the last decade has been that the
privileged groups tend to dominate over the unprivileged by resorting to extreme
violence and cruelty against backward classes, who seek to free themselves from age
old social injustice and exploitation.619 Attempts made by the landless poor to organise
themselves for safeguarding their rights have met with ruthless counter-attacks from
618 "TRANSACTIONS" Vol. 38 (1983) published by National Police Academy ;

Hyderabad, p. 175.
619 Papers presented in the All India Police Science Congress held at Itanagar in
Arunachal Pradesh in Dec., 1988.
land-owning classes.
The responsibility of village policing mainly vests in the SHO and the other
supervisory officers. They are supposed to visit as many villages as possible within
their jurisdiction every month. There is provision for appointment of a 'Village Guard'
for each village who may be a person of any six between the age of 21 to 60 years with
unimpeachable character and antecedents. He should possess ability to write in local
language and communicate with the village people. A village Guard shall be a public
servant as defined in IPC.
With the revamping of the Panchayats in recent years, it is necessary that the
village headman, chowkidar and members of Gram-Sabha should be given proper
training to help the police in maintenance of law and order in rural area. Special
village defence parties should also be formed for the purpose of rural policing.
Police Welfare Centres
The introduction of Police Welfare Centres have provided sufficient mental and
psychological background to boost up police morale and tone up their efficiency.
Policemen are provided housing facilities and financial support for the education of
other children. Police cooperative societies are functioning to supply essential
commodities to the police personnel at the subsidised rates. They are also provided
certain additional leave facilities and concessions so that they may denote more time
and attention to their family needs.
The National Police Commission
On the national front, with a view to revitalising police force and suggest
measures of reforms in the working of police, the Government of India appointed a
National Police Commission on 15th November, 1977 under the Chairmanship of Mr.
Dharmavir. It consisted of members, namely, Messers N. K. Reddy, K. F. Rustumji, N.
S. Saksena, M. S. Gore and C. V. Narsimhan as member-Secretary. The Commission
submitted eight Reports in all, the last being in May, 1981. The terms of referencce of
the Commission were :
1. To redefine the role of police and review its powers and responsibilities in
ihe changed context as a machinery for maintaining public order and
2. To review the working of the police and suggest concrete measures for
reform.
3. To suggest remedial measures for eliminating delays in investigation and
prosecution of cases.
4. To examine the existing methods and sources of preparing crime statistics
and suggest ways and means for working out a uniform
pattern of crime indices.

5. To review the system of policing in non-rural areas.
6. To examine the scope of utilization of scientific devices in police work.
7. To pay special attention towards the responsibility of police in bringing
about welfare of weaker sections of the people and expeditious disposal of
their grievances.
8. To suggest adequate training and development programmes for police
personnel.
9. To explore the areas of greater police-public participation.
10. Any other matter related to police set-up or police work.
The National Police Commission, in one of its report recommended the setting up
of a Central Police Committee and Security Commission in States and replacement of
the outdated Police Act of 1861 by the New Police Act the Draft of which is prepared
by the Commission.
The Eighth report of the Police Commission was tabled in the Lok Sabha on 1st
April, 1983 by the Ministry of Home Affairs.
The Central Police Committee was to advise the Government and the State
Security Commissions on matters relating to police organisation and police reforms of
a general nature.
The Committee was also to advise them on matters relating to Central grants and
budgetary allotments to the State police forces. It could make a general evaluation of
the State of policing in the country and provide expertise to the State Security
Commission for their assistance.
The National Police Commission had also recommended setting up of an all-
India Police Institute on the pattern of similar bodies of professionals such as
Engineers and Chartered Accountants. The institute was to function under the Central
Police Committee.
The functions of the State Security Commissions include :—
1. Laying down broad policy guidelines and directions for the performance of
preventive tasks and service oriented functions by the police.
2. Evaluation of the performance of the State police every year and
presenting a report to the State legislature.
3. Functioning as a forum of appeal for disposing of representations from any
police officer of the rank of Superintendent of Police and above regarding
his being subjected to illegal or irregular orders in the performance of his
duties.
4. Disposal of appeals and representations regarding promotion to the rank of
Superintendent of Police and above.
The National Police Commission, in its Report of 1980 recorded its observations
regarding the limits of police powers of arrest and search and held that false cases are
sometimes enquired merely for the sake of making arrests to humiliate and embarrass
some specified enemies of the complainant in league with police for corrupt reasons.1
Section 41 of the Code of Criminal Procedure
1. Cr. L.J. March 1990, Vol. 96 p. 28.
lays down various categories of persons whom any police officer may arrest without
warrant or an order from Magistrate. The Commission wanted that this power should
not be misused by the police.
In State of U.P. v. Niyamat620 the Supreme Court of India acknowledged the right
of private defence of the accused against illegal police arrest and observed,
620 AIR 1987 SC 1652.

"indiscriminate arrests by police not only sustain its anti-people image but also cause
unnecessary drain on Exchequer for such detention."
When the recommendations of the National Police Commission were not
implemented, a writ petition (c) No 310 was filed in 1996 which has been decided621 by
the Supreme Court on September 22, 2006. It had been averred in the petition that the
violation of fundamental and human rights of the citizens is generally in the nature of
non-enforcement and discretionary application of the laws so that those police
officials who indulge in blatant violations of laws in the form of unauthorised torture,
harassment, detentions, fabrication of evidence etc. are not held accountable. The two
petitioners who were retired police officers of the IPS had alleged that the present
distortions and aberrations in the functioning of the police were due to Police Act of
1861 on which the entire structure and organisation was based and which has become
obsolete and outdated in the present changed socio-economic and political conditions
of India.
The petitioners contended that besides the report submitted to the Government of
India by the National Police Commission (1977-81), various other high-powered
Committees and Commissions have also examined the issue of police reforms viz., (1)
National Human Rights Commission;622 (2) Law Commission of India;623 (3) Ribeiro
Committee; (4) Padmanabhaiah Committee; and (5) Malimath Committee on Reforms
of Criminal Justice System.
That apart, the Government of India constituted a Committee on 20th September,
2005 comprising Shri Soli Sorabjee, former Attorney-General and five other members
to draft a new Police Act in view of the changing role of the police to face the new
challenges of the present time. This Committee prepared a draft outline for a new
Police Act which was submitted to the Central Government on 9th September, 2006.
The Primary object of the Police Act, 2006 was to create respect for and
promotion of human rights of the people, and protection of their civil, political, social,
economic and cultural rights.
The act consists of 221 sections spread over 25 chapters and is a comprehensive
legislation on various aspects of police functioning. It underlines the need for police to
be professionally organised, service oriented, free from extraneous influences and
accountable to law. It further provides that it is the constitutional obligation of the
State to provide an impartial and efficient police service safeguarding the interests of
vulnerable sections of society including the minorities and respecting the democratic
aspirations of citizens.
The findings of the aforesaid Commissions and Committees indicate a general
convergence of views on the need to have :
621 Prakash Singh & others v. Union of India, (2006) 8 S.C.C. 1.

622 The National Human Rights Commission Report dated 31st May, 2005.
623 154th Report of Law Commission of India.
366 (a) State Security Commission at and

Criminology State level;
Penology
(b) transparent procedure for appointment of Police Chief and desirability of
giving him a minimum fixed tenure;
(c) separation of investigation work from law and order;
(d) a new Police Act reflecting the democratic aspirations of the people; and
(e) a State Bureau of Criminal Investigation under the charge of a Director
who shall report to the Director General of Police.
The Supreme Court in the aforesaid petition expressed hope that the 'Police'
being a State subject under the Constitution of India, the State Governments would
give due consideration to the Model Police Act which would be enacted on the lines
as recommended by the Sorabjee Committee. But the question is how long the Court
should wait for the Governments to take suitable steps for police reforms. The Apex
Court therefore, laid down certain directions in view of the urgent need for
preservation and strengthening of the rule of law, pendency of cases for the last over
ten years, uncertainty as to when police reforms would be actually introduced and in
the larger public interest. The Apex Court noted that Article 32 read with Article 142
of he Constitution empowers it to issue such directions in the interest of justice and
all authorities are bound to follow these directions as mandated by Article 144 of the
Constitution. Referring to its earlier decision in Vineet Narayan v. Union of India/ the
Court observed that the issue of guidelines and directions by the Court was justified
in the absence of appropriate legislation passed by the Central or the State
Government in regard to police reforms. The directions issued by the Supreme Court
are as follows :—
(1) The State Governments are directed to constitute a State Security
Commission in every State to ensure that the State Government does not
exercise unwarranted influence or pressure on the State Police. It would
act as a 'watch-dog' body headed by the Chief Minister or Home
Minister as Chairman and D.G.P. as its ex officio Secretary. The other
members may be chosen on the model as suggested by NHRC or Ribeiro
Committee or Sorabjee Committee. The Report of the State Security
Commission should be placed before die State Legislature for disc ission
and deliberation.
(2) There should be a minimum tenure fixed for DGP. So also there
should be a minimum tenure of IG police and other officers, preferably a
minimum tenure of two years would enable them to perform their
functions with certainty and confidence.
(3) The investigating police should be separated from law and order
police to ensure speedy investigation.
(4) Each State shall have a Police Establishment Board to decide all
transfers, postings, promotions and other service related matters of and
below the rank of Dy. S.P.
(5) There shall be a Police Complaints Authority at the district level to
look into complaints against police officers of and upto the rank of Dy.
S.P. Similarly, there should be another Police Complaints
1. (1998) 1 S.C.C. 226.


Authority at the State level to look into complaints against officers of the
rank of S.P. and above. The District level Authority may be headed by a
retired District Judge while the State-level Authority may be headed by a
retired High Court Judge. These Authorities may be assisted by 3 to 5
other members depending upon the volume of complaints in different
Districts/States and they should be selected by the State Government
from a panel prepared by the State Human Rights Commission/Lok
Ayukta/State PSC. They should work whole time for the Authority. The
recommendations of the Complaints Authority both at the district and
State-levels for any action departmental or criminal, against a delinquent
police officer shall be binding on the authority concerned.
(6) National Security Commission—The Central Government shall set up a
National Security Commission at the Union level to prepare a panel for
being placed before the appropriate appointing authority, for selection
and placement of Chiefs of the Central Police Organisations (CPO's) who
should be given a minimum tenure of two years. The Commission would
also review the measures to upgrade the effectiveness of forces, improve
the service conditions of its personnel, and ensure proper co-ordination
between different forces.
The Supreme Court emphasised that the aforesaid directions shall be binding on
the Central Government, State Governments or Union Territories, as the case may
be, and shall come into force on or before 31st December, 2006 so that the bodies
afore-noted become operational on the onset of the new year 2007. The Cabinet
Secretary, Government of India and the Chief Secretaries of State Govemments/UTs
are directed to file affidavits of compliance by 3rd January, 2007.
As regards directions to be issued for dealing with the cases arising out of
threats emanating from international terrorism or organised crimes like drug
trafficking money laundering, smuggling of weapons from across the borders,
counterfeiting of currency or activities of terrorist groups with international links,
threats and activities aimed at de-establishing the country and subverting the
economy and thereby weakening its defences, the Apex Court expressed a view that
these matters needed extensive study and examination by the experts therefore, it
would not be safe to issue directions as suggested by Mr. Prashant Bhushan on behalf
of the petitioner. The Court, however, made a request to the NHRC, the Sorabjee
Committee and the Bureau of Police Research & Development to examine this
suggestion and assist the Court by filing their considered views on these matters
within four months. The Central Government is also directed to examine this
suggestion and submit its report to the Court within 4 months.
Before parting with the judgment, the Apex Court made further suggestion that
monitoring of the aforesaid directions that have been issued either by the NHRC or
the Police Bureau will be considered on filing of compliance affidavits whereupon
the matter shall be listed before the Court.1
Police Custodial Torture (Human Rights Violation)
Custodial torture has become a common phenomenon and a routine police
practice of interrogation these days. It causes momentary public uproar but once the
incident fades away from the public everything is forgotten.624 The magnitude of
police custodial torture in India is evinced by the Report of Amnesty International
624 'Custodial Torture In Law & Practice With Reference to India' by R. S. Saini JILI
Vol. 36 No. 2 (1994) April-June, 1994.
1. Prakash Singh and others v. Union of India and others, (2006) 8 SCC 1 (Paras 18 to 34).
368 (1992) which says that 415 Criminology

persons diedandin the custody of police and security forces
Penology
due to torture during 1985-91. The Government itself admitted in Rajya Sabha that
46 persons died in police custody due to torture within three months i.e. January to
March 1993 in Delhi alone. These figures point at the alarming dimensions of the
problem. As per the crime statistics of the year 2002 published by NCRB, 84
custodial deaths were reported, 34 cases were registered, 32 policeman were charge-
sheeted but none was convicted during that year.
The detailed report on the number of deaths in police custody during the year
2009 as published by NCRB in CRIME IN INDIA shows there were as many as 449
custodial deaths during the period from 1st January to 31st Dec. 2009. The break-up
of these deaths is as follows.625
1. During hospitalisation/treatment \ — 09
2. due to accident while in Police custody — 04
3. Due to mob-attack during custody or riots — 02
4. Death caused by other criminals during custody — 03
5. By suidde — 21
6. While attempting to escape from the custody — 08
7. Due to illness/natural death while in custody — 33
8. Others including custodial torture/third degree — 369
Total No. of Custodial Deaths — 449

Expressing concern about the agony of arrested person in custodial
investigation, the Supreme Court in Sheela Barse v. State of Maharashtra,626 inter alia,
observed :
"Whenever a person is arrested by the police without warrant, he
must be immediately informed of the grounds of his arrest and in
case of every arrest it must immec’iately be known to the arrested
person that he is entitled to apply for
bail ....... whenever a person is arrested by the police and taken
to the lock-up, the police will immediately give intimation of the
fact of such arrest to the nearest Legal Aid Committee and such
Legal Aid Committee will take immediate steps for the purpose of
providing legal assistant to the arrested person at State level cost
provided he is willing to accept such legal assistance".
The Court further held that the nearest relative or friend of the arrested
person should also be immediately informed about such arrest.
The Supreme Court in Raghubir Singh v. State of Haryana} emphasised the need to
organise special strategies "to prevent and punish brutality of police methodology,
otherwise the credibility of the Rule of Law would deteriorate". The Court suggested
that in order to improve the police image any officer found guilty of concoction,
fabrication and third-degree methodology of investigation should apart from court
conviction, be dismissed as a matter of course to rid the police force of such
undesirable elements.
The term 'torture' with reference to police custody implies infliction of severe
pain or suffering, whether physical or mental, intentionally for the purpose of
extracting from the person who is in police custody, or a third person, information or
625 CRIME IN INDIA-2009, published by NCRB, New Delhi.

626 1983 Cr. L.J. 642 (SC).

confession or coercing or intimidating him or a third person to divulge the truth. It
does not, however, include pain or suffering arising only from inherent in or
incidental to lawful sanctions.
Indeed, nothing has tarnished the image of the police more than brutality
directed against persons in police custody. Third degree methods of torture and
custodial deaths have become an intrinsic part of police investigation. In fact Section
23 of the Indian Police Act, 1861 envisages die duties of a police officer which
should be carried out and enforced with purity, activity, vigilance and discretion.627
The police officials justify custodial torture as a 'necessary evil' to keep growing
crime-rate under control. They justify and support use of violence and third degree
methods against apprehended criminals on the following grounds :—
1. Professional and hardened criminals understand the language of violence
only. They would not tell the truth unless sternly dealt with.
2. When these offenders have no respect and regard for the rights of
innocent persons i.e. victims, why should the police respect their rights.
3. If police deals with offenders politely and gently, no one would ever be
prosecuted for his crime. Thus, from the practical point of view, rough
and tough treatment with the criminals is inevitable.
4. Lack of public co-operation frustrates the cause of police investigation
and people are unwilling to give evidence against the criminals.
Therefore, police has to resort to self-help for eliciting information about
the crime from the offender by using third degree methods if the arrested
person is stubborn and adamant in not divulging out the truth.
5. Very often public also expects the police to give a sound thrashing to
anti-social elements and bad characters. The most glaring example of
custodial torture with the local public support behind it, is the infamous
Bhagalpur blinding episode628 of 1980 when suspects
in police custody were blinded by puncturing their eye-balls.
Whatever may be the justification for the institutionalisation of custodial
torture, the developing human rights jurisprudence demands that this dangerous
practice should be eleminated completely. Reacting sharply against the tendency of
custodial torture and use of third degree methods by the police, the Supreme Court in
Gouri Shankar Sharma v. State of U.P.629 observed :
"It is generally difficult in cases of death in police custody to secure
evidence against policemen responsible for resorting to third degree
methods since they are incharge of police station records which they
do not find difficult to manupulate. It is only in few cases that some
direct evidence is available."
The Apex Court in the instant case held that the evidence on record
conclusively proved that the death of the arrested person occured because of the third
degree methods used by the police.
In Yusuf Ali v. State of Maharashtra,630 the Supreme Court reiterated that if the
accused is beaten or starved or tortured in any way during the course of investigation
by the police, it will be taken as a case of custodial torture. Elaborating the point
627 S.K. Ghosh : Police Informant (1981) p. 27.

628 AIR 1981 SC 928. See also Mathura Bai's case i.e. Tukaram v. State of
Maharashtra, AIR 1979 SC 185 wherein a girl was gang-raped in police custody.
629 AIR 1990 SC 709.
630 AIR 1968 SC 150.
370 further, the Apex Court in Nandini and v.

Satpati
Criminology P. L. Dhani631 laid down certain guidelines
Penology
to provide protection to an accused person in police custody. The Court held that if
there is any mode of pressure, subtle or crude, mental or physical, direct or indirect,
but sufficiently substantial, applied by the police in obtaining information from the
accused, it becomes a case of custodial torture which is violative of right against self-
incrimination. The Court, however, clarified that though the accused is not bound to
answer self-incriminatory questions, he can be asked non-incriminatory questions
which he is bound to answer.
In Niranjan Singh v. Prabhakar Rajaram,632 while dealing with the cases of
custodial torture in police stations, the Supreme Court observed, "the police instead
of being protector of law, have become the engineer of terror and panic putting
people into fear". Again, in Kishore Singh v. State of Rajasthan,633 the Supreme Court
expressed its concern for gruesome act of police torture and observed :
"Nothing is more cowardly and unconscionable than a person in
police custody being beaten up and nothing inflicts a deeper wound
on our constitutional culture than a State official running berserk
regardless of human rights."
Once again the Supreme Court took a serious view of police custodial death in
Dalip Singh v. State of Haryana.634 In this case ,two constables along with a Sub-
Inspector of Kurukshetra district were found guilty of causing death of the accused
by beating and convicted them under Section 304 (II) IPC, i.e., for causing death by
negligence. Yet in another case635 of custodial death, the
Supreme Court not only directed Home Secretary of Punjab to suspend the guilty
Sub-Inspector but also ordered CBI to conduct an inquiry into the case. In this case,
an innocent person, Sarbjeet, was picked up by the police, detained for several days
and finally gunned down near the Indo-Pak border. It was later on found that the
deceased had nothing to do with terrorist activities and was completely innocent.
Since police custodial torture or death is a blatant violation of fundamental
right to life as guaranteed by Art. 21 of the Indian Constitution, compensation has
been considered as an appropriate relief in such cases. The case of Nilabati Behra v.
State of Orissa636 may be cited to illustrate the point. In this case, the Supreme Court
treated the letter of one Nilabati Behra as a writ petition tinder Art. 32 of the
Constitution, wherein petitioner had claimed compensation for death of her son
Stiman Behra aged 22 years in police custody in District Sundergarh in Orissa. The
State Government on behalf of police contended that the deceased had escaped from
custody and was rim over by a train while being chased by the police party.
Therefore it was not a case of custodial death. The Government also raised the plea
of sovereign immunity. The Supreme Court, rejected both the contentions of the
respondents and held that defence of sovereign immunity is not available in case of
constitutional remedy and there was no evidence that the death of the deceased was
accidental. The Court awarded Rs. 1,50,000 as compensation to the deceased's
mother.
631 AIR 1978 SC 1075 per Krishna Iyer, J.

632 AIR 1980 SC 785.
633 AIR 1981 SC 625.
634 AIR 1993 SC 2302.
635 The Hindustan Times (Delhi) dated 6 Nov., 1993.
636 AIR 1993 SC 1960 ; other cases are Ravi Kant v. State, (1991) 2 SCC 373 ; Bhim
Singh v. State of ]. & K., AIR 1985 SC 677 ; Jwala Devi v. Bhoop Singh, AIR 1989 SC 1441.

In SAHELI v. Commissioner of Police, a writ petition was filed by the Women
637
Civil Rights Organisation, called 'SAHELI' under Art. 32 on behalf of the deceased's
mother for recovery of compensation consequent to the death of her nine years old
child caused in custody of Anand Prabhat Police Station in Delhi. The Court
awarded compensation of Rs 75,000/- to the mother.
The case of Joginder Kumar v. State of U.P. and others,638 is yet another example of
indiscriminate arrests and wrongful use of arrest powers by the police. In this case a
young lawyer aged 28 was called to the office of the Senior Superintendent of Police
(SSP), Ghaziabad in connection with "some inquiries". He was accompanied by
friends and his brother, who were told by the police that he would be released in the
evening. Joginder Kumar was taken to a police station with the assurance that he
would be released next day. But he was not released as the police allegedly wanted
his help in making "further inquiries". When his family went to the police station on
the third day, they found that he had been taken to an undisclosed location. Thus
Joginder was illegally detained by police for more than five days.
When the aggrieved family filed a habeas corpus writ petition, the Supreme
Court issued notices to the State of U.P. and S.S.P. to immediately produce Joginder
Kumar and explain why he was detained for five days without a valid reason and
why his detention was not recorded in the police diary and why he was not produced
before the Magistrate.
The police version was that Joginder Kumar was cooperating with them out of
his own free will which the Court was not convinced to accept. The
Court, inter alia, ruled that an arrest cannot be made simply because it is lawful for a
police officer to do so. "The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another...the police officer must be able to
justify the arrest....The Court said that the officer making the arrest must function
under a 'reasonable belief' both as to the person's complicity in committing the
offences and the need to effect an arrest. The Apex Court laid down the guidelines
for arrest by police which are as follows :—
(1) Arrests are not to be made in a routine manner. The officer making
arrest must be able to justify its necessity on the basis of some
preliminary investigation.
(2) An arrested person should be informed the grounds of his arrests
and allowed to inform his friends or relatives about the same. An entry
in the police diary about the arrest and the persons who were informed
about the arrest must be made by the police officer at the police station.
(3) The Magistrate concerned must satisfy that the above requirements
have been complied with by the police.
The question of unwarranted arrest by police officials was also taken up for
consideration' by the National Police Commission, (1980) wherein the Commission
in its Third Report observed that unjustified and unnecessary arrests account for
43.2% of the expenditure of the jails besides the harassment caused to the illegal
arrestee and his family and people losing faith in the police system.
The humiliation caused to suspects or accused persons due to being paraded in
handcuffs while being taken to the court or jail has been held repugnant to Art. 21 in
the light of personal liberty as held by the Supreme Court in Prem Shankar Shukla v.
637 (1990) 1 SCC 422.

638 1994 SCC 260.
372 Delhi Administration. The Court

639 inter alia,
Criminology observed :
and Penology
"Handcuffing is printa facie inhuman and therefore, unreasonable, it
is over-harsh and at the first flush, arbitrary.
Absent fair procedure and objective monitoring to inflict 'irons' is to
resort to zoological strategies repugnant to Art. 21."
It must be stated that custodial torture is an offence under the Indian Penal
Code,640 the Code of Criminal Procedure and the code of conduct of the police.
Besides, it is also violative of the right guaranteed under Arts. 20 and 21 of the
Constitution.
Some other forms of brutalities and atrocities committed by police include
sexual harassment of women to the extent of rape, beating with rifle-butt, inserting
live electric wire into body crevices, burning with lighted cigarettes or candle flame
etc.
The Law Commission of India in its Report of 1995 observed that "the
alarming rise in custodial crimes has pricked the conscience of society and has
evoked public outcry against the law enforcing agencies." The annual reports of the
National Human Rights Commission indicate that the protracted practice of
639 AIR 1980 SC 1535.

640 Secs. 330, 331 and 339 of the IPC ; Sec. 176 (1) of the Cr PC & also the Police Act,
1861.

custodial torture, in spite of being controlled, is showing an alarming increase every
year. Although India has signed the International Convention Against Torture &
Other Cruel Inhuman or Degrading Punishment, (1984) on October 4, 1997, but
despite this the widespread practice of torture still continues unabated.
Supreme Court's Directives for avoidance of Custodial Crimes
The Supreme Court has expressed its concern for custodial commission of
crimes during investigation and interrogation and laid down certain principles to be
followed by concerned police officers in its historic decision in D. K. Basu v. State of
West Bengal.1 The basic "requirements" to be followed in all cases of arrest or
detention till legal provisions are made in that behalf to prevent custodial violence
are as follows :
(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of all such
police personnel who handle interrogation of the arrestee must be recorded in a
register.
(2) The police officer carrying out the arrest shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one
witness who may either be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and contain time and date of arrest.
(3) A person who has been arrested or detained and being held in
custody in a police station or interrogation or lock-up, shall be entitled to
inform his friend/relative or a person having interest in his welfare, as soon as
practicable, that he has been arrested and is being detained at a particular place,
unless the attesting witness of the memo of arrest is himself such
friend/relative.
(4) The time, place of arrest and venue of custody of an arrestee must be
notified by the police.
(5) The person arrested must be made aware of his right to have some
one informed of his arrest or detention as soon as he is put under arrest or is
detained.
(6) An entry must be made in the diary at the place of detention giving
all details, about the friend/relative or person informed.
(7) The arrestee should, where he so requests, be also examined at the
time of arrest and major and minor injuries, if any present on his/her body,
must be recorded at that time. The 'Inspection Memo' should be signed both by
the arrestee and the police officer effecting arrest.
(8) The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody.
(9) Copies of all documents including memo of arrest, should be sent to
the Illaqua Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State
Headquarters, where information regarding the arrest and the place of custody
of the arrestee shall be communicated by the officer causing the arrest within 12
hours of effecting the arrest and this should be displayed on a conspicuous
1. AIR 1997 SC 3017 (decided on 18th Dec., 1996).
notice board at the police control room.

The Apex Court opined that failure to comply with the above requirements will
render the officer concerned liable to be punished for contempt of Court besides the
usual departmental action against him.
The Court in this case condemned the tortuous methods adopted by the police
and observed :
"Torture has not been defined in the Constitution or any other penal
laws. Torture of a human being by another human being is
essentially an instrument to impose the will of the 'strong' over the
'weak' by suffering. The word 'torture' today has become
synonymous with the darker side of human civilization and
custodial violence including torture and death in the lock-up strikes
a blow at the rule of law."
The Court noted that these directives would help to curb, if not totally
eliminate, the use of questionable methods during interrogation and investigation
leading to custodial violence.
Complyingw with the directives of the Supreme Court given in D.K. Basu,641 the
High Court of Calcutta laid down stipulations to be followed by the State
Government of West Bengal in order to prevent, check and monitor custodial
violence.
Since custodial violence and torture involves serious breach of human rights,
the Government of India finally came out with the Protection of Human Rights Act,
1993 with a view to preventing human rights violations and combating torture cases.
The Commission has issued instructions and held meetings of District Magistrates
and Police Superintendents from time to time to initiate adequate measures to
prevent custodial torture and protect the innocent persons from the violation of their
basic rights.
Emphasising the need to implement the recommendations of the Law
Commission in its 113th Report as to amendments to Evidence Act, 1872 and Courts
to change their outlook, approach, appreciation and attitude towards the cases
involving police torture, the Supreme Court in Munshi Singh Gautam & others v. State
of Madhya Pradesh,642 reiterated that Courts should exhibit more sensitivity and adopt
realistic rather than narrow technical approach to the problem. This case involved
death in police custody due to beating by police official in order to extract
confession. Quoting Abraham Lincoln, Mr. Justice Arijit Pasayat, in this case
observed, "If you once forfeit the confidence of your fellow citizens you can never
regain their respect and esteem. It is true that you can fool some of the people all the
time, but you cannot fool all the people all the time." While deprecating custodial
torture, by the police, the Apex Court had made similar observation in the earlier
decision in (Smt.) Sakila Abdul Gafar
641 AIR 1997 SC 3017.

642AIR 2005 SC 402.
Khan v. Vasant Raghunath Dhoble643 and in Raghubir Singh v. State of Haryana's case.644
The Court noted that custodial violence, torture and abuse of police power is
not confined to a particular country but it is wide spread and concerns international
community because of its universal nature. Despite pious Declaration of Human
Rights, 1948, the crime continues unabated though every civilised nation makes
efforts for its eradication. The right to life and liberty as enshrined in Article 21 of
the Constitution provides an in-built guarantee against torture or assault by the State
functionaries. Articles 20(3) and Article 22 of the Constitution further manifest the
constitutional protection against illegal arrests and torture. Despite all that, the
dehumanising torture, assault and death in custody raise serious questions about the
credibility of rule of law and administration of criminal justice system. Dismissing
the appeal the Court upheld the conviction of the appellant under section 304, Part II
of IPC.
Police-Public Co-operation
It is well known that crime detection is the first stage of criminal adjudication.
Although crime detection and investigation are primarily the functions of police but
it is rather difficult for the policemen to perform these duties efficiently without
public co-operation. Therefore, the desirability for public participation in crime
detection hardly needs to be emphasised. Public participation is possible in either of
the following ways—
1. Certain provisions of the Code of Criminal Procedure empower a private
individual to arrest a person who in his presence commits a non-bailable
and cognizable offence, and to hand over such arrested person to police
without unnecessary delay.645
2. The law enjoins a duty upon every person to assist a Magistrate or police
officer in preventing the escape of a person whom they want to arrest or
to help in preventing breach of peace.646
3. People are required to inform the nearest Magistrate or police officer
about the commission of an offence or about intention of a person to
commit certain offence.647
4. Every officer employed in connection with the affairs of a village or
residing in a village is under a duty to report certain offences or matters
relating to maintenance of peace and order and safety of person or
property.648
The lack of public co-operation in police work makes it difficult for the
policemen to discharge their functions efficiently. It is common experience that law-
abiding citizens have greater fear for police than actual offenders. The reason being
that the offenders take it as a routine way of life to come into contact with police and
deal with them expediently. Knowing it well that the police are equally harassed and
fed up with them, the criminals even do not hesitate to use threats violence, trickery
or undue influence to secure their escape from police custody. The normal citizens,
on the other hand, avoid contact with police and prefer to keep away from law courts
even at the cost of slight suffering or loss of legitimate claims rather than reporting
643 (2003)7 SCC 749.

644 AIR 1980 SC 1087.
645 Section 43(1) Code of Criminal Procedure, 1973.
646 Section 37.
647 Section 39.
648 Section 40.
the matter to the police for action. The real problem therefore, is to develop a closer
liaison between the police and the public by inspiring people to think that police is
not their enemy but a friend to help them in distress. It is gratifying to note that this
aspect of police-public relationship is being emphasised through intensive
propaganda and open discussions between the members of the police and the public.
The co-operation of public in crime prevention is also possible by organising radio
talks, lectures and giving intensive publicity to this campaign through the medium of
press and platform.
The National Police Commission has pointed out that the internal discipline and
morale of police is considerably weakened because of the political interference. The
'Police' as a governmental organisation has to serve two masters—one political head
and the other departmental head. Politicians often consider police as their tool to meet
their selfish ends and therefore, oblige police personnel by rewarding them in various
ways. The subordinates on their part sense the game and adopt an equally ambivalent
strategy. The superior—subordinate relationship in police organisation is guided by
the principle, "lick the above and kick the below". Such mentality is the characteristic
of authoritarian superiors and their dominance over subordinates. Prior to Indian
Independence the police was entitled to use coercive power against anti-social
elements and political activists. However, after independence, the political leaders in
power became the bosses who expect the police administrator to consider even their
political opponents as the target groups for vengeance. The police officers who are
trained to obey the orders, have a dilemma; whether to obey wrong orders, and whom
to consider their real boss, because those who are in power quite often change their
place. The relationship of the policemen with the politician in the present political
senario has resulted into criminalisation of politics which has complicated the matter
further and this is a major set back which hinders a healthy public-police relationship.
In a democratic set up the role of police is to protect individual liberties and
civil rights. They are to be charged with the preservation of public order and
tranquility including crime prevention and detection, and promotion of public health,
safety and morals. But unfortunately the public image of police is not very bright.
Writing about unpopularity of police, Leon Ameline has observed that there is no
human institution which inspires so much distrust and enmity as the police. Their
unpopularity makes people shim them.
NHRC Guidelines on Police Public Relations
The guidelines issued by the National Human Rights Commission on December
22, 1999 to all the police officials posted at police stations are of invaluable
significance as they enable the police officers to perform their duties in a manner
compatible with recognised human rights standards. These guidelines, inter alia,
include :—
(1) Providing a toll-free telephone number for the public to convey crime
information to the police;
(2) Transparency in the investigation process by registration of offences
and recording progress of investigation and complainants must have
access to information about their cases.
(3) Monthly meetings of Station House Officer (SHO) with the Public.
This will enable people to voice their grievances and also provide the
police an opportunity to inform people about the law and order situation.
Emphasising the need for people's participation in policing, the Commission
observed that as a vital component of the governmental machinery, the police too, are
under an obligation to take into account community aspirations and activise policing
to serve the needs of the people. Transparency and fairness in the police functioning
are an asset for the people-oriented policing system.
Police Advisory Committees
More recently, Advisory Committees at the Police Commissioner's level and at
the State level have been constituted in different parts of India. Such Advisory
Committees are functioning successfully in the cities of Delhi, Chennai, Ahmedabad,
Mumbai and Pune. These committees consist of members belonging to all political
parties and others who have no declared affiliation. The members are free to express
their views. The police also is equally responsive to public comments. Thus, the
committees serve as an effective media to improve police-public relationship. The
members bring to the notice of the administration the important law and order
problems of their areas. The police officials also can explain their difficulties in
handling crime problems.
Judiciary's Attitude Towards Police
Like public image of police, the judiciary also does not hold police in high
esteem. The judiciary has quite often made adverse comments about the working of
the Indian Police and blamed it for corruption, dishonesty, inefficiency and its
oppressive methods of investigation. Justice A.N. Mulla of the Allahabad High Court
who later became a member of Parliament, characterised police force as the 'largest
single lawless group' and held that crimes in India could be reduced to half if the
police was disbanded! Mr. Justice
O. Chinnappa Reddy ; former Judge of the Supreme Court attributed poor image and
people's indifference towards police to a variety of factors, the more important
among them being its occasional high handed behaviour, acts of perjury and misuse
of power and authority.649 Earlier, the Police Commission also commented adversely
against L a Police and observed that the police is far from efficient, it is defective in
training and organisation, it is inadequately supervised and generally regarded as
corrupt and oppressive hence utterly failed to win the confidence and co-operation of
the people. Instances of brutality, violence and even rape committed by police with
persons under their custody are frequently reported by the media as a result of which
public and people begin to think police as a foe rather than a friend. It is therefore,
necessary that the police should try to improve its image in public so that it
commands respect and sympathy of the people. In the background of custodial
torture cases coming before the courts, the judiciary has made the following
suggestions for improvement of police image :—
1. Policemen should be made to understand that they are basically to help
the public and not harrass them.
2. The use of force should be minimised to the barest necessity so that
public voluntarily extends a helping hand to the police.
3. In order to win public co-operation and support, the police must
demonstrate absolute impartiality in its work without being influenced
by the pressure from political high ups.
4. Proper training should be imparted to policemen of all ranks and they
should be apprised of the latest techniques of crime detection and
investigation.
649 Developing Society And Police, Osmania University Publication p. 2.

5. The police force should be adequately staffed and equipped with latest
weapons to meet new challenges.
6. The Police Act of 1861 needs to be repealed and the new Police Act
2006, brought into effect forthwith.
7. The police machinery should be insulated from political interference as
recommended by Dharam Vira Commission Report.
8. Surprise visits to police stations and similar units of senior officers
should be intensified. This would help in early detection of persons held
up in unauthorised custody and subjected to ill-treatment.
9. Above all, torture victims should be dealt with sympathetically and
should be adequately compensated650 and also provided necessary
medical treatment and rehabilitation. At the same time, those found
guilty of torture and atrocities, should be sternly punished.
As rightly pointed out by the National Police Commission in their report of
April 1983, there is need to re-structuring the police force and redefine its functions.
While there is no reason to ban the police unions, their activities should not be
prejudical to the interests of the community. In the modem welfare State the police
should play the role of a friend and a guide to the common man, and members of the
community on their part, should also realise that policemen are after all a part of the
society and therefore, they are to be trusted and taken into confidence. Then only the
police can perform its functions efficiently.
The reasons usually cited for growing crime and violence are population
explosion, unemployment, erosion of traditional values, political patronage of anti-
social elements, terrorism and so on. This is indeed true, but a distinct improvement
in the law and order situation is still possible if policemen act with greater vigour,
efficiency and honesty. And this calls for a firm and unambiguous direction from the
highest administrative and political authorities.
Citizen's Voluntary Force
For the past few years, the Delhi police is experimenting with a new agency
called the Citizens Volunteers Force with a view to mustering public-police co-
operation in dealing with crime and criminals. Under the
650 See Bhim Singh v. State of J. & K., A.I.R. 1986 SC 494; Saheli v. Commissioner of
Police, AIR 1990 SC 513; State of Maharashtra v. Rwikanth, (1991) 2 SCC 373 etc.
scheme, certain volunteers from amongst the public are issued identity cards.
These volunteers have the power of crime detection. This organisation is intended to
help the police in their task of crime detection and investigation. Greater importance
is being attached to this Force in the wake of recent terrorist activities in Delhi.
Similar voluntary force has been constituted in Mumbai which is called the
Mumbai Police Citizens Assistance Force which helps the Police to Solve the
problems of people by mutual discussion in a cordial atmosphere.
Modernisation of Police
The setting up of a Central Finger Print Bureau at Calcutta in 1956 and the
Crime Record Bureau in the Central Bureau of Investigation in 1964 for maintaining
up-to-date data of crimes and criminals at national and international level was indeed
a significant step in the process of modernisation of police functioning in India.
Under the Police Modernisation Scheme proposed by the Sixth Finance
Commission, computer system was introduced in the police establishments of eleven
States.651 Besides, a joint computer centre was set up at Chandigarh to cater to the
needs of four adjoining States, namely, Punjab, Haryana, Himachal Pradesh and
Jammu & Kashmir. In 1976, a Directorate of Coordination Police Computers
(DCPC) was established in Delhi which has been assigned the function of ensuring
adequate financial assistance to the State for setting up computer centre and provide
training facilities for preparing data bank of crime record etc. A National Crime
Record Bureau (NCRB) has been set up in 1985 which maintains complete record of
crime statistics throughout the country. In its annual publication 'Crime In India', all
important statistical information relating to crime and criminals, juveniles, police,
courts, prisons etc. is furnished for the guidance of the concerned departments.
The Bureau of Police Research and Development head-quartered in Delhi is
actively involved in scientific research and development of new technologies in
police investigating methods. There are at present more than 200 forensic
laboratories functioning in India652 including eight central laboratories and 138
mobile units which function under different State Governments. However, the
forensic scientists feel that it is necessary to upgrade these laboratories in view of the
growing crime in this country and the adoption of sophisticated methods by
criminals. There is dire need to ensure uniform standards in all the State laboratories
particularly DNA test facilities which is one of the most reliable forms of
investigation653 developed so far and can save time and manpower by the probing
agencies. Inquiries, however, reveal that forensic laboratories are not functioning
properly as they fail to cope with the work-load. Thousands of cases referred to these
laboratories are not cleared for several months and if the reports are not given within
three months, forensic test becomes meaningless. Therefore, there is need to
revitalise the functioning of these forensic laboratories.
In a pluralistic and fragmented society like ours, with its ethnic and regional
disparities as well as cultural diversities, the question of socio-economic justice
makes a serious impact on the law and order situation. This has thrown new
challenges before the police force. There is no doubt that the police, like any other
651 These States were Tamil Nadu, Kerala, Karnataka, Andhra Pradesh, Maharashtra,
Gujarat, Rajasthan, Madhya Pradesh, Bihar, West Bengal and Uttar Pradesh.
652 The first forensic laboratory was established in Calcutta in 1952.
653 The antecedents of Dhanu, the assassin of former Prime Minister, Rajiv Gandhi was
established in DNA test.
organ of the administration has to be sensitised to the needs and reactions of the
people and simultaneous efforts should also be made to ensure that the police
develops as an efficient purposive and self-respecting force immune to both, political
abuse and politically motivated criticism.
The changes in the nature of crime as well as criminals over the years has
necessitated modernization of the police force to Cope up with the new challenges.
The ever-increasing political interference of political leaders has complicated the task
of police further. Political agitations have tended to subvert the priorities for the
police because instead of concentrating on prevention and control of crime they are
pre-occupied with maintenance of public order for which responsibility is diffused
and accountability is difficult to determine. Under these conditions there is dire need
for raising the efficiency of police force by greater professionalism and scientific
training. The effectiveness of the police as agents of social control should not be
allowed to be blunted by political interference in their functioning.
Malimath Committee Report on Police Functioning
In 2004, the Government had appointed Malimath Committee to report on
Police and Criminal Justice System in India under the Chairmanship of Dr. V.S.
Malimath, former Chief Justice of Karnataka & Kerala High Courts. The Committee
made a detailed analysis of criminal justice system and gave recommendations on
fundamental principle, of justice, investigation, prosecution and functioning of
judiciary. This included subjects like crime, punishment, reclassification of offences,
offences against women, organised crime and arrears in courts. The
recommendations of Malimath Committee were analysed by the police
administration in a national level seminar on Police and Criminal Justice System at
the Punjab Police Academy Phillaur.654
The Police Sniffer Dogs
Now-a-days 'sniffer dogs' are too often pressed into service by the Police for
spotting out the criminals and detection of crime. Certain species of dogs such as
Alsatian and Labrador are regularly trained in the Dog School and then they join the
regular services of Police. The sniffer dog must be brought to the scene of crime
within forty-eight hours of the incident.
In view of the increased terrorist activities around Delhi, the Delhi Police is
training two sniffer dogs who are presently being trained at Dog School BSF
Takanpur (Madhya Pradesh). These canines have joined the regular services of Delhi
Police in April, 1988. At present, Delhi Police has a few sniffer dogs on loan from
National Security Guards to smell out explosives at vulnerable sites and from
suspected baggages. Owing to increasing pressure on Delhi Police, there is a proposal
to increase the strength of sniffer Dogs from 20 to 36.
INTERPOL
age. The tremendous growth in the means of transport and inter-communications has
brought in its wake new problems of criminality. Now-a-days escape by air or sea is
a common feature resorted to by criminals who operate on an international plane. The
dangers of international crime have to be faced squarely by all the nations. Therefore,
every individual country has its own international agency to tackle the problems of
international crime. This agency is familiarly known as 'INTERPOL' (International
654 Times News Network, Sunday Sept. 12, 2004.

Criminal Police Organisation) which concerns itself mainly with the establishment of
direct contact with the police forces outside the ordinary channels of diplomacy. The
affected country makes a triple request to INTERPOL to seek, hold and deliver the
criminals.
INTERPOL has assumed great importance in recent years due to rising
incidence of trafficking in drugs, gold, precious stones, forgeries of traveller's
cheque, documents, passports and counterfeiting of currency notes. The assistance of
INTERPOL is invariably sought in making arrest of criminals involved in hijacking
of aeroplanes.
The activities of INTERPOL also include searching and chasing of international
criminals; circulation of information regarding international crimes and criminal
gangs received from member police forces, assisting in arrest of international
criminals and making arrangements for keeping them under surveillance, pending
their extradition.
The purpose of INTERPOL (International Criminal Police Organisation) is (1)
"to ensure and promote the widest possible assistance between all criminal police
authorities within the limits of the laws existing in different countries and in the spirit
of the Universal Declaration of Human Rights"; and (2) "to establish and develop all
institutions likely to contribute effectively to the prevention and suppression of
ordinary crimes."
In short, the INTERPOL enables the police forces in different countries to co-
ordinate their work effectvely in the areas of law enforcement and crime prevention.
It refrains from indulging in any activity relating to cases which have a political,
military, religious or racial character.
International Perspective of the Police
The Police problems and functioning have occasionally been discussed in
International forums from time to time. The second United Nations Congress on the
Prevention of Crime And Treatment of Offenders, London, 1960 discussed in great
detail special Police Services for prevention of delinquency.
A variety of programmes have been developed in Anglo-American countries for
training police for the prevention of juvenile delinquency. The International Criminal
Police Organisation, the International Federation of Senior Police Officers and the
International Association of Chiefs of Police have often made important suggestions
bearing on police training.
An International conference on "Urban Police" was held at Rome in September,
1985 to tackle the problem of urban crimes and suggest measures for prevention of
urban delinquency. The problem of rural policing is also engaging the attention of
even affluent countries like Germany, USA, UK and France.
In this context, it must be stated that India being a party to the
International Covenant on Civil And Political Rights, it has ratified as many as
thirteen international instruments on human rights, but it has not yet ratified
convention against custodial torture contained in the Second Optional Protocol to the
International Covenant on Civil & Political Rights. The human rights jurisprudence
having now assumed global importance, India should not remain content by merely
setting up a National Human Rights Commission,655 but should take steps to ratify the
human rights instruments, particularly, the convention against torture, which should
655 The National Human Rights Commission (NHRC) headed by Justice Ranga Nath
Misra, former Chief Justice of India and four other members was set up in 1993.
be made a non-derogable right. Obviously, this would require drastic changes in the
existing Police Act, 1861 which has now become outdated.656 Similar changes are also
called for in the Jail Manual which represents the legacy of the British colonial rule
in India and is no longer in tune with the concept of modem democratic welfare
States.
It is, however, heartening to note that introduction of the electronic video
linkage in recent years has eased the burden on the police to a considerable extent.
The NHRC has appreciated this measure as the police will no longer be required to
accompany the undertrials to the Magistrate's Court every fifteen days for extending
their remand period. In other words, remand prisoners would not be required to be
physically produced before the Magistrate, instead, Magistrate would extend the
remand period through video-conferencing. Indeed, e-mail connectivity to all police
stations will provide for speedy correspondence as in most of the States Video-
conferencing facility has been provided to DGP, Zonal I.G.'s, Range, DIGs and SPs
at the district level.
656 Soli Sorabjee Committee has already submitted a draft Model Police Act to the
Government of India on September 9, 2006 for approval.
Chapter VIII
The Criminal Law Courts
Theaccomplishments
Indian Judicial system has a long and glorious history of functional
and admirable social purpose. It has acquired a solid
respectable structural frame with established laws and recognised court practices of
trial and justice through the institutions of bar and the bench. It is well known that an
independent judiciary free from interference of the executive or legislative organs of
the Government is an essential prerequisite of a democracy which is wedded to rule
of law and public welfare. Independence, however, does not allow the Judges to act
in an arbitrary manner, but they are to interpret laws in accordance with the settled
principles of law and the dictates of their own conscience.
A variety of courts function under the judicial system of a country. The main
among them are the civil courts, the courts for criminal trials and the revenue courts.
The task of administering criminal justice is performed by the criminal law courts
comprising the Magistracy and the Court of Session. The High Court and the
Supreme Court have only appellate jurisdiction in criminal cases. These courts are
generally engaged in dispensing abstract and even-handed justice in terms of
principles set forth in an absolute law.657 It therefore, follows that the courts must
impart justice within the limits of the law so as to maintain uniformity and
impartiality in the determination of guilt and punishment of the accused. It cannot,
however, be denied that despite these legal limits prescribed by the law, certain
degree of personal discretion of the judicial authorities does play a significant part in
influencing their decision as to the guilt of the accused and the sentence awarded to
him. Thus the sentence passed for a particular offence may vary, of course, within
the prescribed legal limits, from Judge to Judge depending on his personal
perceptions, belief, faith, temperament, attitude of mind, likes and dislikes and own
life experiences. One Judge might take a serious view of the offence and award the
maximum sentence prescribed for that offence while the other might take a lenient
view of the matter and award the minimum sentence prescribed for that offence.658
What actually happens is that the presiding Judge forms a definite opinion about the
guilt or innocence of the accused during the course of trial and finally delivers his
judgment which is nothing but a statement of his personal opinion expressed within
the framework of legal provisions. That apart, the public opinion and socio-cultural
considerations also influence the legal thinking to a certain extent which eventually
find expression through judicial pronouncements.659
657 Sharma P. D. : Police and Criminal Justice Administration in India (1985) p. 116.
658 See judgment of Mr. Justice Krishna Iyer and Mr. Justice A. P. Sen in Rajendra
Prasad's case, AIR 1979 SC 916.
659 Various decisions of the Supreme Court on death penalty bear testimony to this fact.
The new trend of 'public interest litigation' also supports this contention.
Adversarial and Inquisitorial Systems

The administration of criminal justice is composed of various components such
as the police, prosecution, defence, courts and correctional institutions. In India,
unlike many countries, a person is innocent until proven guilty. This is called an
adversarial system as opposed to an inquisitorial system. The adversary system
presumes that the best way to get the truth is to have a 'contest' between the two
sides, namely, the State or the prosecution and the defence. In contrast, in an
inquisitorial system, the accused is presumed guilty and is supposed to prove his/her
innocence. Historically, this method involved ascertaining the guilt by ordeal or
through trial by battle. The criminal law and procedure in India is based on the
English law of crime which is no longer suited to the changing needs of the Indian
society and its traditions. Although a number of amendments have been made in the
Indian laws of crime and procedure to make them responsive to the recent socio-
economic changes but the complexion of the Indian society is changing at a quicker
pace than the new forms of social control.
Court's Role in Dispensation of Criminal Justice
It is significant to note that while many of the offences in the Penal Code have
lost their import, several new offences have emerged in the flux of change. Organised
crimes and white collar criminality are relatively a new phenomenon of modern
societies which are multiplying at an alarming pace. These crimes have become
dominant feature of a powerful section of modem Indian society which either aids or
abets the criminal activity or engages in it directly. Today, a big smuggler, tax-
evader, black marketeer through clever advocacy and tell-tab medical certificate, gets
away with his crime with no imprisonment, while a poor man rots in a prison cell
because he has no tongue to explain his innocence. Thus, it would appear that
administration of criminal justice is cumbersome, expensive and cumulatively
disastrous. The poor can never reach the temple of justice because of heavy cost of its
access. The hierarchy of courts, with appeals after appeals puts legal justice beyond
reach of the poor.
The purpose of criminal trial by court is to dispense fair and impartial justice
uninfluenced by extraneous considerations. If it appears to the court that dispensation
of criminal justice is not possible impartially and objectively and without any bias,
the court may transfer the case to another court where it finds that holding of fair and
proper trial is conducive. The convenience of the parties including the witnesses to be
produced at the trial is also relevant in disposing of a transfer petition in the interest
of justice.
The foregoing account of the criminal justice system makes it clear that the role
of court as an agency of justice and criminal law administration is far more vital and
significant than that of the police or the prison. The prime function of the court is to
impart fair and impartial justice. The Judges have to discharge this arduous task with
utmost care and caution so that public confidence in judicial process is not shattered.
The presiding Judge must be aware that his verdict in the case is going to make a
lasting impression upon the accused about justice or injustice depending on his
rightful or wrongful acquittal or conviction. His future reformation or continuance of
a life of crime depends to a large extent upon his court experiences.
Most countries today have a regular hierarchy of courts for dispensation of
criminal justice. A brief account of the criminal law courts operating in U.K., United
States of America and India for imparting justice in criminal cases would serve a
useful purpose in appreciating the role of courts as an agency of justice.
The Criminal Law Courts 385
The British Criminal Law Courts

The Anglo-Saxon concept of justice has its roots in the legacies of Roman law
and Roman jurisprudence which laid great emphasis on jus naturdle and jus genitum.
The principles of equity got embedded in British judicial system in course of time.
The King was regarded as a fountain of justice. The renaissance stressed upon the
secular nature of justice and the sovereign character of secular State was regarded
indispensible for imparting even-handed justice. However, with the growing power
of the King's Bench in subsequent years, the power of the cannonical courts declined
and a variety of new courts were set up for the administration of criminal justice.
The chief among these courts which still continue to this day are :—
1. The House of Lords.—House of Lords was the highest Court in the hierarchy
of British Judicial Courts for the administration of criminal justice until October
2000. It exercised both, original and appellate jurisdiction. Prior to 1907, only those
cases could be referred to House of Lords in appeal which involved intricate
questions of law. But with the passing of Criminal Appellate Courts Act, 1907, the
appeals from criminal cases could be referred to the Court of Criminal Appeal
whereas the cases which were of public interest and certified by the Attorney-
General, were referred to House of Lords. The Administration of Criminal Justice
Act, 1961 further modified the appellate powers of House of Lords and it could take
up any appeal from Criminal Appeal Court or Divisional Court of Queen's Bench for
adjudication. As regards the original jurisdiction of House of Lords, it had the power
to try any person who was impeached by the House of Commons. Prior to the
Criminal Justice Act, 1948, the original jurisdiction of House of Lords extended
only to the cases of peers who were charged with treason or felony.
Earlier, the House of Lords was bound by its former decisions on questions of
law. However, on July 26, 1966 Lord Chancellor made a policy statement to the
effect that the House of Lords, while treating their former decisions as normally
binding, will depart from them when it may appear right to do so. Accordingly, the
House of Lords departed from its earlier judgment given in Duncan v. Carumell Laird
and Co.660 while deciding the case of Conwey v. Rinomer661 in 1968 in which it was
decided that the Courts have a right to question the finality of Minister's certificate
as regards non-production of a document on the ground of Crown's privilege. Thus,
the House of Lords is now no longer bound by its earlier decision.
It must, however, be stated that the House of Lords which functioned as the
highest judicial institution of Britain for more than six centuries, lost its judicial
status with the constitution of the Supreme Court in which the twelve law lords who
were hitherto disrharging judicial functions in the House of
Lords would hold judicial proceeding in the Supreme Court located in Middlesex of
the Parliament Square London. This change has been introduced in UK from 1st
October 2009 with the purpose of bringing about complete separation of judicial
functions from the executive. Though the law relating to constitution of the Supreme
Court in UK had been passed in 2005, it could be implemented only four years later.
With this changes the House of Lords will now function only as an executive
institution.
2. The Court of Criminal Appeal.—The Court of Criminal Appeal ranks next to
the House of Lords in the hierarchy of British Criminal Courts. This court is
660 (1942) AC 624 : (1942) 1 All ER 587 (HL).

661 (1968) AC 910 : (1968) 1 All ER 270 (HL) ; See also Miliangos v. George Frank
Textiles Ltd., (1976) AC 443.
exclusively meant for deciding appeals preferred by the accused person against his
conviction by the subordinate court in case a substantial question of law is involved.
The Court of Criminal Appeal must either allow the appeal and quash the conviction
or dismiss the appeal, but has no power to order re-trial of the case. From the
decision of this Court either parties may move in appeal to the House of Lords
provided leave to appeal is granted by the Court of Appeal itself or by the House of
Lords.662
3. Queen's Bench Division of the High Court. —Next in the descending order of the
criminal courts is the Queen's Bench Division of the High Court. The Court exercises
both, original as well as appellate jurisdiction. From the decisions of Quarter Session
both parties may appeal to the High Court on a point of law and the case is heard by
the Judges of the Queen's Bench Division. However, both the sides may appeal
directly from the Magistrate's Court to the High Court bypassing the Quarter
Sessions, in case a point of law is involved in the case.
4. Assize Court.—Serious indictable offences are tried by the Assize Court.
These are mobile courts holding Quarter Sessions in counties. Assize Court consists
of a Commissioner, usually a High Court Judge appointed by Letters Patent. The
county is divided into circuits, Assizes being held in each county and in some large
towns on the circuit. Ordinary offences are triable at Quarter Sessions which are held
in each county. The County Quarter Session is usually presided by a chairman who is
qualified in legal practice, usually a practising barrister who performs this public
duty part-time. However, there exist permanent Sessions in London, Liverpool and
Manchester where the Judges are whole-time officials. These courts are not
empowered to decide cases of treason, murder, conspiracy, bribery, blasphemy,
forgery, perjury or libel, which are punishable with imprisonment for life.
5. The Central Criminal Court of London.—The Central Criminal Court functions
as a permanent Assize Court and decides criminal cases within the territorial
jurisdiction of metropolitan dry of London and its suburbs.
6. The Magistrate's Court.—Lowest in the hierarchy of criminal courts are the
court of petty Magistrates who usually try petty summary offences not punishable
with more than six months' imprisonment. The majority of the offences can only be
dealt with summarily in a Magistrate's court. In case of summary offences punishable
with three months' imprisonment or more, the accused may be tried by jury if he so
desires. Quite a large number of cases are tried in the Magistrate's courts. These
courts consist of non-lawyers appointed for each county and large towns by the Lord
Chancellor on the recommendation of local committees. The proceedings in the
Magistrate's Court are quick and informal. The parties usually appear in person. The
prosecutor usually a police officer, conducts the prosecution case and the defendant
has his own advocate. Both the sides can, however, be represented by counsel or
solicitor. The formalities of wigs and gowns are considered unnecessary in these
courts.
Trial by Jury
The system of trial by jury occupies a unique place in the history of English
judiciary.663 Dr. Fitzgerald rightly comments that no English institution has been so
extolled as the criminal jury and no right is more valued by the Englishman than his
662 Now, Supreme Court of UK w.e.f. October 1, 2009 consequent to House of Lords having ceased
to function as the highest judicial court and its 12 Lords constituting the Supreme Court of UK.
663 The system of jury first originated in France in ninth century and was firmly
established in England by the 13th century.
right to be tried by jury.664 All offences punishable with three months' imprisonment
or more are triable by jury. The jury consists of twelve persons drawn from the ranks
of property owners or house-holders of either sex between the age of twenty-one and
sixty. The low property qualifications for juries and exemption of clergymen or
professional men from the jury service make it less representative of the community.
The clerk of the Court selects and calls out the name of each juror one by one. As
each juror comes forward, the accused has a right to raise objection to the
appointment of that juror on the jury.665
The function of the jury is to decide questions of fact. Their verdict should be
unanimous though not necessrily supported by reasons. They are free to return their
verdict without threat and restraint and the Judge must accept it. A verdict of
acquittal by jury contrary to the weight of evidence must sustain but a verdict of
conviction, if perverse, can be quashed on appeal.
The presiding Judge has to appraise the jury about the evidence and the points
of law involved in the case. In case there is absence of sufficient evidence to support
conviction, the Judge can discharge the accused without the help of jury service.
A dispassionate analysis of the system of jury would reveal that the defects of
the system far outweigh its merits. To count only a few of its shortcomings, the
system involves crucial waste of time and money. The juries, by and large, are
laymen without any expert knowledge of law and procedure of the court. They are
open to prejudices and often fall a prey to undue influences. On the positive side of
the jury, it may be argued that the system serves as an instrument to extend necessary
protection to the defendant against arbitrary decision of the Judge and the
government. The verdict of jury is in fact an expression of common man's viewpoint
about the guilt or innocence of the accused keeping in view the circumstances of the
case and realities of life rather than lamenting within the rigid confines of legal
provisions. This enables the
664 Fitzgerald, P. J. : Criminal Law And Punishment (1962), p. 160.

665 This is known as the "challenge to the polls." The person who is being tried can object in seven
cases without giving reasons, that is to say, he has seven premptory challenges. Thereafter, he
must support his objections giving reasons and his objection may be overmied, The prosecution
too can challenge a juror but has no premptory challenge.
Presiding Judge to know the opinion of publicmen in cases which come before him
for trial and thus the system ensures actual participation of public representatives in
judicial functions of the courts.
The American Criminal Law Courts
The judicial arrangement for the administration of criminal justice in United
States is well known for its compactness and high standards of efficiency. In fact, the
American judicial system ranks as one of the best judicial systems of the world.
According to Taft Donald, the American court system is the product of American
influences.666 The development of trade and commerce created need for new and
complex laws and also a professional class of lawyers. Moreover, the Americans
lacked confidence in the theory of judicial precedent and therefore, preferred that
juries who are the representatives of the people should control the judicial process
rather than the Justices. The power of judicial review has contributed a good deal in
development of a sound judicial system in America.
During the period between 1781 and the Civil War in 1789, Judges used to
preside over the American Courts and the Appellate Courts started functioning at a
latter stage. The period marks the beginning of the present system of courts in United
States. At present, the American trend is to accept the influence of Judges and to
permit jury trials to be waived by the accused. The modem American judicial system
consists of the following categories of courts for the administration of criminal
justice :—
1. The Supreme Court of United States.—The Supreme Court of United States is
the highest judicial institution in the hierarchy of American Courts. This Court
exercises appellate jurisdiction over the cases from State Courts which involve
violation of due process clause or any special problem of national interest or where
gross injustice is caused to a certain minority community.
2. Supreme Court of the States.—In each of the American State, there is a
Supreme Court. The functions of this Court are analogous to that of the High Courts
in India. The decision of this Court is final in criminal cases and an appeal from the
decision of this court lies to the Supreme Court of United States in special
circumstances. The Court has both, original and appellate jurisdiction.
3. Superior District or Circuit Courts.—These courts try felonies and indictable
misdemeanours and hear appeals from subordinate courts.
4. The Lower Trial Courts.—These courts include the county and municipal
courts trying misdemeanours.
5. The inferior Courts of local Magistrates.—They rank as the lowest courts in the
hierarchy of American courts. They also include Justices of the Peace trying
summary offences. The Justices of Peace often lack legal training.
Like United Kingdom, the system of trial by jury is a popular feature of the
American judicial system. In fact, the system of trial by jury is an expression of
democratic element in the administration of criminal justice. Some jurists, notably
Jerome Frank have criticised the jury system and characterised it as an agent of the
lawyers667 to win the case in their favour rather than decide question of fact. The jury
can disregard rules of evidence and instructions of the Presiding Judge and need not
record the reasons for its decision. Thus, there is no guarantee of real justice from
juries.

Plea Bargaining & Plea of NOLO Contendere

In U.S., the process of trial begins at the stage when the accused is required to
enter a plea. Arraignment is held in open Court and generally begins with a formal
reading of the indictment or charge. The accused is advised of his constitutional
guaranteed rights against self incrimination and the rights of counsel and protection.
The accused may plead guilty to the crime or to a lesser offence. The plea of guilty
to a lesser offence often results from plea bargaining on the advice of his defence
counsel. Where the counsel for the accused feels that the charges against his client
are so strong that it is unlikely that he will be found innocent by going through a
trial, he may bargain the plea with the prosecutor to accept guilt-plea for a lesser
charge and thus save the time and expenses of prolonged trial. The prosecutor
generally accepts the plea for a reduced charge.
It may be stated that more than 90% of the cases are settled in U.S. in this
manner. Once the plea-bargaining agreement has been reached, the prosecutor, the
defence counsel and the accused will appear before the judge and request him to
accept the plea of guilty to the lesser charge. In U.S.A. the accused is known as
'defendent'. If the judge is convinced that the plea is voluntary with no promises of
lesser sentence and is according to the true wishes of the accused (defendent), he
may accept the plea. However, the plea-bargaining is not accepted for capital
offences.
It may further be pointed out that in U.S. the plea of NOLO Contendere is also
available which means 'no contest'. It is not an admission of guilt but rather
'unwillingness to accept declaration of guilt' instead of going to trial. Under this plea, the
accused makes formal declaration that he is not going to contest with the prosecuting
agency the charge against him.668 This is why David Gordon has stated that Latin
word NOLO means "I do not chose it". The plea is also called as Plea of Nalvult,
which in literal sense means "I do not wish to contend”. It is treated as an expression
of implied confession or a quasi-confession of guilt.669 The plea is used by an
accused person to avoid trial and expenses and it is the discretionary power of the
Court to grant or reject the plea.
Prosecuting Attorney (Prosecutor)
The 'prosecutor' has to play a very important role as an official of the court in
the American criminal justice system. The main duties of Prosecutor are to organise
and present evidence before the Court and determine whether a particular case
should be prosecuted or compromised. The Prosecutor also proposes to the Judge or
the jury, the appropriate penalty which may be awarded to the offender in a
particular case. The Prosecutor or the 'Prosecuting Attorney' has four main functions
to perform, namely, (1) to investigate the crime; (2) to determine as to who shall be
prosecuted; (3) to prepare cases for trial; and (4) to act as an advocate while the case
is being tried. Thus, he plays a quadruple role of an investigator, magistrate, solicitor
and the advocate at one and the same time.
The office of the Prosecutor being political in nature, no specific qualifications
are prescribed for this position. Generally, such official must be old enough to vote,
resident of the area of jurisdiction and a member of the bar. This position is usually
sought as a stepping stone to higher political office.670 The Prosecutor being an
elective official, often has to oblige his supporters and friends who helped him in
668 State Exrel Clark v. Adams, 363 US 807.

669 AIR August 2006 (Journal Section).
670 Taft Donald : Criminology (4th Ed.), p. 358.
getting elected to this post. That apart, he cannot afford to overlook the interests of
those politicians who are in power as they may be useful to secure him further
chances for political advancement. The political nature of this office does more harm
than good to the community and therefore, it is difficult to agree that it is a forward
step in the American judicial system. Prosecutor's discretionary powers as to when to
comprise a case or when to change the nature of the charge or when to secure a plea
of guilty to a lesser offence than that committed, necessarily leaves much room for
corruption and miscarriage of justice. The personal attitude and likes and dislikes of
the Prosecutor also influence the discretion of the prosecuting attorney to a
considerable extent. The recent American trend, however, is to restrict the
discretionary powers of the Prosecutor and to divest him of his civil duties so that he
can concentrate on his judicial functions. Donald Taft suggests that extension of the
power of the State Attorney-General over both police and prosecution, is a possible
solution to restrict the discretionary powers of the Prosecutor.
Video-Conferencing in American Courts
Now a days video-conferencing is being extensively used in U.S.A. in a
number of court proceedings including various pre-trials, civil and criminal
proceedings, sentencing, appearances of witnesses and prisoners in trials,
arraigments, bankruptcy hearings and appellate court arguments, particularly where
compelling geographic and logistical conditions exist. For this purpose, the Federal
Rules of Criminal Procedure were amended in September 2001 which permitted the
undertrials/defendant's initial appearances to be conducted by video-conferencing
instead of requiring their physical presence in the court. These amended rules came
into force on December 1, 2002.
The use of video-conferencing techniques in court proceedings has been found
to be extremely useful for saving personal time and travel costs which outweighed
the cost of purchase and operation of video-conferencing systems. The video-
conferencing technology save the prison time in transporting prisoners to court and
also eliminates security risks. The system has become quite popular in the most
courts of Illinois, Taxas etc. According to Judge Michael. M. Mihm (C.D. HI) "video-
conferencing means people don't have to take a whole day to travel, and for
prisoners, we don't have security and transportation concerns."671
Criminal Law Courts in Ancient India
The present set up of Courts for the administration of criminal justice in
India is essentially a legacy of the British rule. This however, does not mean that
India had no courts of its own prior to the British rule. It is on record in the annals of
Indian legal history that a well organised system of courts operated in India672 even
before the advent of British in this country. The Hindu period in India witnessed an
era when the administration of criminal justice was personally supervised by the
King. Some Hindu rulers, however, preferred to appoint special judicial officers
called Mahadandadhikari or Nayayamimansak or Dandadhish for imparting justice in
criminal cases. An Appeal in such cases lay with the King who was the final judge to
alter the sentence or order acquittal of the offender or grant him royal pardon.
According to ancient law-givers, punishing the criminals and resisting
perpetration of crime was a solemn duty (Dharma) of the King, because he took from
671Computer technology has also been adopted in Australian courts as a 'e-court strategy' w.e.f.
December, 2002.
' 1. Sen P. K. : Penology Old & New 1943, pp. 110-11.
his subjects the price of giving them protection in the shape of rent, taxes and duties.
The King and his officers were supposed to hunt out the criminals whether or not
any complaint was made, so that law-abiding subjects could lead a secured and
peaceful life.
In Vedic age, society was composed of patriarchal families and the Grahapati
i.e., the head of the family, decided all matters of disputes relating to household.
Manusmriti empowered a Grahapati to correct his wife, son, servant, pupil and a
younger brother with rope or a small shoot of a cane on the back part of the body but
not on a senstive part by any means.673 Vedic literature nowhere mentions the King
as a judge either in civil or criminal cases.
The Dharamsutras and the Kautilya's Arthashastra, however, present a more
detailed and well developed system of criminal adjudication prevailing in their time.
The Nitishastra mentions King as the fountain of justice and it was his sacred duty to
punish the wrong-doers and if he flinched from discharging this duty, he was bound
to go to hell.674 Manu, the law-giver also mentions about the art of secret intelligence
practiced in his times for the prevention and detection of crimes. The King had his
own net-work of secret intelligence to keep himself informed about the nature and
incidence of crimes. He also awarded adequate punishment to the criminals.
The Kautilya's Arthashastra, written around 310 B.C., is a monumental work
which provides systematic information about crime investigation and punishment of
offenders as also crime-control devices. Throughout this period, the administration
of criminal justice was the sole responsibility of the ruler who sought assistance from
his deputies to apprehend and punish the offenders. However, a regular hierarchy of
criminal courts was yet to evolve in the indigenous Hindu kingdoms.
Criminal Court's of Medieval Period
During the reign of Moghuls, the Nawab or Nazim was incharge of the criminal
law administration and was to decide cases punishable with capital punishment.
Offences relating to property were generally decided by a subordinate judicial
authority called Darogah-Adalat-al-alia. Besides the Darogah,
673 Manusmriti XI, 324.

674 Vardachariar's : Hindu Judicial System (1946) p. 93.

there was another judicial officer called Fauzdar who was to try all criminal cases
excepting those punishable with capital sentence. The court of Fauzdar was known as
Faujdari Adalat. The Mohtassib was the petty police official who looked after the cases
of drunkenness, narcotics, etc. There were Kotwals who were to ensure maintenance
of law and order throughout the territory. The Qazi administered sacred law for
Muslims. He decided disputes concerning family law and marriage, divorce,
inheritance and also criminal cases relating to Muslims.
The Mohammedan criminal law was mainly expounded by Hidaya and Fatwa.
Hidaya contained the general principles of Muslim criminal law whereas Fatwa-
Alamgiri was a collection of case law for the guidance of criminal law courts. The
'Fatwa' of the Mohammedan Law officer called kazi, had a great significance in the
administration of criminal justice even during the early period of British rule in
India. The system continued till the end of eighteenth century.675
Criminal Courts of British India
With the advent of British rule in India, the administration of criminal justice
passed on to the British administrators. They carefully watched the working of the
then existing Moghul system of courts and gradually substituted it by their own
judicial plans modelled on English pattern. Their sole object was to remove the
irrationalities of the Moghul criminal law courts and infuse confidence among the
natives by offering them an opportunity for a fair and impartial trial. The criminal
justice system introduced by the British rulers in India was a queer mixture of Anglo-
Saxon judicial principles and the available traditions and practices of the indigenous
people. Undoubtedly, the system of criminal law courts innovated by the British
rulers in India worked satisfactorily for about a century and it proved so successful
that even after the Indian Independence almost the same judicial arrangement has
been retained with minor changes here and there.
Criminal Court of India after Independence
The modem judicial system operating in India for the administration of
criminal justice comprises the following categories of courts :
1. The Supreme Court of India.—It is the highest court in the country's judicial
system. So far criminal cases are concerned, the Supreme Court has only appellate
powers2 that too in rare cases. It may, however, be stated that there is a move to
enlarge the appellate jurisdiction of the Supreme Court in criminal cases. There is
also a demand that the Supreme Court of India should exercise appellate jurisdiction
over the cases where the accused has been sentenced to a term of imprisonment for
ten years or more. The Supreme Court also has writ jurisdiction for the enforcement
of fundamental rights.3
The new trend is that the Supreme Court has started awarding monetary
compensation to the victims of abuse of criminal law process, particularly in cases of
'mstodial torture1 or illegal detention2 or abuse of power by the criminal law
administrators violating the provisions of Article 21 of the Constitution relating to
right to life and liberty of the victims. This is indeed a welcome step in the area of
criminal justice system.
Yet another significant development in the functioning of the Supreme Court in
dispensation of criminal case is its activism in warning the erring governments
against abuse of power and authority. Highlighting the activist role of the Supreme
675 Dr. Paranjape N. V. : Indian Legal And Constitutional History (6th Ed. 2006) p. 179.
2. Article 134 of the Constitution of India.
3. Article 32.

Court, Justice Ganguly of the Court, who was probing into the 2-G spectrum scam
case, observed, "courts are now widening their jurisdiction and becoming the
institutions of governance and are not merely as arbitrators of disputes." Lawyers
and judges are making news everyday. The Apex Court has to exert-judicial pressure
on the government and its ministers/officials to mend things3 which are blatantly
wrong and illegal and which are severely embrassing the government. Calling this
expansion of judicial jurisdiction a major "transformation", Justice Ganguly said this
"development should percolate into law which would help in development of rule of
law in this country.
2. The High Courts.—There is a High Court for each State or one or more
States.4 It is the highest judicial institution within the State. The conditions and
qualifications for appointment of Judges of a High Court are contained in Articles
217-222 of the Constitution of India. Each High Court has original as well as
appellate jurisdiction.5 The High Court has the power to issue certain writs to any
person, authority or even the Government within its territorial jurisdiction for the
enforcement of any of the rights conferred by Part III of the Constitution of India.6
The Court also has the power of superintendence over all subordinate courts and
Tribunals situated within its territorial jurisdiction.7
3. The Court of Session.—There is a Court of Session in each District which is
presided over by a Sessions Judge and one or more Additional Sessions Judges. In
certain cases, Assistant Sessions Judges are also appointed to work in the Sessions
Court. The Sessions Judge or the Additional Sessions Judge is empowered to pass
any sentence authorised by law but any sentence of death awarded by him must be
confirmed by the High Court to which he is subordinate.8 The Assistant Sessions
Judges, however, are not competent to
1. SAHELI v. Commr. of Delhi, AIR 1990 SC 516 ; Nilabati Behera v. State of Bihar, AIR 1993 SC 1134;
Madina v. State of Rajasthan, 2001 Cri LJ 4484 (Raj.); D.K. Basu v. State of West Bengal, AIR 1997 SC
610 etc.
2. Rudal Shah v. State of Bihar, AIR 1983 SC 1986 ; Sebastain M. Hongray v. Union of India, AIR 1984 SC
1026 ; Bhim Singh v. State of J. b K., AIR 1985 SC 677; Joginder Kumar v. State of U.P, 1994 Cri LJ
1981 (SC); State of U.P. v. Kishna Master & ors., AIR 2010 SC 3071 etc.
3. This was with reference to recent. 2G spectrum Scam involving Telecom minister A. Raja (Feb.
2011) and illegal appointment of RJ. Thomas as Chief of the Central Vigilance Commission
dispite his alleged involvement in corruption case in Kerala (Feb. 2011) (Justice Ganguly's
speech at the 10th Moot Court competition organised by Amity University, Delhi dt. 15-3-2011).
4. Article 214 of the Constitution of India.
5. Article 225 as also Sections 194, 374, 375 and 377 of the Code of Criminal Procedure, 1973.
6. Article 226.
7. Article 227.
8. Section 28(2) of Cr. P.C., 1973.
award a sentence of death, imprisonment for life or imprisonment for a term
exceeding ten years.676 The Sessions Court exercises both original and appellate
jurisdiction. The appointments of the Sessions Judges, Additional Sessions Judges
and Assistant Sessions Judges are made by the High Court of the concerning State
with a view to maintaining the independence of the judiciary.
4. The Courts of Judicial Magistrate.—There are a number of courts of Judicial
Magistrates functioning throughout the District. These Courts are set up by the State
Government in consultation with the High Court. The Judicial Magistrates are
appointed by the High Court and by the State Government.677 The High Court may,
676 Section 28(3).

677 Section 11 (1) and (2).

whenever it deems necessary or expedient, confer the powers of a Judicial Magistrate
of the first class or of the second class on any member of the judicial service of the
State functioning as a Judge in a civil court.678
In each District not being a Metropolitan area, the High Court shall appoint a
Judicial Magistrate of the first class to be the Chief Judicial Magistrate.679 The High
Court may also appoint any Judicial Magistrate of the first class as an Additional
Chief Judicial Magistrate in a District.680 The High Court may designate any Judicial
Magistrate of the first class in any sub-division as the Sub-Divisional Judicial
Magistrate. There are a number of Judicial Magistrates of the second class as Special
Judicial Magistrates functioning under the Chief Judicial Magistrate681 for the
administration of criminal justice in the Division.
It must be stated that in the Code of Criminal Procedure, 1973, the provisions
of the old Code relating to the Presidency Magistrates in the Presidency Towns of
Bombay, Calcutta and Madras have been retained but in a different form. The Code
provides for the establishment of Courts of Metropolitan Magistrates in Metropolitan
areas instead of Presidency Magistrates.682 Metropolitan Area, for the purpose of the
Code of Criminal Procedure means any area in the State comprising a city or town
whose population exceeds one million and is so declared by notification of the State
Government.683 It therefore, follows that a city or town having its population over one
million does not automatically become a 'Metropolitan Area' unless it is so declared
and notified by the State Government.
The High Court shall appoint a Chief Metropolitan Magistrate in each
Metropolitan area. It may also appoint an Additional Chief Metropolitan Magistrate.
The powers and functions of the Chief Metropolitan Magistrate and
Additional Chief Metropolitan Magistrate are analogous to those of Chief Judicial
Magistrate and Additional Chief Judicial Magistrates of the Districts.684 Similarly, one
or more Special Metropolitan Magistrate may be appointed in the Metropolitan area
who have the same powers as Special Judicial Magistrates of the second class in the
district.685
The sentencing powers of the aforesaid categories of Magistrates are contained
in Sections 28 to 35 of the Code of Criminal Procedure, 1973. They are as follows
:—
Class of Magistrates Sentencing power
678 Section 11 (3).

679 Section 12 (1), The function of the Chief Judicial Magistrate is to guide, supervise and control
other Judicial Magistrates in the District and to decide important cases himself. He also hears
appeals against convictions by Magistrates of the second class. The allocation of judicial work to
Magistrate is also done by the CJM.
680 Section 12 (2).
. 6.'Section 13.
682 Sections 16 to 19.
683 From the commencement of the Criminal Procedure Code, 1973 the Presidency towns of
Bombay, Calcutta, Madras and the dty of Ahmedabad shall be deemed to be a Metropolitan
Area—Sec. 8(2), Cr. P.C., 1973.
684 Section 17 (1) and (2), Cr. P.C., 1973.
685 Section 18.
(a) Court of Chiefhttps://t.me/LawCollegeNotes_Stuffs
Judicial Magistrate Imprisonment upto three years, fine upto
and Chief Metropolitan Magistrate. Rs. 10,000.
(b) Court of Magistrate of the First Class
and Metropolitan Magistrates. Imprisonment upto one year, fine upto
(c) Court of Magistrate of the Second Rs. 3,000.
Class.
Imprisonment upto seven years, fine
without limit. The Criminal Law Courts 395
Besides the criminal courts mentioned above, the President of India and the
Governors of the State have also been conferred certain judicial powers of sentencing
the convicted persons. They have power to grant pardon, reprieve, respite or
remission of punishment or to suspend, remit or commute the sentence in certain
cases.686
In addition to the Judicial Magistrates, Executive Magistrates are also appointed
by the State Government in each district. One of the Executive Magistrates is
appointed as the District Magistrate and all the Executive Magistrates except
Additional District Magistrate are subordinate to him. These Magistrates belong to the
executive branch of the Government and therefore, their appointment is not controlled
by the High Court. The functions assigned to executive Magistrates include trial of
offences involving preventive action, disputes concerning immovable property and
offences relating to public nuisance and breach of peace.687
The Nyaya Panchayats
Though the age-old concept of Punch Parmeshwar which was prevalent in ancient
India collapsed completely during the British rule but the institution of Panchayat as
an organ of local’ self-government still survived. After the Indian Independence, the
framers of the Constitution of India incorporated a provision relating to Panchayati-
Raj in Article 40 of Part IV of the Constitution. In pursuance of this directive, many
States in India enacted laws investing limited judicial powers to Nyaya Panchayats to
decide petty civil and criminal cases.
Theoretically, the involvement of Panchas in the criminal justice administration
may appear to be a sound principle as a matter of policy but it does not seem
expedient to entrust judicial functions to the laymen who are completely ignorant
about the technicalities and intricacies of law and its procedure. Commenting on this
point Mr. Justice Somasunderam of the High Court of Madras in Venkatachala v. The
Panchayat Board, Ethanu688 observed, that Panchayat Courts ought not to be invested
with criminal jurisdiction because they seem to be carried away by the local politics
and communal feelings that they happen to entertain against persons.
Lok Adalats
Any discussion on criminal justice system in India will remain incomplete
without a reference to the institution of Lok Adalat. The phraseology 'Lok Adalat'
comprises two words, namely, 'Lok' and 'Adalat' the former expressing the concept of
public opinion while the latter denoting the accurate and thorough deliberation aspect
of decision making. Both these aspects have been blended judiciously in the
institution of Lok Adalat as envisaged by Sections 19(1) and 20(4) of the Legal
Services Authorities Act, 1987. Judicial officers are integral part forming the
composition of Lok Adalat and the principles of justice, equity and fair play are the
guiding factors for decision based on compromises to be arrived at before such
Adalats.
The Lok Adalat is mainly concerned with two-fold functions. Firstly, it provides
people a quick, easy, accessible, non-technical sympathetic and homely forum for
resolution of their disputes and, secondly, it tackles the menace of what is known as
'docket explosion' i.e., piling number of pending cases which become unmanageable
for the regular courts to handle effectively.
The credit of originating this system for speedy justice to common man goes to
Mr. Justice P. N. Bhagwati, the former Chief Justice of the Supreme Court of India
who started Lok Adalats in the State of Gujarat during early seventies. This was
followed by the States of Maharashtra, Kerala, Andhra Pradesh, Madhya Pradesh,
686 The President of India has been conferred these powers by Art. 72 of the Constitution of India
while Governors of the States have similar powers under Art. 161.
687 Sections 107 to 124 and 129 (Preventive action); disputes as to immovable property (Secs. 145 to
148); public nuisance (Secs. 133 to 143) apprehended danger from nuisance (144 & 144A) of the
Code of Criminal Procedure, 1973.
688 AIR 1958 Mad. 388.
Union Territory of Delhi, etc. which introduced Lok Adalats for urban and rural areas.
These Adalats decide criminal, civil and revenue cases pending before the law courts
by mutual consent of the parties. Without going into the procedural details of the
working of Lok Adalat, suffice it to say that it has made substantial contribution in
taking justice to doors of common man and providing him speedy justice. On the
criminal side, the offences compoundable under Section 320 (1) and (2) of the Code
of Criminal Procedure 1973689 are disposed of by the Lok Adalat through a
compromise between the parties.
Section 20(1) of the Legal Services Authorities Act, 1987 lays down that a Court of
law where a case is pending may transfer the case to Lok Adalat for
settlement when the parties to the case have made a joint application indicating their
intention to compromise the matter. Thus, the section requires parties to apply before
District Authority and not Lok Adalat. The parties to such a case shall be under no
obligation to attend the court concerned during the period intervening between the
filing of the joint application and disposal of the case by the Lok Adalat. However,
the Legal Services Authorities Act, 1987, as amended by the Amending Act of 2002
now enables parties to file their case in Lok Adalat directly, if they so desire.
In Madhya Pradesh, the first Lok Adalat was held at Bilaspur on April 13, 1986
and out of the total 797 cases disposed of by this Adalat as many as 226 were
criminal cases. In all about one hundred and eighty three Lok Adalats have been
organised in the State upto January 2006 each disposing of nearly 260 criminal cases
on an average. It is thus evident that the institution of Lok Adalat is expected to play
a crucial role in the administration of criminal justice in time to come. More recently,
Lok Adalats are being arranged inside the prison institutions for providing undertrial
prisoners access to speedy justice. This is indeed a step in the right direction which
will help considerably in reducing the number of undertrial prisoners who are
languishing in different jails for several years.
Lok Adalats are now having a statutory690 foundation. Supreme Court has
reiterated time and again that speedy justice specially in criminal matters, is the
essential component of the fundamental right to life and liberty enshrined in Art. 21
of the Constitution of India. The procedure of Lok Adalat inherently embodies the
concept of speedy trial and it can be seen as one of the most efficacious legal
instruments of upholding speedy justice. Widening the criminal jurisdiction of Lok
Adalats would therefore, be a significant step in the direction of fulfilment of the
constitutional mandate contained in Article 21.
The Legal Services Authorities Act, 1987
The Parliament enacted a comprehensive law called the Legal Services
Authorities Act, 1987, (Act No. 39 of 1987) to constitute legal services authorities to
provide free and competent legal services to the weaker sections of the society in
order to ensure that opportunities for securing justice are not denied to any citizen for
reason of economic or other disabilities. The Act further requires that Lok Adalats
should be organised to ensure that the operation of the legal system promotes justice
on the basis of equal opportunity. The main objectives of the Act are :—
(1) to secure free and competent legal services to weaker sections ;
(2) to organise Lok Adalats for speedy disposal of case ;
689 Section 320 Clause (1) contains offences which are compoundable by parties while clause (2)
contains offences which are compoundable with the permission of the Court. For details see
tables incorporated in Section 320 as amended by the Cr.P.C. (Amendment) Act, 2008 (5 of 2009)
vide Section 23 (i) and (ii) w.e.f. 31-12-2009.
690 Vide Section 22-B inserted by the Legal Services Authorities (Amendment) Act, 2002
w.e.f. 12-6-2002.
(3) to ensure that operation of legal system promotes justice on the basis of
equal opportunity. The Act is undoubtedly a progressive step towards
the fulfilment of the directive principle relating to legal aid to poor as
contemplated by Art. 39-A of the Constitution.
Section 22-B of the Legal Services Authorities Act, 1987, which is inserted by
Legal Services Authorities (Amendment) Act, 2002, provides for establishment of
Permanent Lok Adalats exercising jurisdiction in respect of public utility services. As
provided in Section 22-C, the Permanent Lok Adalat shall have jurisdiction in respect
of compoundable offences under any law and its pecuniary jurisdiction extends to 10
lakh rupees. It therefore, follows that the Permanent Lok Adalat does not have
jurisdiction to try non-compounded cases.
SC/ST (Prevention of Atrocities) Act, 1989
There is yet another Act, called the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, 1989 which provides that the State Government shall
with the concurrence of Chief Justice of the concerned High Court, by notification in
the official Gazette specify for each district a Court of Session to be a Special Court691
to try offences of atrocities committed by the members of other communities against
the persons belonging to Scheduled Castes and Scheduled Tribes. The provisions of
Section 438 of the Code of Criminal Procedure, 1973 shall not apply for persons
committing an offence under the Act. But the High Court may in exercise of its
inherent power pass such orders as may be deemed necessary to give effect to prevent
abuse of the process of the Special Court or otherwise to secure ends of justice.692 Thus
the Act seeks to protect the members of SC/ST from atrocities by high castes by
providing them easy access to criminal justice system. The working of the Act over
the years has, however, shown that more often than not, it is being misused by the
beneficiaries to avenge their grudges against the upper castes and therefore, there is a
move to scrap the Act or atleast amend it suitably.
Law Relating to Bail
The law of bail is an integral component of the criminal law procedure and the
right to bail is subject to statutory stipulation. The Code of Criminal Procedure, 1973
seeks to liberalise the bail provisions. 'The bailable and not bailable offences are
precisely classified. Though bail can be granted in both categories of offences, the
grant of bail in non-bailable offences if by way of concession to the accused which
could be awarded by the court at its discretion in order to protect the "interests of
Justice".
Section 440(1) of the Code provides that the amount of bond for release of an
accused person on bail shall be fixed with due regard to the circumstances of the case
and shall not be excessive. Sub-Section (2) further empowers the High Court or the
Court of Sessions to direct that the bail required by police officer or magistrate be
reduced. Anticipatory bail may also be granted under such conditions as provided for
in Section 438. Section 440(1) read with Section 441 empowers the trying magistrates
to have the discretion whether the amount of bond or bail could be on the personal
bond of the accused himself or with sureties. Section 441-A693 further provides that
every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety
691 Sec 14 of the SC & ST (Prevention of Atrocities) Act, 1989.

692 Section 18.
693 New Section 441-A inserted by Criminal Law (Amendment) Act, 2005. Vide Section 39 (w.e.f.
23-06-2006).
including the accused, giving therein all the relevant particulars.

The process of granting or refusing bail entails a meticulous judicial exercise so
as to serve the twin object of social defence and individual freedom.
The judicial discretion in granting or refusing bail should therefore, be exercised with
caution within the parameter of law and not caprice. The scope of judicial discretion
is, however, limited when a person is accused of a bailable offence. But when a
person is accused of a non-bailable offence, his release on bail leaves wider scope for
exercise of judicial discretion keeping in view the gravity of offence, the nature of
evidence on which the prosecution case rests, and reasonable possibility of presence
of accused or suspect during trial.
The mechanical approach of judges in the exercise of their discretion in bail
proceedings has been vehemently criticised by the Supreme Court in Hussainara
Khatoon v. State of Bihar694 wherein the Court, inter-alia, observed : "...The system of
bail operates very harshly against the poor and it is only the non-poor who are able to
take advantage of it by getting themselves released on bail".
While the Code of Criminal Procedure recognises the right of an accused person
to be released on bail or the facility to the accused to remain on bail during trial, it
casts a duty on the accused to attend the court regularly for speedy trial and not to
tamper with prosecution witnesses.695 Judicial discretion in granting bail under Section
439(1) should be guided by two paramount considerations, namely, likelihood of the
accused fleeing from justice and his tampering with prosecution evidence. It is for
this reason that Section 439(2) empowers the High Court or the Court of Session to
direct any person, who had been admitted to bail by the Magistrate's Court, to be
committed to custody if it thinks it appropriate to do so.
Sometimes the prosecution agencies unnecessarily oppose the anticipatory bail
application of the accused on the ground that his presence in custody is necessary for
making a search and recovery of documents in his/her presence. The Supreme Court
in Harsh Sawhney v. Union Territory, Chandigarh,696 rejected the plea of the prosecution
on this ground and directed that appellant shall appear for interrogation by the police
whenever reasonably required, subject to his/her right under Art. 20(3) of the
Constitution.
The bail system as administered by courts of law however, reveals that the "non-
poor" accused even in sensational criminal cases are able to take advantage of bail
much beyond what they deserve.697
Looking at the long pendency of cases and the number of undertrial prisoners
multiplying each day, it is advisable to liberalise the law relating to bail. Some useful
suggestions698 in this regard may be as follows :—
(1) Where the Court is satisfied after taking into account the information
placed before it, that the accused has root in the community and is not
likely to abscond, it need not insist on monetary bond and may safely
694 AIR 1978 SC 1675 (1681).

695 Gurcharan Singh v. Delhi Administration, AIR 1978 SC 179.
696 AIR 1978 SC 1016.
697 In the infamous 'Tandoor case', Sushil Sharma, the ex-Delhi Youth Congress President and
prime suspect in the grueso ne murder of Naina Sahni was granted anticipatory bail by Session
Court, Madras cn 7th July 1995 despite Delhi Police desperately trying to apprehend him.
North India's notorious poacher and animal-skin smuggler Sansar Chand who was involved in
several cases relating to wild-life offences was arrested by Delhi police on July 17, 1995 but was
released on bail the very next day by the Metropolitan Magistrate despite his offences related to
over 30,000 skins of wild animals.
698 M.B. Sardai : 'Procedural Reforms'—Criminal Law All India Seminar Papers on Judicial
Reforms (1998) p. 169.
release the accused on a personal bond.

(2) The offences punishable for ten years imprisonment or below, be
made bailable by the Court with stringent conditions. It will not only
reduce the number of bail applications but also reduce the number of
undertrial prisoners.
(3) The default clause provided under section 167 of Cr.P.C. making it
mandatory to grant bail after the expiry of 60/90 days from the
production of arrestee before the Magistrate, should be deleted and
instead the provisions of Section 173(1) of Cr.P.C. which requires
completion of the investigation expeditiously, should be scrupulously
followed. This will eliminate the possibility of charge-sheet not being
deliberately filed till 60/90 days in order to make the accused entitled to
be released on bail.
(4) Bail should not be refused in cases where there is on record such
material which shows that the accused himself received injuries and has
a valid case for right of private defence.
(5) Bail should normally be granted in case where the arrestee had not
used a weapon or participated actively in the case.
More recently, the Supreme Court which had twice sent back murder accused
Pappu Yadav, (Now RJD's Member Parliament from Madhepura Lok Sabha seat,
Bihar) to jail, on 24th September 2004, asked him why the fresh bail given to him by
the Patna High Court Judge R.S. Garg should not be cancelled. The Bench of Justices N.
Santosh Hegde, Justice, S.B. Sinha and Justice A.K. Mathur, had ordered lodging Pappu
Yadav in the prison instead of Patna Medical College Hospital while taking serious
note of the misuse of facilities by the accused on the pretext of ill-health.
Agitated over the release of an accused in a heinous crime of brutal murder
which is punishable with life-term or death sentence, the Bench had taken note of
'gravity of offence' and also allegations of tampering with the witnesses by Pappu
Yadav during the period he was in jail, the Court reiterating the law on grant or
refusal of bail, cautioned the High Court of Patna to exercise its discretion in a
judicious manner and not as a matter of course.
The Apex Court noted that though an accused has a right to make successive
applications for grant of bail, the Court concerned has a duty to consider the reasons
and grounds on which earlier bail applications were rejected. Finally disposing of the
bail applications of Pappu Yadav in October, 2006, the Supreme Court directed that
no Court should entertain his bail application any further and he has to remain in
custody during the entire trial period.
Role of Investigating Agencies
Proper administration of criminal justice is not only in the hands of judiciary
alone. The investigating agencies play an important role in the criminal justice
delivery system. Delay in examining the witnesses and deciding cases results in
miscarriage of justice. This delay may be due to ineffective investigation by the police
and lack of motivation among Public Prosecutors who are burdened with large
number of cases. In some cases the investigating officer is reported to have submitted
the charge-sheet even before completing the investigation. This weakens the case
which ultimately results in acquittal of the accused. Therefore, there is need to revamp
the investigating mechanism.
The statutory power of police to investigate cognizable offences699 should not be
interfered with by the courts, the courts are not justified in obliterating the track of
699 These powers are certained in Section XII (Sections 154 to 175) of Cr.P.C. 1973.
investigation and it cannot direct the police as to how investigation in a particular

case is to be conducted.700
The Court of Criminal Trial
Offences may either be cognizable or non-cognizable depending on their
gravity. Cognizable offences are more serious than non-cognizable offences and
police may arrest without warrant in such cases and also initiate investigation on their
own without obtaining an order from the competent Magistrate. In case of non-
cognizable offences, the police cannot make arrest or initiate investigation without an
order of a Magistrate having power to try case or commit the case for trial.701
As regards search and seizure by the police officer, the Code of Criminal
Procedure provides that it can be done after search warrant is issued by the competent
Magistrate. In certain cases the police officer may, however, conduct search or
seizure even without a search warrant from a Magistrate.702
A criminal case may come before a Magistrate for trial703 either on a private
complaint or on a police report. The Magistrate may take cognizance of an offence on
a private complaint if in his opinion there is sufficient ground for proceedings. If the
case appears to be a summons case, he shall issue summons for the attendance of the
accused and if the case is a warrant case, he may issue a warrant causing the accused
to be brought or to appear before him, or if he has no jurisdiction himself, then before
competent Magistrate having the jurisdiction.704 This is called "issuance of process" by
the Magistrate. No summons or warrant shall be issued against the accused unless a
list of prosecution witnesses has been filed by the complainant. The summons or warrant
so issued shall be accompanied by a copy of such complaint.705 The Magistrate may
dispense with the personal attendance of the accused and may permit him to appear
by his pleader.706 Petty offences may be disposed of summarily by the Magistrate
under Section 260 of the Code of Criminal Procedure provided the fine for the
offence complained of is punishable upto rupees one thousand.707
700 Stats of Haryana v. Bhajan Lai, 1992 Supp. (1) SCC 335.
701 Sections 155, and 156, Cr. PC.
702 Section 165.
703 The detailed procedure for trial of warrant case by Magistrate is contained in sections 238 to
250 of the Criminal Procedure Code, 1973 and for summons cases in sections 251 to 260. The
procedure for summary trial is laid down in sections 260 to 265 of the Code.
704 Sections 204.
705 Section 204(3).
706 Section 205.
707 Section 206 (1).
In case the proceedings have been instituted on a police report, the Magistrate
shall, without delay, furnish to the accused free of cost a copy of police report, F.I.R.,
the statements recorded of all the persons whom the prosecution proposes to examine,
confessions and statements recorded under section 164 of the Code and any other
document or relevant extracts thereof forwarded to the Magistrate by the police
officer.
Trial Proceedings
The trial proceedings in a Magistrate's court are adversarial wherein the
prosecutor conducts the prosecution case and the accused usually has his own defence
counsel. At the commencement of the trial the accused is brought or directed to
appear before the Court. After ensuring the attendance of the accused the copies of the
papers of the case are furnished to him.708 Thereafter, the Magistrate frames the charge
after hearing the parties.709 The charge is then read over to the accused. If the accused
pleads guilty, the magistrate shall record the plea and may in his own discretion
convict the accused710 or remand him to custody in order to make further inquiries or
may commit the accused to Court of Session.711
However, where the accused does not plead or refuses to plead or claims to be
tried, then in that case a date usually not earlier than a period of two weeks from the
date of the commencement of the trial712 is fixed for prosecution evidence. On the date
so fixed, the prosecution proves its case. The witnesses are sworn, examined by the
prosecution, cross-examined by the accused or his defence counsel and re-examined
by the prosecution.
After the prosecution evidence, the Magistrate examines the accused generally
on the points which are forthcoming against him on the basis of evidence and the
accused is given an opportunity to defend himself.
When the examination of the accused is over, he is asked to enter into defence.
The arguments of both the parties are heard by the Magistrate and the case is either
reserved for judgment or the judgment is pronounced the same day In case the
accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of Section 360,713 hear the accused on the question of sentence,714 and then
pass the sentence on him according to law.
The object of Section 235(2) is to extend an opportunity to the convicted person
to bring to the notice of the court such circumstances as may help the Judge in
awarding an appropriate sentence having regard to the personal, social and other
circumstances of the case.715 Hearing on the question of quantum of punishment is
mandatory at the sentencing stage so that the humanist principle of individualising
punishment to suit the offender and his circumstances is best
708 Section 173.

709 Section 228.
710 Section 229.
711 Section 209.
712 Section 230.
713 Section 360 Cr PC contains provision relating to release on probation of good conduct
or after admonition.
714 Section 235(2).
715Tar I ok Singh v. State of Punjab, 1977 Cri LJ 1139 (SC).
served by hearing the accused on the sentence proposed to be imposed upon

him.716
In Santa Singh v. State of Punjab,717 the Supreme Court held that the hearing
contemplated by Section 235(2) of the Code of Criminal Procedure, 1973, is not
confined merely to hearing oral submissions but is intended to give an opportunity to
the prosecution as well as the accused to place before the Court facts and material
relating to various factors which have bearing on the question of sentence and if they
are contested by either side, then to produce evidence for the purpose of establishing
the same. However, the Court should see that this provision relating to hearing of
parties on the question of sentence is not misused and turned into an instrument of
delaying the proceedings.
The two main significant features which deserve a special mention in relation to
the conduct of criminal trial in India may briefly be stated as follows :
Firstly, there is no room for jury service in the trial of the accused under the
Code of Criminal Procedure, 1973. Although the old Code contained provisions
relating to trial by jury but they were never actually invoked. The absence of
trial by jury in our criminal proceedings speaks of people's unshaken faith in
judicial institutions and respect for Taw' and its procedure.
Secondly, the role of police as a prosecutor has gradually declined so far
criminal trials are concerned. Till late, the prosecuting officer, invariably used to
be a police officer but the modem trend is against this practice. Now the services
of Public Prosecutors are utilised for conducting the prosecution rather than
assigning this task to a police officer. The obvious reason for this change is that
police being one of the interested parties in such cases, may be biased and
prejudiced against the accused and therefore, may be inclined to secure his
conviction. Under these circumstances, the accused may not get a fair trial. On
the other hand, if the prosecution is conducted by an independant agency like
the public prosecutor, he being an uninterested party, may have no personal
interest in the case. Therefore, he is bound to be impartial in course of trial and
this affords better opportunity of fair trial to the accused. It is for this reason that
prosecution branch has now been separated from the Police Department to
function as an indepedent prosecuting agency.
The object of Criminal Trials
The procedure laid down in the Code of Criminal Procedure, 1973, for the
conduct of trial in criminal proceedings primarily centres round three main
objectives—
(i) securing the accused person a fair trial in accordance with the
established principles of natural justice ;
(ii) eliminating delay in investigation and trial ;
(iii) making the procedure less complicated and within the reach of a
common man.
The old Criminal Procedure Code of 1898 had become out-dated and many
anomalies and ambiguities had crept in it due to conflicting decisions of the higher
Courts on procedural aspects of criminal law. Since the law of criminal procedure
deals with the process of application of penal law to the facts and circumstances of
particular case, it must be adopted to the changing needs of the society. Considered
from this standpoint, the Code of 1973, which came into force on 1st April, 1974 is
indeed a commendable piece of legislation inasmuch as it supplies a machinery for
716 Shiv Mohan Singh v. State, AIR 1977 SC 949.

717 AIR 1976 SC 2386.
The Code of Criminal Procedure, 1973

punishment of offences against the law of the land and provides a guideline to the
prosecuting agencies to conduct prosecution and to the magistracy to apply certain
principles and process while disposing of criminal trials.718 It shall be pertinent to
mention some of the most important changes that were introduced by the new Code of
Criminal Procedure, 1973. They are as follows :—
1. The committal proceedings are abolished with a view to eliminating
delay involved in preliminary inquiry before the commencement of the
trial of offences.
2. The offences punishable with imprisonment not exceeding two years
instead of six months as under the old Code are now triable summarily.719
3. The provision for compulsory stoppage of proceedings by a subordinate
court on the mere intimation from a party of his intention to move a
higher Court for transfer of the case has been omitted and the Code of
Criminal Procedure, 1973 now provides that the Court hearing the
transfer application shall not stay proceedings unless it is necessary to do
so in the interest of justice.
4. The Code of 1973 provides that the summons can be served by registered
post also.720 In petty cases, the accused can plead guilty by post and remit
the fine specified in the summons.
5. The facility of part-heard cases being continued by successors-in-office
which was available only in respect of Courts of Magistrates under the
old Code has now also been extended to the Court of Sessions721 in the
Code of 1973.
6. Provision has been made for legal aid to the indigent accused722 in the
cases triable by a Court of Sessions.
7. The scope for payment of compensation723 by the accused to the victim of
his crime has been considerably widened under Code of Criminal
Procedure, 1973.
8. The accused shall be heard on the question of sentence under Section
235(2) of the Code of Criminal Procedure, 1973. Similarly, the
prosecution shall also be given an opportunity to make
718 The Code has been amended by the Code of Criminal Procedure (Amendment) Acts, 1978, 2005
and 2008 to make it more effective.
719 Section 260(1) of Cr. P.C., 1973.
720 Section 69(1) and (2).
721 Section 9(5).
722 Section 304.
723 Section 357.
representation against insufficiency of punishment awarded to the convicted

person under this section.
9. A new provision relating to anticipatory bail under Section 437 has been
inserted in the Code of 1973.
Code of Criminal Procedure (Amendment) Act, 2005
The Cr.P.C. (Amendment) Act of 2005 which came into force with effect from
June 23, 2006, has inserted certain new provisions in the Code.
It may be noted that a new Section 25-A has been inserted in Cr.P.C. by the
Code of Criminal Procedure (Amendment) Act, 2005 where under a Directorate of
Prosecution is established in every State with a view to separating the prosecution
work from the police i.e. investigation agency. One more important feature of the
Cr.P.C. (Amendment) Act, 2005 is insertion of a new Section 436-A which specifies
maximum period for which an undertrial prisoner can be detained. This section
provides that where a person has, during the period of investigation, inquiry or trial
under the Code, for an offence (not being an offence punishable with death), has
undergone detention for a period extending upto one-half of the maximum period of
punishment specified for that offence, he shall be released by the Court on his
personal bond with or without sureties.
Functions of Criminal Law Court
An analysis of the working of the modern criminal law courts would reveal that
these courts perform four-fold functions, namely :
1. Redressal of the complainant who is wronged by the criminal act of the
offender ;
2. Punishment of offender ;
3. Fair and impartial trial of the accused with a view to ensuring justice in his
case. The major task of criminal courts is to make sure that innocent
persons are not unnecessarily punished while those guilty of some offence
do not go unpunished. In order to achieve this purpose, the courts are
inclined to point out the deficiencies and lacuna in prosecution and
defence version and both of them gradually try to remove those
shortcomings.
4. Maintenance of law and order in society by eliminating offenders through
punishment.
Deficiencies in Working of the Criminal Law Courts :
It must be stated that the scheme of courts adopted for the administration of
criminal justice in India is, by and large, satisfactory. It ranks as one of the most
efficient judicial systems of the world. As stated earlier, the changes introduced by
the Code of Criminal Procedure, 1973, have certainly improved the efficiency of
criminal courts and provided adequate relief to parties from the rigours of procedural
law of crimes. There are, however, certain pitfalls in the system which adversely
affect the cause of justice. These can be briefly summarised as follows :—
1. 'Justice delayed is justice denied' is one of the common slogan often used in
the realm of administration of justice. Delay in disposal of cases hampers the cause
of justice. There is greater need to eliminate delay in the trial of criminal cases. The
gravity of the offence is often lost with the passage of time. Therefore, criminal
justice system must provide for speedy and effective trial. Unless justice meted out is
speedy, society will be threatened with dangers of violence and lawlessness.
Delay in disposal of criminal proceeding may be attributed to the mal-
functioning of police, prosecution agency, legal profession, trial courts, appellate
courts, etc.
The former Chief Justice of India, P.N. Bhagwati in his speech on the Law Day
on November 26, 1986 observed :
"Our judicial system is creaking under the weight of arrears.
Arrears cause delay and delay means negating the accessibility of
justice in true terms to the common man."
Similar views were expressed by Nani A. Palkhivala in 1987. He attributed laws'
delay to legal profession who seek adjournments on most flimsy grounds. If the Judge
does not readily grant adjournments, he becomes highly unpopular.
Expressing his concern for delays in disposal of criminal cases, the Chief Justice
of India, Dr. A. S. Anand (as he then was) in his address at All India Seminar on
Judicial Reforms,724 inter-alia, observed :
"Failure of judiciary to deliver justice within a time-frame has
brought about a sense of frustration amongst the litigants....Human
hope has its limits and waiting for too long in the current lifestyle is
not possible. Some feel that judicial system has shown appearance of
cracks and fatigue but I am an optimist and do not share the view that
judicial system has collapsed or is fast collapsing."
2. There has been steady deterioration in the quality of the investigation and
also in promptness in concluding the investigation. The interval between the date of
lodging the FIR and the submission of the charge-sheet ranges from 4 to 6 months and
in some cases even beyond this period. Defective investigation because of innocent
person being booked along with the guilty or manipulated case diary not only delays
the trial but brings disrepute to police and results in consequential acquittal. The
failure of the police witness, especially the investigating police officer, to appear
before the courts on the dates fixed leads to postponement of trial for several days.
Yet another reason for delay in the trial is the failure of police to furnish the
accused with copy of police papers as required under Section 173(4).
3. Frequent adjournments sought by the prosecutors for one reason or the other,
also causes inordinate delay in trial of the case. The prosecutor takes adjournment
from one court on the plea of his being busy elsewhere, and the trial court has to
adjourn the case in the interest of justice and fair play. This is highly objectionable
but widely prevalent practice in the Indian Courts. No personal ground except
personal illness of the lawyer should be entertained for the adjournment of the case.
The lawyer's absence without an alternative arrangement should be treated as
misconduct. A Bench of the Supreme Court comprising Justice K.T. Thomas, R.P. Sethi
and S.N. Phukhan, JJ. in a case decided on May 4, 2001 said that a lawyer would be
guilty of committing professional misconduct if he seeks repeatedly adjournments in
the examination of witness present for hearing. Such dereliction, if repeated, would
amount to misconduct of the advocate concerned. The Apex court observed that "legal
profession must be purified from such abuses of court procedures. Tactics of
filibuster, if adopted by an advocate also amount to professional misconduct." The
Court expected the trial courts to be courteous towards witnesses. They cannot be
treated as less respectable to be told to come again and again just to suit the
convenience of the advocate concerned. In this case, adjournment was sought on the
ground that the advocate was not well, only to be later found that he was arguing in
another court.725
4. It is well known that lawyers and counsel for prosecution and defence are
724 The Seminar was organised by Supreme Court Advocates on Record Association on
4-6 December 1998 in New Delhi.
725 Supreme Court Pulls Advocates For Adjournments—India Today; dated May 4, 2001.
more interested in winning the case on their side rather than bringing out the truth
before the Judge. In the wordy-battle that ensues between the contesting lawyers, the
truth is completely lost sight of. This may result into acquittal of a guilty person or
conviction of an innocent man. Late American Judge Jerome Frank likened the role of
counsels in a criminal trial to a "cat, and mouse game" or a battle of wits rather than a
search for truth. Therefore, the need of the day demands that lawyers must accept
their obligation to make law serve the society.726 Chief Justice A.T. Vanderbilt of the New
Jersey once observed that the function of lawyers should be to search the truth and
not to indulge in mere battle of wits.
Commenting on the role of legal profession and lawyers in the judicial system,
Mr. Justice H.R. Khanna, former Judge of the Supreme Court of India observed, "the
legal profession is designed to be a profession of
service ..... Service to the community. The important duty of the profession is to
act as an interpreter, guide and faithful servant of the community".727 The lawyers
have an important role today in preserving confidence of the people in the
independence of judiciary thereby ensuring rule of law. Justice Khanna opined that
there are three pre-requisites for the prevalence of the rule of law. They are, a strong
Bar, an independent judiciary and an enlightened public opinion.
The miseries of clients and high cost of litigation must attract attention of
lawyers in a developing society like India where litigants are generally poor and
illiterate.
5. The present laws of crime and evidence have become out-dated and need to
be drastically changed in order to meet the new challenges of modem Indian society.
Many provisions of these outdated laws728 have become obsolete and need to be
suitably amended. In fact, the whole of the penal code needs to be restated. The law
of crime must be overhauled and redrafted keeping in view the needs of the present
day society. Though the Law Commission of India has done commendable work in
this field, the matter needs to be tackled by the Government on priority basis.
6. The miserable plight of clients at the hands of lawyers on the one hand and
poorly paid ministerial staff of the court on the other, has shaken the confidence of
common man in the institution of court which is an instrument of justice. The corrupt
practices and exploiting tactics of these professionals make it difficult for a common
man to get evenhanded justice in a law court.
7. The enormous increase in crime-rate has led to unprecedented rise in the
number of criminal cases. The large number of cases pending in criminal law courts
over-burden the work of magistracy to such an extent that the Judges hardly find
sufficient time to be devoted for each case. This has repurcussions on the quality of
judgment delivered by the courts. Needless to say that this is averse to the cause of
justice. Therefore, as an alternative, the system of 'Plea-bargaining' as prevalent in
United States, has been introduced in India by the Criminal Law (Amendment) Act,
2005. In this system, it is open to an accused person to plead that he is guilty of a
lesser charge and it is upto the Judge to accept the plea or reject it. Thus under 'Plea-
bargaining' system robbery may be reduced to theft, murder may be reduced culpable
homicide, attempt to murder may be reduced to grievous hurt, rape may be reduced to
indecent assault and so on. This would certainly reduce the burden on criminal courts
considerably and criminal law can be enforced more efficiently and speedily to ensure
fair justice.
726 Dressier David : Readings in Criminology and Penology (Second print 1966) p. 432.
727 Justice H.R. Khanna : Indian Judicial System ; AIR 1988 SC 65.
728 The Indian Penal Code was enacted in 1860 and the Evidence Act in 1872. Thus they
are more than one and a half century old.
It must be stated that the question of judicial arrears has engaged the attention of
successive Governments and Law Commissions. One of the primary reasons for the
crisis in the judiciary according to Justice, S.B. Sinka of the Supreme Court is
managerial incompetence of Judges and Courts.729 "People with legal problems like
people with pain, want relief and they want it as quickly and inexpensively as
possible". This observation of Justice Warren Burger, the former Chief Justice of the
U.S. Supreme Court applies in the Indian context as well. Besides utilization of
emerging technologies in the operational field, judicial infrastructure also needs to be
improvised. The adoption of the system of plea bargaining under the Criminal
Procedure Code as amended in 2005 is indeed a progressive step in this direction,
which, if properly used, will go a long way in reducing pendency of cases in criminal
law-courts.
8. Multiplicity of appeals and revisions cause more harm than good to the
cause of criminal justice. In an anxiety to ensure that no party may be deprived of a
right of justice, there are multiple provisions for appeals which hamper speedy
administration of justice. There should be only one appeal on the merits of the case
and one revision only on the question of jurisdiction regarding the subject-matter of
the case. There is no reason to presume that judges and Magistrates would not decide
cases.
The increase in the pendency of appeals in High Courts is one of the main
causes of delay in disposal of criminal cases. Delay at this stage may be attributed to
delay in preparation of the paper book and also liberal grant of adjournments at the
request of counsel for both sides.
Another well-known reason for undue prolongation of criminal trial is the filing
of transfer petitions for purely tactical purpose of granting time and the filing of
criminal revisions, on interlocutory matters and obtaining stay from the High Court.
Therefore, it is desired that the High Courts should maintain strict vigilance and
discourage any attempt by the interested parties to use (rather misuse) this power of
the High Court merely for tactical purpose of delaying the proceedings in lower
courts.
In order to bring effectiveness in the system of criminal justice, the procedure
needs to be further simplified. It is utmost necessary to separate the police
investigation from law and order and place the former under the control of judiciary.
Similarly, the Directorate of Forensic Science Laboratory should be separated from
the control of Police Department and made an independent autonomous body so that
it may serve the cause of justice. There is need to develop alternative dispute
resolution mechanism for expeditious disposition of criminal cases by amending the
existing criminal law and procedure.
Control over Criminal Law Courts
Despite best efforts on the part of judicial officers, the possibility of erroneous
decisions cannot be ruled out due to human element playing dominant role in judicial
pronouncements. This is evident from the reversal of decisions in appeal resulting in
acquittal or conviction of the accused person. It is therefore, necessary that some kind
of control over courts is necessary to eliminate the possibility of miscarriage of
justice. The courts can be kept under effective control through a rationalised
sentencing policy which embodies the following principles730 :—
1. Mandatory penalty should be obligatory in all circumstances.
729 AIR 2004 SC (Journal Section) 193.

730 Nigel Walker : Sentencing in A Rational Society, 1968 p. 194.
2. An escape clause should be provided for those offenders who are

suffering from some mental disorder or have no record of previous
conviction or committed crime due to provocation.
3. Sentencing be prohibited in certain cases of trivial offences.
4. Appeals against the sentence is yet another form of control over courts.
This not only enables timely correction of errors of individual judgment
but also offers an additional opportunity of reconsidering justice in
doubtful cases.
5. Each sentence must be accompanied by reasoned justification.
It is encouraging to note that court trials in India have the requisite
elaborateness, sophistication and meticulousness which are necessary for a fair
criminal trial. The provisions relating to bail, anticipatory bail and bonds avoid
unnecessary prison term for the suspects and undertrials. The hearings in courts are,
however, often protracted and adjournments cause inordinate delay in disposal of
cases. The philosophy of impartial justice is envisaged in appeals at three different
levels, namely, the district, the State and the federal level, with the result convictions
are prolonged to years or even decades to bring the guilty to the prison cell or to the
gallows for their criminal acts.731 To cite an illustration, people's confidence in the
efficacy of the country's judicial system is bound to weaken when they see that it took
four long years to send the two assassins of India's most powerful Prime Minister
Mrs. Indira Gandhi to gallows after a long legal battle. Even after the Supreme Court
having described the killing as "most foul and senseless act" in its judgment, another
six months were lost in an intense legal battle and disposal of mercy petition by the
President. While protracted legal proceedings brought both name and fame for the
lawyers who advocated on behalf of the accused, an uncalled for glorification was
provided to assassins732 Satwant and Kehar Singh by media. The inordinate delay
more than four years in concluding of Late Rajiv Gandhi murder case by Jain
Commission, has again undermined the faith of people in the criminal justice system.
When killers of persons no less than the Prime Minister takes such a long time what
can be expected of the murder of a common man !
Some of the reasons for apathy and distrust of the people towards the
functioning of courts of law in general and criminal courts in particular, are high cost
of litigation, laws' delay, inconvenience due to distant location of courts and
cumbersome court procedure of trial. Exploitative tendency of the Bar towards the
litigants is also a major contributing factor for public apathy for the criminal justice
system.
It is common knowledge that very few members of the public who are present at
the scene of occurrence are willing to come forward to depose in courts because of
long waiting for evidence to be recorded, adjournments on flimsy grounds, brow
beating of genuine witnesses by overzealous defence lawyers and inadequate
compensation for the loss of day's earnings. These are the biggest hurdles in getting
public witnesses, which are so essential for getting the accused person convicted in
criminal cases.
That apart, the main problem that the subordinate criminal courts are facing
today is the problem of witnesses turning hostile for one reason or the other. This is
731 Afzal Guru, the Pakistani terrorist and prime accused in Indian Parliament attack case of 13-
12-01 has been sentenced to death by the Supreme Court five years ago but his mercy. Petition is
still pending President's decision. This erodes people's faith in administration of justice.
732 The two assassins of Late Indira Gandhi murder case, Satwant Singh and Kehar Singh were
finally hanged till death on January 6, 1989 after more than four years protracted legal
proceedings.
more true when an influential person or his near relative is involved in a criminal case
and is undergoing trial. Commenting on backtracking by witnesses, the Delhi High
Court in its recent judgment in the notorious Jessica Lai Murder case,733 observed that
"witnesses toning hostile appears to be the order of the day and the courts must put an
end to this kind of attitude." In the instant case, as many as 32 witnesses had toned
hostile due to the alleged manipulation of evidence by the accused Manu Sharma who
happened to be the son of the Congress leader Vinod Sharma. Accused Manu Sharma
was sentenced to life imprisonment by the Court. All these witnesses were asked to
appear before the Court on February 1, 2007 to explain as to why action should not be
taken against them under Section 340 of the Code of Criminal Procedure, 1973, for
interfering with the administration of justice. These witnesses are likely to face the
same fate as Zahira Sheikh, who was sent to jail by the Supreme Court in March,
2006, for lying under oath in the notorious Best Bakery case.
These shortcomings can be remedied by streamlining the judicial system where
at present the Judge acts as an "umpire" and not inquisition trying to arrive at truth.
An All-India Judicial Service for recruitment of Judges, prescribing maximum time-
limit for disposal of cases listed by courts, evading innovative trial-procedure,
curtailing the number of appeals and entrusting the task of diposal of petty cases to
Nyaya Panchayats are some of the useful measures which may improve the working
of courts and ensure speedy disposal of criminal cases.
It must, be reiterated that the Judges in imparting justice are no doubt guided by
the settled principles of law but the public opinion exerts considerable influence on
judicial proceedings. As Donald Taft rightly remarked, "the public opinion about a
particular case finds expression through the judgment of the judicial authority dealing
the case duly supported by the relevant legal provisions".734 The social, economic, and
cultural changes in the society are inevitably reflected in the judicial
pronouncements.735 Court's activism through their judicial verdicts helps in shaping
law to meet the needs of changing society. The Supreme Court's decision in Shah Bano
Begum's case,736 involving Muslim divorcee claiming maintenance under Section 125 of
the Code of Criminal Procedure, 1973 and in Pratibha Rani v. Suraj Kumar*
legitimizing a Hindu wife to proceed against her husband or in-laws under Section
406 I.P.C., if she is denied possession of her dowry (called Stridhan) on demand or if it
is misappropriated, may be cited in support of this contention. Again, in V. M. Arbat v.
K. R. Sawant,737 the Supreme Court ruled that it is daughter's duty to maintain parents in
their old age. Actuated by the desire of judicial activism, the Supreme Court of India
while deciding a rape case came to the rescue of rape victims and observed that there
is no reason to insist on the corroboration except from the medical evidence, where
having regard to the circumstances of the case the evidence of the victim does not
suffer from any basic infirmity and the probabilities factor does not render it
unworthy of credence.738 Supreme Court's judicial activism is further discernible in
compensatory relief granted to victims in criminal cases.739
With a view to providing protection to dowry victims against harassment by the
husband or his relatives, the Criminal Law (Second Amendment) Act, 1983 has added
733 The judgment of the Delhi High Court dated 20th December, 2006 in Jessica Lai
Murder Case.
734 Taft Donald ; Criminology (4th Ed.) 350.
735 The decision in Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1467 fully
supports this contention.
736 AIR 1985 SC 945.
737 AIR 1987 SC 379.
738 Bharwada Bheginbhai Hirjhibhai v. State of Gujarat, 1983 Cri LJ 1096.
739 Supra; SAHELI (1990) ; Rudal Shah (1983) ; Bhim Singh (1985) etc.
a new Section 498-A to the Indian Penal Code making 'cruelty' to wife by a husband
or any relative of husband punishable with imprisonment upto three years and fine.
The meaning of 'cruelty' is not only limited to 'physical abuse' but extends to
'harassment' of wife and may even include 'unlawful demand for dowry or property or
valuable security'. The amendment thus seeks to provide adequate relief to dowry
victims against their greedy husband or in-laws.s
Summing up the role of courts in the administration of justice, suffice it to say
that "India today is passing .through an age of social questioning. There is need for
legal institution and courts to earn reverence through the test of truth". The high
incidence of acquittals and the increasing failure of the system to bring major culprits
to book is one of the major reason which is shaking the confidence of the people in the
criminal justice system. At present the high percentage of acquittals is due to decline
in the quality of police investigation and its consequent inability to procure and
produce credible evidence which may establish the guilt of the accused. Perhaps the
reason which makes the task of the police difficult is the fact that most of its time is
consumed in making arrangements for V.I.P.'s, handling bandhs, strikes, hartals,
agitations and other disturbances which have increasingly become a part of public life
today. Therefore, every effort should be made by the magistracy to preserve the image
of judiciary which is the 'highest armoury' imparting justice. The Bar should equally
be vigilent against any attack on the independence of judiciary so that people do not
lose confidence in this august institution.
It hardly needs to be pointed out that independent judiciary is surely a sign of
good health in a democracy. The Judges of the Supreme Court have always acted
keeping in view the largest interest of the country and its democratic values. Their
performace as the conscience-keepers of the Constitution and the guardians of
fundamental rights has been laudable. Their role in revamping the criminal justice
system by interpreting 'procedure established by law' as "due process of law" in
Article 21 of the Constitution740 has been commendable insofar as it has provided great
relief to common men against the complex technicalities of criminal law- procedure.
It must be stated that of late, the higher judiciary in India has acquired a
dominant profile. The politicalisation of the police and the criminalisation of politics
may carry this process of dominance by judiciary further. As rightly pointed out by an
eminent writer, "to some extent, the judiciary is born great, some greatness has been
acquired by it on the strength of the performance of some of its illustrious Judges, but
some of it has also been thrust on it by the failure of the Executive741 and the
legislative organs of the State to do their duty properly". There have been occasions
when the Judges have not hesitated from directing the various executive functionaries
to have certain laws enacted for speedy and impartial administration of criminal
justice. More recently, the Supreme Court has directed the government to introduce
accountability along with necessary checks and balances in the key investigation
agencies such as CBI and the Enforcement Directorate through appropriate legislation.
The Court also ruled that all the recommendations of the IRC (Independent Review
Committee) needed to be implemented immediately.
740 Maneka Gandhi v. Union of India, AIR 1978 SC 928 and S.R. Bommai's case.
741 More recently, the Supreme Court on March 28, 2011 pulled up the Central Government for
not probing specific sources of black money stashed in Swiss Bank and other banks abroad. It
also expressed dismay that the probe was focused only on the case of Pune-based businessman
Hasan Ali Khan who is alleged to have money laundered to the tune of thousand of crore rupees
stashed in the Swiss Bank. The Apex Court quipped what about other Hasan Ali and commented
that even this case could not hare come to light had there been no PIL filed against it. This
exposes Central Govt's inefficiency in smashing corruption.
say that "India today is passing .through an age of social questioning. There is need
for legal institution and courts to earn reverence through the test of truth". The high
incidence of acquittals and the increasing failure of the system to bring major culprits
to book is one of the major reason which is shaking the confidence of the people in
the criminal justice system. At present the high percentage of acquittals is due to
decline in the quality of police investigation and its consequent inability to procure
and produce credible evidence which may establish the guilt of the accused. Perhaps
the reason which makes the task of the police difficult is the fact that most of its time
is consumed in making arrangements for V.I.P.'s, handling bandhs, strikes, hartals,
agitations and other disturbances which have increasingly become a part of public life
today. Therefore, every effort should be made by the magistracy to preserve the image
of judiciary which is the 'highest armoury' imparting justice. The Bar should equally
be vigilent against any attack on the independence of judiciary so that people do not
lose confidence in this august institution.
It hardly needs to be pointed out that independent judiciary is surely a sign of
good health in a democracy. The Judges of the Supreme Court have always acted
keeping in view the largest interest of the country and its democratic values. Their
performace as the conscience-keepers of the Constitution and the guardians of
fundamental rights has been laudable. Their role in revamping the criminal justice
system by interpreting 'procedure established by law' as "due process of law" in
Article 21 of the Constitution742 has been commendable insofar as it has provided great
relief to common men against the complex technicalities of criminal law- procedure.
It must be stated that of late, the higher judiciary in India has acquired a
dominant profile. The politicalisation of the police and the criminalisation of politics
may carry this process of dominance by judiciary further. As rightly pointed out by an
eminent writer, "to some extent, the judiciary is born great, some greatness has been
acquired by it on the strength of the performance of some of its illustrious Judges, but
some of it has also been thrust on it by the failure of the Executive743 and the
legislative organs of the State to do their duty properly”. There have been occasions
when the Judges have not hesitated from directing the various executive functionaries
to have certain laws enacted for speedy and impartial administration of criminal
justice. More recently, the Supreme Court has directed the government to introduce
accountability alongwith necessary checks and balances in the key investigation
agencies such as CBI and the Enforcement Directorate through appropriate
legislation. The Court also ruled that all the recommendations of the IRC
(Independent Review Committee) needed to be implemented immediately.
Fast Track Courts
Delays in courts have been a cause for concern both for the Government and the
judiciary. At the initiative of the Department of Justice, the Eleventh Finance
Commission recommended a scheme for creation of 1734 additional courts, called
the Fast Track Courts in the country for a period of five years for disposal of long
pending sessions and other cases and allocated an amount of Rs. 502.90 crore.
Initially 450 Fast Track Courts were launched across the country on April 1, 2001.
Out of the proposed 1734 courts, 1562 Fast Track Courts were functional as on
742 Maneka Gandhi v. Union of India, AIR 1978 SC 928 and S.R. Bommai's case.
743 More recently, the Supreme Court on March 28, 2011 pulled up the Central Government for
not probing specific sources of black money stashed in Swiss Bank and other banks abroad. It
also expressed dismay that the probe was focused only on the case of Pune-based businessman
Hasan Ali Khan who is alleged to have money laundered to the tune of thousand of crore rupees
stashed in the Swiss Bank. The Apex Court quipped what about other Hasan Ali and commented
that even this case could not hare come to light had there been no PIL filed against it. This
exposes Central Govt's inefficiency in smashing corruption.
31-3-2005. These Fast Track Courts have disposed of 7.94 lakh cases out of 15.28
lakh cases transferred to them i.e. 52.09%. On the expiry of the term of these FTCs on
March 31, 2005 the Central Government approved continuation of existing Fast
Track Courts at a cost of Rs. 509 crores for a period of another five years i.e. upto
March 31, 2010 which was further extended by one year. However, the Central
Government has reportedly refused to extend the scheme of fast track court beyond
March 31, 2011. However, the State Governments are free to extend the term of Fast
Track Courts functioning in the state, if they deem it necessary, at their own financial
expense.744
The Central Government has requested the State Government and High Courts
to earmark atleast one Fast Track Court in each district to exclusively deal with cases
involving senior citizens, abuse of women and the disabled.
The FTCs hear cases, which come under the jurisdiction of the Sessions Court.
These Courts give preference to cases pending for a long time and try to dispose
them of expeditiously. Emphasising the need to fill expeditiously the vacancies of
FTCs so as to make all such functional, the Supreme Court in Brij Mohan Lai v. Union
of-India,745 directed the States and the Chief Justices of High Courts to ensure that all
the vacancies are filled up within three months of the judgment. Accordingly, the
functioning of these Courts was revamped by the end of December, 2002. The
impugned judgment of the Apex Court having approved the legal and constitutional
validity of the Fast Track Courts provided fillip to the Centre and the States for
expediting the constitution of more FTCs and making them fully functional.
Fast Tracks Court are no doubt a novel experiment aimed at clearing the
massive backlog of cases pending in law courts. Particularly, they are expected to
substantially reduce the number of undertrials languishing in different jails of the
country and a vast majority of them will be set free, thereby reducing expenditure as
well as burden on jails.
The scheme envisages setting up of an average of five FTCs in each district of
the country. The state-wise distribution has however, been done keeping in view the
pendency of cases and average rate of disposal of cases in courts. Ad hoc Judges from
among retired Sessions/Additional Sessions judges are to be appointed to preside
these courts. The power of appointment of judges has been vested in the High Courts.
744 There were 85 Fast Track Courts functioning in the State of Madhya Pradesh (as on 31-3-2011)
out of which the term of 59 Fast Trade Courts was to expire on March 31, 2011. But the State
Govt, has decided to extend the term of these courts by one year incurring a cost of about 1.60
crores.
745 Supreme Court's Judgment dated May 6, 2002.
The number of Fast Track Courts functioning in various sates are given in the table
below :—
Statement showing the state-wise number of Fast Track Courts in the country as on
31st March, 2007
SL Name of the State No. of FTCs No. of FTCs
No proposed by EFC functioning in the
. States
(1) (2) (3) (4)
1. Andhra Pradesh 86 67
2. Arunachal Pradesh 3 3
3. Assam 20 21
4. Bihar 150 116

5. Chhattisgarh 31 31
6. Goa 5 2
7. Gujarat 166 76
8. Haryana 16 12
9. Himachal Pradesh 9 3
—
10. Jammu & Kashmir 9
11. Jharkhand 89 89
12. Karnataka 93 71
13. Kerala 31 28
14. Madhya Pradesh 66 47
15. Maharashtra 187 121
16. Manipur 2 2
17. Meghalaya 3 3
18. Mizoram 3 3
19. Nagaland 2 2
20. Orissa 41 33
21. Punjab 18 16
22. Rajasthan 83 83
—
23. Sikkim —
24. Tamil Nadu 49 49
25. Tripura 3 3
"26. Uttaranchal 45 45
27 Uttar Pradesh 242 242
>
28. West Bengal 119 67
Total 1562
With the setting up of Fast Track Courts in certain States the work-load of
Sessions Court is reduced considerably As the Sessions Court has to do original work
under more than two dozen different Acts, it never has the time to cope up with all
that. It has to conduct trials under NDPS Act, Prevention of Corruption Act, Essential
Commodities Act, Unlawful Activities Prevention Act and so on. The appointment of
Special Judge remains in abeyance for years and the very purpose for which they
were required to be appointed gets frustrated. Therefore, the setting up Fast Track
Courts will certainly help in expeditious disposal of criminal cases which are long
pending in Courts.
Plea for Setting up a Judicial Ombudsman
More recently, it has been suggested to evolve a system of Judicial Ombudsman
on the Sweedish model with independence of judiciary. The reason being, that the
High Courts in India are already over-burdened with work therefore, they can hardly
exercise any effective control over the subordinate courts. That apart, in order to
ensure accountability of the judicial system to the people of India as contemplated by
the Preamble to the Constitution, some independent authority outside the judicial
system such as Judicial Ombudsman is deemed necessary. The Judicial Ombudsman
may be assigned the functions of monitoring administration of justice including the
work of judicial officers, prosecutors, police, jailors, without however, interfering
with the independence of judiciary. It may also probe into the conduct of Judges and
staff dealing with the administration of justice. It may reprimand the Judges for
misconduct or misbehaviour. The Judicial Ombudsman746 may make
recommendations on its findings in its annual report to the Parliament or the Legislature.
Indeed, the Judicial Ombudsman can certainly play a crucial role in eradication
of procedural maladministration in court proceedings. As an organ of the
Government, judiciary is no less accountable to people as the legislature and the
executive are. It is therefore, necessary that judiciary conducts itself fairly, speedily
and efficiently. Ombudsman should be conferremd jurisdiction to receive complaints,
investigate, and make recommendations regarding administrative conduct of judges
and local courts. These investigations being recommendatory, would not diminish the
independence of the judiciary in any way nor would they interfere in the functioning
of the judicial institutions.747
Need for International Criminal Court
In the context of handling crimes and criminals, a word must be said about the
desirability of having an International Criminal Court to deal with international
crimes. With the development of science, means of communication, information
technology, internet etc. there has been enormous increase in international crimes
such as piracy, hijacking, genocides, espionage and various other descriptions of
related crimes. The persons who commit crimes against international law should be
tried and punished by an International Criminal Court so that the trial and
punishment of these offences may be harmonised and there is uniformity in
procedure for handling such crimes. The International Criminal Court may be vested
with jurisdiction for prosecution and conviction of offenders irrespective of their
nationality. The setting up of an International Criminal Tribunal in 2001 having
support of 139 countries is a welcome step in this direction.748
Concluding Observation
It hardly needs to be stressed that with the advances made by the information
technology the world over and development of computer science, the Indian criminal
justice system should take advantage of these technological opportunities to achieve
the benefits for both i.e., the courts as also the users. There is an urgent need to switch
746 Similar institution exists in Spain, Finland, Canada, U.S.A., U.K, Mexico with different names.
In Canada it is known as 'Canadian Judicial Council' and in U.K. it is called Legal Services
Ombudsman.
747 Kamleshwar Nath : 'Deficiencies in Court Procedures—Remedies 1999 AIR Journal
Section p. 9.
748 Times of India (Lucknow Ed.) dated 12th March, 2001.
over to e-judiciary, which ultimately will function through e-courts to deliver e-

justice. It will improve and enhance access to justice and reduce inconvenience and
the cost of litigating parties, particularly those in outlying regional and country areas.
The use of e-search will enable the public and the litigants to search for requisite
information such as participants, list of witnesses and documents filed, next hearing
date and outcome of hearings etc. The development of electronically flexible court
rooms would be able to cater to the needs of integrated electronic trials, examination
of witnesses or undertrial prisoners by video-conferencing thus saving considerable
time in their transportation and eliminating security risks to a great extent and easing
the work of police guards. The video-conferencing facility would be increasingly
helpful in ensuring participation from rural and remote localities in matters before the
court.
Though the process of criminal trials through video-conferencing has already
commenced in some selected courts in India, the system needs to be expanded to the
courts and prison-houses of all the major cities and towns through video-networking.749
Needless to say that computerisation of the Supreme Court way back in late nineties
has improved its working in many ways. Making available the computerised cause-
list on-line has yielded rich dividends. Information technology holds a great potential
to solve the problem of judicial arrears by allowing most criminal matters listed for
hearing to be considered and resolved without the prisoners or undertrials being
physically produced before the court. This will not only ensure speedy criminal
justice but act as an effective restraint on the hardened and professional criminals who
take the advantage of slow moving criminal justice system and find crime to be highly
profitable and rewarding. That apart, the cyber crimes which are committed in the
cyber space across the national borders with impunity may be effectively checked by
extending e-court's jurisdiction outside India through international cooperation across
the world.
749 The video conferencing network has already commenced in the Central Jail, Bhopal
in September, 2004.
Chapter XI
The Prison Administration
P risonisation symbolises a system of punishment and also a sort of institutional

placement of undertrials and suspects during the period of trial.750 Since there
cannot be a society without crime and criminals, the institution of prison is
indispensable for every country.
The history of prisons in India and elsewhere clearly reflects the changes in
society's reaction to crime from time to time. The system of imprisonment represents
a curious combination of different objectives of punishment. Thus, prison may serve
to deter the offender or it may be used as a method of retribution or vengeance by
making the life of the offender miserable and difficult. The isolated life in prison and
incapacity of inmates to repeat crime while in the prison, fulfils the preventive
purpose of punishment. It also helps in keeping crime under control by elimination of
criminals from the society. That apart, prison may also serve as an institution for the
reformation and rehabilitation of offenders. It therefore, follows that whatever be the
object of punishment, the prison serves to keep offenders under custody and control.
The attitude of society towards prisoners may vary according to the object of
punishment and social reaction to crime in a given community. If the prisons are
meant for retribution or deterrence, the condition inside them shall be punitive in
nature inflicting greater pain and suffering and imposing severe restrictions on
inmates. On the other hand, if the prison is used as an institution to treat the criminal
as a deviant, there would be lesser restrictions and control over him inside the
institution. The modem progressive view, however, regards crime as a social disease
and favours treatment of offenders through non-pertal 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.
It is significant to note that the prison inmates are to be dealt with different
punishments because uniform punishment for all of them would hardly serve the ends
of justice. It therefore, necessitates classification of prisoners into different categories
depending on the gravity of their offence and the term of punishment awarded to
them. Proper classification of offenders for the purpose of treatment is a pre-condition
for an ideal penal programme. The introduction of modern 'classification methods' in
prisons are essentially directed to meet this end.
The origin of prison is inter-linked with the system of imprisonment which
originated in the first quarter of nineteenth century. Initially, prisons were used as
detention houses for under-trials. Persons who were guilty of some political
750 Shanna P. D. : Police and Criminal Justice Administration in India, (1985) p. 145.
offence or war crime or who failed to pay their debts or fines were lodged in
prison cells with a view to extracting confession from them or securing the payment
of debts or fines. Subsequently, with the march of time and advancement of
knowledge and civilisation, the conditions of prisons also improved considerably.
Since the present day penology centres 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 modem techniques
of punishment lay greater emphasis on reformation, correction and rehabilitation of
criminals.
The modem 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.
The American Prison System
The medieval period in the history of American colonies witnessed an era of
barbarism and deterrent punishment for criminals. The offenders were mercilessly
tortured and brutally treated. Even for minor offences they were subjected to severe
punishment such as death, public humiliation, branding, whipping and so on. Those
who were to be tried for political offences, war-crimes or blasphemy, were kept in
prison as undertrials. Thus imprisonment was used only in rare cases. The life inside
the prison was hard, unbearable and painful. With the march of time, public opinion
mobilised against these barbarous methods of treating the prisoners which eventually
led to the passing of famous Penn's Charter of 1862.
Penn's Charter of 1862
The main object of this Charter was to put an end to brutal methods of
punishment on humanitarian grounds and bring out reforms in prison administration.751
The Charter inter alia contained that :—
1. The practice of releasing prisoners on bail should be introduced.
2. Compensation should be allowed to persons who were wrongfully
imprisoned and this amount should be double the amount of loss actually
suffered by the victim of the offender's act.
3. Prisoners should be allowed the choice of their food and lodging to a
certain extent.
4. The system of 'pillory' i.e. punishing the offender in public places should
be abolished.
The period that followed brought a better future for prisoners. With the advance
of civilization, greater emphasis was laid on prisoner's reformation. Earlier, the
Quaker's Movement752 in 1775 had led to remodelling of Philadelphian prison on a
new pattern. The prisoners were classified into two main categories, namely,—
(i) incorrigible or hardened criminals ; and
(ii) corrigible or ordinary criminals who were capable of reformation.
Incorrigible prisoners were subjected to solitary confinement in cells without
any labour whereas the corrigibles were lodged together in rooms and were put to
work in shops during day time. Women delinquents and vagrants were kept in
separate well-fenced quarters. Thus, the prison was modelled on two major
751 Void, G. B. ; Theoretical Criminology (1958 Ed.) p. 89.

752 Quaker's were a religious sect who condemned inhumane treatment of offenders on theological
grounds.
The Prison Administration 419
principles, namely, (1) work during day; and (2) humanitarian treatment of offenders.
The condition of Philadelphian prison, however, deteriorated towards the end of
eighteenth century due to overcrowding, laxity in discipline and abuse of power by
Governors. This necessitated establishment of a new Model Prison elsewhere.
Eventually, two model prisons were set up, one at Pennsylvania and the other at
Auburn. The study of American prisons broadly comprises these two systems which
were started simultaneously in Pennsylvania and Auburn.
The Pennsylvanian System
The Pennsylvanian system was first introduced in the Walnut Street Prison in
Philadelphia in 1790. The prisoners were kept in complete isolation in separate cells
during day and night. Even the food was served to the prisoners in their cells.
Solitary confinement of prisoners in isolated cells was designed to bring about quick
reformation in them because of its extreme deterrent effect. But complete segregation
of prisoners in isolated cells without any work brought them untold miseries and a
large number of inmates died due to unbearable monotony of prison life. Those who
survived their term of solitary confinement, either returned mad or irresponsible. To
avoid these horrible results, the system of labour and work was introduced for
prisoners but it was to be done in isolated cells and not in congregate shops. The
arrangement of cells in this prison resembled the spokes of a wheel with a guardroom
in the centre. While carrying prisoners from one place to another, their faces were
covered by hoods so that they could not see each other. Only certain designated
persons such as wardens, chaplain and representatives of social welfare organisations
were allowed to visit this prison and establish contact with inmates but the friends,
relatives and other inmates could not have access to the prisoner during his prison
term. The inmates were subjected to prayers and appropriate discourses so that they
behaved themselves with greatest propriety and decorum.753 The major setback of this
system was lack of productive labour for prisoners, over-crowding and cruelty.
Consequently, this prison fell into disuse by the later half of the nineteenth century
and was finally abandoned in favour of Auburn system.
The Auburn System
A new prison modelled on Pennsylvanian pattern was built at Auburn in New
York State in 1818-19. The distinguishing feature of this system was that prisoners
were to work in shops under a strict rule of silence. In the initial stage, only hardened
criminals were brought to this prison to undergo solitary confinement without work.
But experience with this prison showed that severity of solitary confinement had fatal
consequences on physical and mental health of inmates and most of them suffered
mental disorder or committed suicide. Consequently, a large number of prisoners
were pardoned and released in 1823. The system which was adopted in this prison
after 1823 came to be known as the Auburn system.
The essence of the Auburn system lay in forced silence and separation at night
but congregate work in shops during day time. Commenting on the working of
Auburn System, J.L. Gillin observed that most serious and hardened criminals were
kept in solitary confinement in complete isolation so that they could spend their days
in penance and repentance for their crime. The prisoners who were deemed
corrigibles were made to work in shops during day but were housed in isolated cells
during night-time. The striking feature of the system was that the prisoners were not
allowed to talk or communicate with each other while at work or during lunch or
supper. Those who tried to break silence, were flogged and punished. Thus, hard
753 Negley K. Teeters : The Cradles of the Penitentiary (Pennsylvania) Prison Society, p.
99.
labour in shops during day time was considered essential from the point of view of
physical and mental fitness of inmates while enforcement of silence in association
served as a measure of punitive reaction to crime. Even visits by the members of the
prisoner's family were forbidden. It is for this reason that Gillin characterised the
Auburn system as "a system of discipline by repression and labour under fear."
Although the system yielded useful results and silence while at work or during leisure
prevented contamination of prisoners, but it was undoubtedly a brutal method of
treating the offenders and it hardly had any reformative impact on them. The system
as a whole provided no exercise, play or sociability. The warden himself had no
conversation with the prisoners until just before their release when the inmate was
given three dollers and advice.754
From the foregoing analysis, it is evident that both the systems lay greater
emphasis on non-communication between the prisoners and extracting work from
them during day time and keeping them in complete isolation during night. The only
difference between the two was that in Pennsylvanian system the prisoners were to
live and work in isolated cells and therefore, they could not even know each other
while the Auburn system provided congregate work in shops during day where the
prisoners could see and know each other but could not, however, communicate. It is
primarily, for this reason that Donald Taft characterised the Pennsylvanian system as
the separate system and the Auburn system as the silent system.755
The Elmira Reformatory
Isolation of Prisoners in solitary cells, "work during day and reformation
through religious sermons' remained the basic feature of the Auburn as well as the
Pennsylvanian prison system until 1870. The succeeding years, however, witnessed
an era of revolutionary changes in the history of American prisons. During the next
thirty years, these systems were superseded by the Elmira Reformatory in New York
which provided for indeterminate sentence, parole and probation. The inmates were
categorised as hardened criminals and incorrigibles for the purpose of treatment in
prison. With new developments in penology during the early decades of twentieth
century, the prisons no longer remained the dump-houses for convicts but were used
as places of industry to train inmates for skilled work. This obivously served a dual
purpose. Firstly, it helped in the rehabilitation of prisoners, and secondly, work in
prisons kept inmates engaged during their stay in prison, with the result they were
mentally and physically fit to return as a useful member of society after their release.
It was around 1930 that individualisation of prisoners became the object of
punishment and hence the criminals were graded not according to their age, sex or
dangerousness but according to their individual needs and chances of rehabilitation.
The Illionis Prison, 1933
The opening of Reception Centre at Illionis in 1933 marked the beginning of
reformative era in the American prison system. The cells in this prison were airy,
well ventilated and equipped with adequate arrangement of lights. The conditions of
health and sanitation were considerably improved and inmates were provided
facilities for reading, writing and schooling. Adequate arrangements were also made
for physical exercise and recreation of inmates. The prisoners were to dine together in
a common mess and they could meet their relatives and friends on certain fixed days.
The sentence of solitary confinement was completely abolished and general tendency
was to narrow down the gap between the outside free-life and the life inside the
754 Taft and England : Criminology (4th Ed.) p. 408.

755 Ibid p. 405.
prison to the maximum possible extent.756

Despite a series of prison reforms, the condition of American prisons, by and
large, still remains deplorable. A recent study on American prisons reveals that they
are overcrowded beyond belief. Mr. Ramsey Clark, a former Attorney General of the
United States under President Johnson was sunk in deep and dogmatic gloom
claiming that more than half of those sent to prisons returned there sooner or later
after their release.757 The general level of American prisons has been appallingly low.
They have been allowed to stagnate due to ever-increasing criminality and the
criminal being pushed to jail indiscreetly. Beating up, extortion, blackmail and sexual
assaults are common occurrences in prison institutions. As Sir Leon Radzinowicz
rightly pointed out, "the loosening of rigid control, the gap between the goal and its
fulfilment, the feeling that much could be seized with a bit of more self-assertion, has
provoked violence in many kinds of situations leading to rebellion inside the
prisons".
Until the mid-half of the 20th century, even the U.S. Courts had little regard for
the rights of prisoners as they believed that as a result of his conviction the prisoner
has "forfeited his liberty and personal rights except those which the law in its
humanity accords to him". However, this attitude of indifference has now radically
changed due to human rights consciousness of the American Judges and the
constitutional rights of prisoners in USA are now well honoured and safeguarded.
The British Prison System
Like United States, in England also, the prisoners were treated brutally and
punishments were barbarous in nature. John Howard, in his famous work entitled, 'The
State of Prisons' has described the aweful condition of British prisons during the
eighteenth century. The prisons according to him were damp and vermin infected and
were the places full of filth, corruption, sex indulgence and all sorts of vices. Beccaria
was the first European criminologist who raised a voice against the continuance of
harsh and painful treatment to convicted prisoners. Pope XI also advocated the cause
of human treatment to inmates in prisons. He established a cellular prison in Ghent
within his Papal State which was intended to afford an opportunity for criminals to
spend some time in penance and reform themselves to return as a law-abiding
member of society. This gave a fillip to the penitentiary movement in England. The
first such penitentiary was established in 1776 at Hersham with solitary cells where
inmates were kept in complete isolation with a view to enabling them to think over
their past crime and correct themselves for future life. In order to mitigate the rigours
of isolation, the prisoners were engaged in hard manual work during day hours. This
kept them physically and mentally fit for the institutional life.
The Begining of Prison-Reforms in U.K.
The Act of 1778 passed by the British Parliament marks the beginning of prison
reforms in England. The Act contained elaborate provisions relating to prison
reforms. The entire working of prisons was remodelled. Under the new system, the
inmates were put to work during day and kept in solitary cells during night. Efforts
were made to make them understand that despite their offensive acts, they still had a
chance of rehabilitating themselves in the community after their release from jail. By
1833, the inmates could meet their friends and relatives more frequently at fixed
intervals and outside visitors were also permitted to go around the prison and hear
complaints from the inmates.
756 Void G. B. : Theoretical Criminology (1958), p. 122.

757 Leon Radzinowicz & Joanking : The Growth of Crime, p. 257.
Some significant changes were further introduced in the prison administration in

the later half of the 19th century. In order to ease the pressure on British prisons, the
prisoners were released on 'Ticket on leave' on condition that they would not resort to
criminality. By this time the prison administration was transferred from local
municipal authorities to the national Government by the Act of 1877 which was a
landmark change in the history of prison development in Britain.
In 1894, Gladstone Committee recommended the abolition of unproductive
labour in prisons and emphasised the need for work in groups and improved
classification of prisoners. The Committee also recommended separate reformatories
for juvenile offenders. As a result of the Committee's recommendations the Prison
Act was enacted in England in 1898, which was followed by the Children Act, 1908.
Transportation of British Prisoners to Colonies in America and Australia
Despite penitentiary arrangements, the political upheaval in Europe during 18th
and 19th century added to the problems of prison administration in Britain. A large
number of war captives and political offenders had to be accommodated in the
existing prisons. This in flood of war prisoners led to overcrowding and
mismanagement in prisons. To cope with this situation, new
penal colonies1 were established where a large number of offenders could be

migrated by way of punishment. Thousands of British prisoners were transported to
American colonies with a view to reducing overcrowding in English prisons and at
the same time meeting the problem of labour shortage in the colonies. In course of
time, British colonies were also established in Australia and British prisoners could
now also be transported to Australian regions. The following categories of British
prisoners were preferred for transportation to Australia :
(1) Those convicts who were sentenced to transportation of life were migrated
to Australian regions to settle there permanently.
(2) Those who were sent in probation-gang, included prisoners who were
expected to work as labourers in the construction of roads and buildings.
They had the option to return to their homeland on expiry of their period
of transportation or settle in Australia permanently as free men.
Significantly, such prisoners preferred to stay back and settle in Australia
permanently rather than returning home. The obvious reason being that
they could lead a honourable life in Australia but if they chose to come
back, they were likely to be shunned and avoided by the community due
to the stigma cast on them as ex-convicts.
(3) There were some prisoners who were transported to Australian regions on
a 'parole-pass'. After a specified period the holder of a parole-pass was
entitled to a 'ticket on leave' which corresponded to our modern parole
system. Such prisoners could be pardoned with or without conditions and
were permitted to return to homeland.
As the time passed, the transportation of British prisoners to Australia proved
averse to the British interests. Apart from the huge expenditure involved in
transportation of prisoners, the system proved detrimental to the interests of the free
British settlers in Australia. Moreover, the transported prisoners being mostly males,
the British settlements in Australia virtually remained womanless which was a great
human as well as the sociological problem. The free-settlers also did not relish the
idea that prisoners should be allowed to settle in these regions permanently. Thus
there were frequent clashes between the prisoners and the free settlers which created
new problems for the British administrators in Australia. As a result of these unhappy
developments, the system had to be abandoned.
The Standard Minimum Rules for Treatment of Prisoners
Sir Arthur Waller, the then Chairman of Prison Commission for England and
Wales suggested to the International Penal and Penitentiary Congress in 1925 that a
set of general rules should be drawn up governing the treatment of prisoners in all the
member countries. Thereupon, he along with his two fellow Commissioners was
assigned the job of drafting the Rules. Consequently, 1. During 1850's, the Government of
France also started transporting the prisoners to the French Colony in Guinna (South Africa). But the
climatic conditions of this region were so bad that most prisoners died of ill-health before they could
return to their home country. The system was therefore, suspended and finally abolished during
World War II (1939-1945).
Standard Minimum Rules for the treatment of Prisoners were drafted for the first time
and they were accepted by the United Nations after World War II. This paved further
ground for discussion on this important topic at international level in subsequent
years.
Contribution of Sir Lionel Fox to Prison Reforms in UK
The history of prison reforms in United Kingdom shall remain incomplete
without the mention of Sir Lionel Fox who was a great prison-reformer of the twentieth
century. His contribution to the field of prison reforms in England is so great that most
of the modem techniques of prison administration owe their origin to him. He held
distinguished positions as a prison administrator. He was the Secretary of the Prison
Commission from 1925 to 1934 and later, the Chairman of the Commission from
1942 to 1960. During his association with prison administration, he emphasised on
two main considerations. Firstly, he suggested that public should always be kept well
informed about the working inside the prisons through intensive reporting and
arranging frequent visits of pressmen and other social workers in prisons. With this
end in view, he initiated a Prison Service Journal in 1960. Secondly, he stressed that
prison administration should aim at reconciling the conflicting objectives of
deterrence and reformation. He suggested that English prison system since 1895 was
modelled on the principles set out in the Gladstone Committee's Report which
underlined the need for deterrence and reformation which were the primary and
concurrent objects of treatment of offenders. Sir Lionel Fox further pointed out that the
conflict between these two objectives, namely, deterrence and reformation, can only
be resolved if it is accepted that "the element of deterrence in punishment lies
fundamentally not in severity of punishment but in certainty of detection and
punishment". In his view, the deterrent inside the prison is to be found in the fact of
imprisonment and not in the severity of the prison regime.758
These objectives were effectively incorporated in the prison regulations framed
under the English Criminal Justice Act, 1948. Sir Lionel Fox advocated setting up of
open-prisons and as a result of his persistent efforts, the number of such open
institutions was raised from one in 1942 to thirteen during his tenure as the chairman
of the Prison Commission. These included three open prisons exclusively for women.
He also increased the number of borstals from one to fifteen including thirteen for
boys and two for girls. Besides these institutions, he also started what he called the
"Hostel System" in Bristol in 1953 for long-term prisoners. This institution was
mostly used to accommodate the preventive detenues who earned their living by
taking ordinary jobs in city and returned back to the hostel after their day's work. In
1958, the hostel system was extended to prisoners undergoing long term sentence. The
working of the Hostel system was highly appreciated by the Prison Commission in its
Annual Report of 1962. There are a number of such hostels functioning in England at
present, some of them being exclusively for the women prisoners. Sir Lionel Fox's penal
reforms were recognised throughout the Anglo-American world. He was also closely
associated with the International Penal and Penitentiary Commission for several years.
The English Criminal Justice Act, 1982 envisages a scheme of liberalised parole
system to ease the pressure of prison population. The mounting pressure on prisons in
England and Wales is evinced by the fact that there were more than 45,000 inmates in
prisons in July, 1981 with the result freedom of movement of prisoners in many
prisons had been drastically reduced.1 Some prisoners on remand had to be housed
even in police station garages. To cope up with the situation, it was proposed to
release prisoners on licence after serving one-third of the sentence thus, removing the
discretion of Parole Board. The Parole Board, however, did not favour such a time-
bound release of prisoners and suggested that it should be limited to short term
sentences.2 This proposal was, however, rejected by the British Parliament while
discussing the Criminal Justice Bill in 1982 and partially suspended sentence3 was
accepted as an alternative to this proposal as it would make parole a more constructive
measure because the minimum period under the Act is twelve months or one third of
the sentence, whichever is longer. Thus, deduction of minimum period for release on
758 Lionel Fox : 'Studies in Penology (published by the International Penal and Penitentiary
Commission in 1964, p. 187.)
The Modem British Prison System

parole brought greater number of prisoners into the parole scheme thereby reducing
the pressure on prison administration.
The salient features of the present prison system in Britain may be summarised as
follows :—
1. The prisoners are classified into different categories through Group
therapy method.
2. The inmates are provided vocational training inside the prison for their
physical, moral and mental upliftment.
3. Reformation of the prisoner is sought within the community itself.
4. After the prisoner's release from the prison, his rehabilitation and
socialisation is entrusted to after care institutions or voluntary social
service organisations.
5. Prisons are treated as minimum security institutions wherein basic rights
of prisoners should be duly recognised.
The Russian Prisons
In Russia, the prisons are called Miesta Lischenja Svobadi meaning the places of
withdrawn freedom. The Russian prison system also provides for open colonies for
prisoners.
The noted penologist Lenkon Von Koerber, in her book entitled 'Soviet Russia
Fights Crime' gives an interesting account of conditions in Russian prisons. The
educative reform^ system adopted in these prisons offers better opportunities for
inmates to reform and rehabilitate themselves in normal life. A prison sentence is
never less than a year so as to provide adequate training to the inmate. Liberal good
time allowance4 is granted to prisoners and they can be released before the expiry of
their term of sentence : The prisoners are allowed wages for the work done by them.
Thus, their family and children are saved from hardship and starvation. The amount of
wages depends on the
1. Prison Statistics for 1981, CmndJ. 8654 (1982).
2. The Report of the Parole Board for 1981 (1982).
3. The English Criminal Justice Act, 1982, Sec. 30.
4. Two days good work Is reckoned as three day's detention.
quality and quantity of work done by the prisoners. Out of the total wage earned by
an inmate two-third is paid to him in cash while the remaining one-third is given to
him at the time of his release.
The system also provides for education, adequate means of recreation and
religious discourses. The prisoners form a Council of Culture to settle their mutual
disputes in a spirit of co-operation.1 This also provides an opportunity for self-
government in these prisons. They can use their own clothings instead of the uniform
prescribed for prison inmates.
International Penal and Penitentiary Commission and Prison Reforms
As stated earlier, the International Penal and Penitentiary Commission made
an endeavour in 1929 to work out Standard Minimum Rules for the treatment of
prisoners which could be uniformly applicable throughout the world but its attempt
failed because of the variations in geographical, physical and political conditions of
different countries. Thereafter, in 1949 the United Nations convened a meeting of the
group of experts to consider the problem of crime prevention and to frame standard
minimum rules for this purpose. Consequently, a draft of standard minimum rules for
the treatment of prisoners was submitted by the First Congress on Preventon of
Crime and Treatment of Offenders, U.N.O. Geneva in 1955. Modem prison reforms
of most of the countries are mainly based on these standard minimum rules. The rules
sought to eliminate undue torture and suffering to prisoners and narrowing down the
gap between the prison life and the free-life. There was greater emphasis on
rehabilitation of the prisoner and training him for his return to normal life in society.
The prisoners were to be humanly treated and not brutally punished.
The General Assembly of United Nations passed a resolution in Geneva
Congress in 1955 providing for convening every five years, a World Congress on
Prevention of Crime and Treatment of offenders.2 Consequently, the Congresses
are held every five years as follows :—
1. The First Congress (Geneva, Switzerland), 1955.
2. The Second Congress (London, U.K.) 1960.
3. The Third Congress (Stockholm, Sweden), 1965.
4. The Fourth Congress (Kyota, Japan), 1970.
5. The Fifth Congress (Geneva, Switzerland), 1975.
6. The Sixth Congress (Caracas, Venezuela) 1980.
7. The Seventh Congress (Milan, Italy), 1985.
8. The Eighth Congress (Havana, Latin America), 1990.
9. The Ninth Congress (Cairo, Egypt), 1995.
10. The Tenth Congress (Vienna, Austria), 2000.
11. The Eleventh Congress (Bangkok, Thailand), 2005.
12. The Twelfth Congress (Salvador, Brazil), 2010.
The objectives of the Congresses on Prevention of Crime and Treatment of
offenders are to work out evaluative methodologies for correctional services and
1. Koerber L. : Soviet Russia Fights Crime, p. 177.
2. Now, named as International Congress on Crime Prevention and Criminal Justice onwards
Bangkok Congress of 2005. For further details see Infra chapter on Crime Prevention.
Deeply impressed by the recommendations of U.N. Congress on crime
prevention, many member countries modified their prison rules with a view to
mitigating the rigours of prison life.759 These changes were directed towards reforming
the delinquents and preventing their relapse into crime.760 The prisoners were to be
kept engaged in work suitable to their health and physique and were to receive wages
for their labour.761 They were not to be subjected to unnecessary humiliation but were
to be helped in readapting themselves to social life after their release.
Commenting on the ideals laid down for an efficient prison system, the
Attorney-General of United States once observed that in fact an ideal prison is an
impossibility. The Third International Conference held in Rome in 1955
recommended that work in industrial establishments without confinement is an
effective alternative for imprisonment and admonition of offenders. It also serves the
purpose of adequate punishment in cases of minor offences. During the preceding
thirty five years, a number of conferences and seminars have been organised under
the auspices of United Nations for the prevention of crime and treatment of offenders
which have yielded positive results.
An overall assessment of the working of the Standard Minimum Rules was
made in the Fifth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders held in Geneva in 1975. It was found that not a single
country had honestly claimed to have fulfilled these basic requirements. Only sixty
two countries, which comprised less than half the total member nations replied to an
enquiry on this matter and most of them expressed practical difficulties in adopting
the rules due to financial constraints, lack of qualified staff and shortage of
accommodation.
There has been a suggestion that offender should be compelled to pay reparation
to the victim of his crime and this should also include die court-costs incurred by the
latter. But the success of this proposal is seriously doubted because reparation may be
an adequate relief in civil matters but not in criminal cases. The reason being that
wealthy persons find it easy to secure their discharge by paying off the requisite
amount of compensation. That apart, it would provide opportunities for fraud in
raising fictitious claims of reparation. Other alternatives suggested as a substitute for
imprisonment of offenders are suspending the civil rights such as the right of
citizenship, employment, pension, housing etc. or compulsory work in industrial
establishments. The Columbian legal system, however, considers externment of the
offender from his native place for a certain period of time as an adequate alternative
for prison system. Norway and Sweden nave introduced the system of open camps
for prisoners. The Canadian prisoners are permitted to visit their ailing relatives and
friends. The prisoners in England can even be at the bed side of their dying relatives.
The Japanese prison system considers parole as the most important characteristic of
the progressive treatment system which aims at allowing prisoners to receive
mitigated treatment and at the same time requires them to
discharge their responsibility as a healthy minded citizen.762
Prisons in Ancient India
A well organised system of prisons is known to have existed in India from the
earliest times. It is on record that Brahaspati laid great stress on imprisonment of
convicts in closed prisons. However, Manu was against this system. Kautilya in his
Arthashastra has stated that rulers in ancient India made frequent use of fortresses to
759 Art. 24 of the Swedish Constitution, 1945.

760 Art. 3 of the Yugoslavian Code, 1951.
761 Art. 18 of the Argentine Constitution.
762 Penal and Correctional Institution in Japan, Ministry of Justice, Japan (1957), p. 2526.
lodge their prisoners. He was personally of the view that as far as possible prisons
should be constructed by the road-side so that monotony of prison life is reduced to a
considerable extent. In ancient India, greater emphasis was laid on the spiritual aspect
of human life and therefore, prisons were so modelled as to provide sufficient
opportunity for penance and remonstrance. It was a common practice to keep the
prisoners in solitary confinement so as to afford them an opportunity of self-
introspection.
The object of punishment during the Hindu and Mughal period in India was to
deter offenders from repeating crime. The recognised modes of punishment were
death sentence, hanging, mutilation, whipping, flogging, branding or starving to
death. During the Mughal rule in India the condition of prisons was awefully
draconic. The prisoners were ill-treated, tortured and subjected to most inhuman
treatment. They were kept under strict surveillance and control. The prisons were
places of terror and torture and prison authorities were expected to be rough and
tough in implementing the sentences.
Prisons in British India
The British colonial rule in India marked the beginning of penal reforms in this
country. The British prison authorities made strenuous efforts to improve the
condition of Indian prisons and prisoners. They introduced radical changes in the then
existing prison system keeping in view the sentiments of the indigenous people. The
Prison Enquiry Committee appointed by the Government of India in 1836
recommended the abolition of the practice of prisoners working on roads. Adequate
steps were also taken to eradicate corruption among the prison staff. An official called
the Inspector-General of Prisons was appointed for the first time in 1855 who was the
Chief Administrator of Prisons in British India. His main function was to maintain
discipline among the prisoners and the prison authorities. With this appointment, the
jailor and other petty officials of prisons could no longer abuse their power and
authority.
The second Jail Enquiry Committee in 1862 expressed concern for the
insanitary conditions of Indian prisons which resulted into death of several prisoners
due to illness and disease. It emphasised the need for proper food and clothing for the
prison inmates and medical treatment of ailing prisoners. Thereafter, certain
recommendations were also made by the third Jail Enquiry Committee in 1877
followed by further suggestions in 1889 and 1892 respectively.
As a result of these recommendations, the Prison Act, 1894 was enacted to
bring about uniformity in the working of prisons in India. It empowered the then
existing Provinces to enact their own prison rules for the prison
administration. The Act provided for classification of prisoners and the sentence of
whipping was abolished. The medical facilities which were already made available
to prisoners in 1866 were further improved and better amenities were provided to
women inmates to protect them against contagious disease. Despite these changes,
the prison policy as reflected through the Act, by and large, remained deterrent.1
During the period from 1907 onwards, vigorous efforts were made to improve
the condition of juvenile and young offenders. They were now kept segregated from
hardened adult offenders so as to prevent their contamination. A number of
reformatories and Borstal institutions modelled on British pattern were established
for the treatment of juvenile delinquents during early twentieth century.
It must be stated that the freedom movement had a direct impact on prison
conditions in India. The dimension of national movement during the first half of the
twentieth century brought the Indian prisons into social lime-light. The prison
administrators who were mostly British officials, classified these political prisoners
The Prison
into two broad categories, namely, Administration
(i) violent, and (ii) non-violent. Summary trials
429
were conducted for the political prisoners in jail precincts since most of these
prisoners represented educated middle class or even the prestigious class of Indian
society. The British prison authorities had to frame elaborate and rigorous jail
regulations for the freedom fighters with minutest details about inmates food,
medical care, recreation, family visitors, parole etc. With the additional burden on
prisons due to influx of political offenders there was extra burden on traditional jail
budgets, with the result the conventional system was literally ignored and the
condition of prisons deteriorated beyond imagination. The jail authorities had little
time to attend to non-political prisoners.
Indian Jail Reforms Committee 1919-20
The Indian Jail Reforms Committee 1919-20 which was appointed to suggest
measures for prison reforms was headed by Sir Alexender Cardew. The Committee
visited prisons in Burma, Japan, Phillipines, Honkong and Britain besides the Indian
jails, and came to the conclusion that prisons should not only have deterring
influence but they should also have a reforming effect on inmates. The Committee
underlined the need for reformative approach to prison inmates and discouraged the
use of corporal punishment in jails. It recommended utilisation of prison inmates in
productive work so as to bring about their reformation. The Committee also
emphasised the need for an intensive after-care programme for the released prisoners
for their rehabilitation.
As a measure of prison reform, the Jail Committee further recommended that
the maximum intake capacity of each jail should be fixed, depending on its shape
and size. In the meantime, there was a movement against retention of solitary
confinement as a method of punishment. Taking a lead in this direction, the State of
Bombay abolished solitary cells from its prisons. Other Provinces followed the suit
and reformed their prisons on humanitarian principles.
The Pakwasa Committee in 1949 accepted the system of utilising prisoners as
labour for road work without any intensive supervision over them. It was
1. Vidya Bhushan : Prison Administration In India, p. 21.


from this time onwards that the system of payment of wages to inmates for
their labour was introduced. Certain good time laws were also introduced in jails
under which the inmates who behaved well during their term of imprisonment were
rewarded by suitable reduction in the period of their sentence. The ultimate object of
these reforms was to protect the society from criminals, to reform the offenders, to
deter them and to extract retribution for criminal acts to the satisfaction of the
society.
Indian Prison onwards 1950
After the Indian Independence, the Constitution of India placed "Jail" along
with 'Police and law and order' in the State list of the Seventh Schedule. As a result
of this, the Union Government had literally no responsibility of modernising prisons
and to look after their administration. Unfortunately, even the Five Year Plans
offered a very low priority to prison administration and jail reforms.
The treatment of prisoners on psychological and psychiatric basis received
some attention as a measure of prison reform during 1950's. It was realised that the
rehabilitative activities of the modem prison should generally be of two kinds,
namely ; (1) psychological and psychiatric treatment; and (2) educational or
vocational training programmes. The case-work service is the operating
instrumentality that makes these more specialised forms of treatment effective in
practice. This view also finds support in the prison philosophy advocated by eminent
criminologist G.B Void.1
The Government of India invited Dr. W.C. Reckless, a technical expert of the
United Nations on crime prevention and treatment of offenders, to make
recommendations on prison reforms in 1951. Thereafter, a Committee was appointed
to prepare an All India Jail Manual in 1957 on the basis of the suggestions made by
Dr. Walter Reckless. An All India conference of Inspector General of Prisons of the
States was also convened. Consequent to these efforts, following major policy
guidelines regarding reformation and rehabilitation of prisoners were unanimously
accepted :—
1. The correctional services should form an integral part of the Home
Department of each State and a Central Bureau of Correctional Services
should be established at the Centre.
2. The reformative methods of probatior. and parole should be used to
reduce the burden on prisons.
3. State After-Care units should be set up in each State.
4. Solitary confinement as a mode of punishment should be abolished.
5. Classification of prisoners for the purpose of their treatment was
necessary.
6. The State Jail Manuals should be revised periodically.
Reformative Measures for Prison Inmates

As suggested by Pakwasa Committee, a Model Jail was established at
Lucknow in 1949 where the prisoners were made to work on handloom machines
and engaged in various other home industries. The first women jail was established
in Maharashtra at Yarwada. During the last fifty years, several notable changes have
been introduced in the system of prisons in India. An ideal classification of prisoners
has been worked out to suit the new treatment methods. The prisoners avail the
facilities such as, furlough, ticket on leave, medical aid, educational or occupational
training etc. Thus the modem Indian prison is an institution for the treatment and
reformation of inmates. Open Air Prisons and community service are the latest
1. Void G. B. : Theoretical Criminology (1958 Ed.), p. 293.
developments in this area which have proved beneficial to prison community. In

short, the conservative and out-moded methods of handling prisoners are substituted
by liberal treatment methods. Now, the inmates enjoy considerable liberty in varying
proportion depending on their perversity and response to correctional methods.
Despite the reformative measures listed above, the general condition of prisons
in India is still far from satisfactory. The social contempt for prison life keeps all
sections of society uninformed about what goes on inside the prison cells. The press
and the media seldom highlight the empirical relations of prison life and public
opinion seems little concerned about modernising the prisons.
Plea for setting up Prison Panel
The Government of India appointed an All India Jail Reforms Committee in
1980 with Justice A. N. Mulla as its Chairman. The Committee suggested setting up of
a National Prison Commission as a continuing body to bring about modernisation of
prisons in India.763
The Committee also made a suggestion that the existing dichotomy of prison
administration at Union and State level should be removed. It recommended a total
ban on the heinous practice of clubbing together juvenile offenders with the hardened
criminals in prisons. The atrocities and personal assaults on juvenile prisoners which
came to the notice of the authorities in the notorious Tihar Jail Inmate case764 and the
Agra Protective Home case have served as an eye opener for the administrators.
Consequently, a comprehensive legislation was enacted for the security and
protective care of delinquent juveniles.765 The Mulla Committee also recommended
segregation of mentally disturbed prisoners and their placement in mental asylums.
Yet another recommendation of the Jail Committee was regarding classification
of prisoners on scientific and rational basis. For this purpose, certain advanced
countries have appointed Ombudsman for deciding the prisoner's grievances. Similar
procedure may be adopted in India as well.
Some other recommendations of the Mulla Jail Committee were as follows :—
1. The condition of prisons should be improved by making adequate
arrangements for food, clothing, sanitation, ventilation etc.
2. The prison staff should be properly trained and organised into different
cadres. It would be advisable to constitute an All India Service called the Indian
Prisons & Correctional Service for recruitment of Prison officials.
3. After-care, rehabilitation and probation should constitute an integral part of
prison service. Unfortunately, probation law is not being properly implemented in the
country.
4. The media and publicmen should be allowed to visit prisons and allied
correctional institutions periodically so that public may have first hand information
about conditions inside prisons and be willing to co-operate with prison officials in
rehabilitation work.
5. Lodging of undertrials in jail should be reduced to bare minimum and they
should be kept separate from the convicted prisoners. Since undertrials constitute a
sizable portion of prison population, their number can be reduced by speedy trials
and liberalisation of bail provisions.
763 Justice Mulla Committee submitted its Report on Jail Reforms to Home Ministry on
31st March, 1983.
764 Sheela Barse v. Union of India, AIR 1988 SC 2211.
765 The Juvenile Justice Act, 1986, which was later replaced by the Juvenile Justice (Protection
and Care of Children) Act, 2000 which came into force from April 1, 2001.

It may be noted that the amendment in Cr.P.C. and insertion of a new Section
436-A by the Code of Criminal Procedure (Amendment) Act, 2005 is indeed a
positive step to bring down the rising graph of undertrial prisoners in Indian jails.
The section provides that where an under trial has undergone detention for a period
extending upto one-half of the maximum period of imprisonment specified for that
offence, he shall be released by the Court on his personal bond with or without
sureties.
6. The Government should make an endeavour to provide adequate resources
and funds for prison reforms.
The National Expert Committee on Women Prisoners headed by Justice V.R.
Krishna Iyer in its report submitted to the Government in Febuary 1988 recommended
induction of more women in the police force in view of their special role in tackling
women and child offenders. Envisaging a far greater, significant and useful role of
women police in context of changing needs of society, the Committee observed that
women-police have a greater potential to cool, defuse and de-escalate many
situations and therefore, greater use should be made of them. Women can be
employed in non-combative roles requiring restraint, patience and endurance. The
women police should be an integral part of the police set-up, with a special role in
juvenile crime squads specially in urban areas. They should be specially trained to
deal with agitations and mob upsurges in a humane and sensitive manner and acquire
mastery over tactics of unarmed combat.
Role of Prisons in Modem Penology
The utility of prison as an institution for rehabilitation of offenders and
preparing them for normal life has always been a controversial issue. Stressing on the
need for retaining the institution of prison, Dr. Paripumanand Verma observed that "a
prison symbolises evil and therefore, evil doers find themselves in perfect harmony
inside the house of 'evils'.1 This assertion however, seems to be an over simplification
of facts as this does not hold good for all categories of criminals. There are quite a
large number of offenders who are otherwise well behaved and are persons of
respectable class of society but they fall a prey to criminality on account of
momentary impulsiveness, provocation or due to situational circumstances. There is
yet another class of prisoners who are otherwise innocent but have to bear the rigours
of prison life due to miscarriage 1.Verma Paripumanand : Crime, Criminal and Convict, p.174.
of justice. Obviously, such persons find it difficult to adjust themselves to the prison
surroundings and find life inside the prison most painful and disgusting.
The real purpose of sending criminals to prison is to transform them into honest
and law abiding citizens by inculcating in them a distaste for crime and criminality.
But in actual practice, the prison authorities try to bring out reformation of inmates
by vise of force and compulsive methods. Consequently, the change in inmates is
temporary and lasts only until the period they are in prison and as soon as they are
released, they quite often return to the criminal world. It is for this reason that
modem trend is to lay greater emphasis on psychiatric conditions of the prisoners so
that they can be rehabilitated to normal life in the community. This objective can be
successfully achieved through the techniques of probation and parole. The sincerity,
devotion and tactfulness of the prison officials also helps considerably in the process
of offender's rehabilitation.
If the problem of overcrowding in western prisons is due to permissiveness,
loose marriage ties and adorable values of violence and sex taboos of that society,
the Indian prisons are no better for the reason that economic conditions do not permit
to evolve better modes of prison management. Therefore, restructuring of prisons in

India needs prime attention.
The Problem of Overcrowding in Prisons
It is a known fact that prisons in most parts of India are overcrowded. For
instance, there were 8500 prisoners in Tihar Jail of Delhi in 1995 as against the
capacity of 2500 persons. The baneful effect of overcrowding is that it does not
permit segregation among convicts—those punished for serious offences and for
minor offences. As a result of this, hardened criminals may spread their influence
over other inmates. The juvenile offenders who are kept in jails because of
inadequacy of alternative places where they can be confined, come into contact with
hardened criminals and are likely to become professional offenders. It is in this
backdrop that the problem of overcrowding in prisons needs to be tackled in right
earnest.
The Law Commission in its 78th Report (1979) made some recommendations
for easing congestion in prisons. These suggestions include liberalisation of
conditions of release on bail, particularly release of certain categories of undertrials
on bail. Other methods of reducing overcrowding in prisons may include extensive
use of fine as an alternative punishment for imprisonment, civil commitment and
release on probation. Overcrowding may also be reduced by release on parole a
prisoner after he has served part of the sentence imposed upon him. It is a conditional
release of an individual from prison. The system of remission, leave and premature
release may also be useful in tackling the problem of overcrowding in prison
institutions. The All India Committee on Jail Reforms, headed by Justice A.N. Mulla
has in its Report (1980-83) mentioned about various types of remission and made
useful recommendations to streamline the remission system in India.
The Problem of Prison Discipline
The problem of prison discipline has always been engaging the attention of
penologists throughout the world. The main object of prisonisation is
undoubtedly negative insofar as it aims at generating a feeling of dislike for prison
life among the members of society, the object being to dissuade people from doing
acts which may lend them into prison. Expressing his view about the prison
administration, Donald Taft commented that prisons are deliberately so planned as to
provide unpleasant compulsory isolation from general society. A prison, according to
him, characterises rigid discipline, provision of bare necessities, strict security
arrangements and monotonous routine life. The prison personnel are usually
untrained without any specialised training in their field.1 Although, with the modem
facilities available to inmates, the rigours of prison-life are considerably mitigated
but they are likely to become restive if not kept under proper discipline. There is yet
another reason to justify the need for strict discipline in prison. One might be
imprisoned either for the purpose of custody, control and discipline or from being
prevented to escape or being sent to a correctional institution for treatment. Whatever
be the object, it is certain that the life inside prison necessarily pre-supposes certain
restrictions on the liberty of inmates against their free will. This consciousness of
subjection to compulsive forces of the State through the agency of prison often leads
to scuffle between prison officials and the inmates. The custody of prisoners should
therefore, ensure their safety and security as also minimise the chances of conflict
with prison administrators.
Another problem which is so often faced by the prison authorities is to guard
against the possibility of prison-riot which is essentially an outcome of the combined

venture of inmates. In early times when prisoners were lodged in separate cells, this
possibility was completely ruled out as they had no chance of communicating with
each other in the modern sense. Today, the difference between the prison life and
free life is reduced to such an extent that even the prisoners have become conscious
of their rights and obligations of prison authorities towards them. Their free
intermingling with the outside world provides them opportunities to unite and raise a
common front against the prison administrators and slightest provocation is sufficient
to stimulate unrest. The general causes of such riots and disturbances are political
instigations, crude disciplinary incidents, monotonous routine of prison life,
separation from members of the family, differences with the prison staff and step-
motherly treatment of wardens and guards towards certain inmates.
The Problem of Prisoners' Health
The state of health of prisoners is also an important issue which needs attention
of the prison authorities. The term "state of health" includes the description regarding
past and present suffering of the disease of the new entrants and its duration and
treatment taken etc. Sections 37, 39-A, 39-B and 39-C of the Prisons Act deal with
sick prisoners and require that prisoners at the time of their entry in prison be asked
about their health, particularly relating to tuberculosis and AIDS etc. and the
treatment which they have undergone for the disease, so that such prisoners apart
from being given special treatment may be segregated from rest of the inmates. It is
the duty of the State to ensure that such type of serious diseases are cured and not
allowed to spread, not only to other prisoners but also the other persons living
outside the prison.
In order to tackle the problem of prisoners suffering from serious diseases,
volunteers may be trained in prison for nursing so that they effectively help the
suffering inmates and develop among them a system of self-help for protection
against diseases like T.B. or AIDS etc.
The High Court of Madhya Pradesh, in Anil Kumar v. State of M.P.,766 (decided on
November 30, 1999), enumerated the factors which account for increase in the
number of prisoners exposed to infection of tuberculosis in prisons. They are as
follows :—
1. delay in diagnosis, neglect of prisoner's health problems, insufficient
health services in prison and inadequate sputum smear microscopy
facilities;
2. failure of medical services to refer T.B. suspects for diagnosis or to
initiate timely treatment;
3. transfer of prisoners with infectious tuberculosis between and inside
prisons;
4. overcrowding and prolonged confinement inside cells;
5. failure to segregate infectious cases from other prisoners;
6. sub-standard treatment resulting in failure to cure patients and prolonged
infectiousness;
7. poor ventilation and poor nutrition may also lead to cause of disease.
The Court issued directions to the State Government to initiate adequate steps to
control spread of diseases in prisons.
The Problem of Criminality in Prisons
Yet another problem relating to prison discipline concerns criminality among
inmates inside the prison. The continuous long absence from normal society and
766 2000 (1) C. Cr. J 118 (MP) (C. Cr. J stands for Current Criminal Judgments).
detachment from members of the family deprives the inmates of their sex
gratification which is one of the vital biological urges of human life. Not being able
to control this sex desire, the prisoners quite often resort to unnatural offences such
as homosexuality, sodomy etc. Therefore, such offences and personal assaults are
common inside prison walls. To suppress this menace, some of the advanced
countries have permitted periodical conjugal visits for inmates so as to offer them a
legitimate opportunity to pacify their sex urge and thus eliminate crimes of this
nature in prisons. Some penologists have, however, opposed the idea of 'conjugal
visits' on the ground that sexual deprivation must continue as one of the inevitable
suffering of imprisoned life. That apart, conjugal visits seem unnecessary for three
obvious reasons, namely, most prisoners are imprisoned for six months or less, quite
a large number of them are unmarried or separated from their wives ; and the
provision of "home leave" and parole offers a much better and more natural solution
than conjugal visits in the unfamiliar and embarrassing atmosphere of a prison.
The Indian prison management does not accept the idea of conjugal visits as the
system of furlough and parole serves a more useful purpose so far marital
relationship between spouses are concerned. That apart, such conjugal visits cannot
be appreciated for the reason of morality and ethical
considerations keeping in view the Indian values and cultural norms. The Prison Act,
1894 provides for release of prisoners on furlough and parole so as to maintain unity
of their family life.
Another cause of criminality among prison inmates is their frequent quarrelling
inside the institution. Every inmate tries to establish his superiority over his fellow
prisoners. Therefore, prisoners often narrate with exaggeration the tales of their
adventure and the dangers overcome by them while committing crime. The
conversation on the subject often leads to a heated discussion and eventually results
into use of force and intimidation. At times, the situation takes the shape of a group
rivalry resulting into clashes between the inmates. There are occasions when inmates
quarrel on trifling matters like distribution of bread, toilets, etc. or the differences of
their opinion about a particular warden, guard or jailor.
The offences of petty thefts are also common in prisons because the inmates are
supplied only the articles of bare necessities. Obviously the articles usually stolen are
usually soap, oil, utensils or a few loaves of bread which are supplied to inmates in
prisons.
Last but not the least, the distrust and lack of faith among inmates for the
prison authorities is yet another cause of tension in prisons. The tendency of
disobedience to prison officials and defiance of prison regulations is common with
prisoners. The officials of the prison, namely, the jailors, superintendents, wardens
and guards on their part, are generally rough and tough with the inmates. Some of
them even resort to corrupt practices and extend undue favours to certain inmates in
exchange for petty gains. This obviously causes resentment among other prisoners
and thus a kind of cold war ensues between the inmates on one hand and the prison
authorities on the other.
Self-Government in Prisons
In order to ensure discipline and obedience among inmates experiments on self-
government in prisons have been carried out in America and elsewhere. The
underlying purpose is to ensure complete freedom to prisoners from external control.
Under the system of self-government in prisons, the inmates are to elect some of
their colleagues as their representatives and the entire prison management is run by
this elected body of inmates. They have complete control over mess and are expected
to look after the interests and welfare of their fellow prisoners. The self-government
of prisoners in Osborn (U.S.A.) jail indicated that the system proved to be very
successful and the number of escapes was almost negligible. The inmates generally
behaved well and never tried to misuse the liberty extended to them.
In India, however, the system of self-government in prisons has not been very
successful. The reason for this unsatisfactory condition is perhaps the lack of general
moral discipline among the criminals who are generally illiterate persons from the
lower strata of society. It is for this reason that instead of introducing complete self-
government system, India has adopted a system of partial self-government in its
prisons. Under this system, the prisoners who have good prison record are attached to
work with wardens and guards of the institution and thus they act as a common link
between the prison authorities and the fellow inmates. They are extended certain
facilities and are even allowed to move out of the prison occasionally during the
course of their work. This proves helpful in many ways. Firstly it develops a sense of
duty honesty, trust and loyalty among the prisoners and secondly, it has a
psychological effect on other inmates as they are convinced that a disciplined
behaviour in prison would entail them certain facilities including some reduction in
their term of sentence like their fellow prisoners.
Prison Labour
Utilisation of prisoners in productive work has been accepted as one of the best
methods of bringing about rehabilitation of offenders. The XIIth International Penal
and Penitentiary Conference held at Hague in 1950 suggested 'work' as the best
alternative for channelising the potential of prisoners for a useful purpose. Keeping
the prisoners engaged in productive work would be helpful for their physical and
mental fitness. It would also infuse self-confidence among them and they can think of
returning to society as a law abiding citizen. The greatest advantage of putting
inmates to work as suggested by the penitentiary Conference is that the wages earned
by the prisoners can be utilised for supporting their family and dependents. Thus it
would save the entire family of the prisoner from being ruined. In this way the
inmates can help and support their family from inside the prison itself. In short, work
would be beneficial to inmates and at the same time remunerative to the State. It is
further suggested that the working conditions of prisoners should be at par with free
workers so that the values of human dignity are respected767 and prisoners are
adequately compensated for the injuries sustained or professional sickness suffered
by them during work. The system of parole and probation and other treatment
methods have helped considerably in the rehabilitation of prisoners.
The Supreme Court of India was called upon to decide the delicate issue
whether prisoners who are required to do labour as part of their punishment, should
necessarily be paid wages for such work at the rates prescribed under the Minimum
Wages Act. Answering in the affirmative, the Apex Court in State of Gujarat & another
v. Hon'ble High Court of Gujarat,768 observed,
"Reformation and rehabilitation is basic policy of criminal law,
hence compulsory manual labour from the convicted prisoner is
protected under Art. 23 of the Constitution. Minimum wages be paid
to prisoners for their labour after deducting the expenses incurred on
them. No prisoner can be asked to do labour free of wages. It is not
only the legal right of a workman to have wages for the work, but
also a social imperative and an ethical compulsion. Extracting
767 Barnes & Teeters : "New Horizons in Criminology" (3rd Ed.), p. 541.
768 AIR 1998 SC 3164.
somebody's work without giving him anything in return is only

reminiscent of the period of slavery and the system of begar."
Referring to the Justice Mulla Committee Report (1983), the Supreme Court
observed that it contains a lot of very valuable suggestions as :
"All prisoners under sentence should be required to work subject to
their physical and mental fitness as determined medically. Work is
not to be conceived as additional punishment but as a means of
furthering the rehabilitation of the prisoners, their training for work,
the forming of better work habits, and of preventing idleness and
disorder....."
The Court observed that the rates of wages for prisoner's work should be fair
and equitable and not merely nominal and paltry. These rates should be standardised
so as to achieve a broad uniformity in wage system in all the prisons in each State
and Union Territory. However, the State Government may be permitted to deduct the
expenses incurred for food and clothes of the prisoners from their wages. There is
nothing uncivilised or unsociable in it.
The Court further recommended that the State Government should make law for
setting apart a portion of wages earned by the prisoners to be paid as compensation to
deserving victims of the offence the commission of which entitled the sentence of
imprisonment to the prisoner.
The Prison Community
Talking about the prison community, Dr. Sutherland observed that an offender
entering a prison for the first time is introduced to the culture in much the same way
as a child is introduced to the ways of behaving with his elders. According to him,
the general process by which a child is taught the behaviours of his group is called
'socialisation' and the comparable process among inmates is named prisonisation.1
Every new prisoner has to learn the technical rules of the prison in which he is
lodged. Gradually, he adapts himself to the conditions of prison life. He is expected
to be friendly and loyal to his fellow prisoners. He is to be co-operative with the
prison officials and one who does not follow these traits is ridiculed by his fellow
inmates. It is interesting to note that prisoners classify themselves informally into
different groups according to their reaction to prison life and participation in prison
activities. A few of them assume the role of 'leaders' and pose to look after the
interests of other inmates. They often win the confidence of wardens and guards of
the prison and enjoy certain privileges unofficially. It is usually said that in matters
of food, articles of mess and toilet, these so called 'leaders' manipulate things and
even act as racketeers in collusion with the prison staff and earn huge profits. In
return, they secure certain unofficial privileges for their fellow prisoners. Thus an
understanding is reached between the prison community and the prison officials
through these leaders which helps in maintaining harmony inside the institution. The
prisoners who are sentenced for political reasons often assume this role by virtue of
their superior status and knowledge. As Sutherland puts it, "the administrator assigns
powers unofficially to certain inmates who control other inmates and thus he enlists
some inmates to aid and control other inmates.2
Classification of Prisoners
At the time when reaction to crime was purely punitive, there was no need for
classifying prisoners and all of them were flocked together in a single prison. This
system of singular treatment of criminals, however, turned the prisons into a living
hell on earth with all sorts of vices. The sole object of prisonisation in those days was
to subject the inmates to maximum torture and
1. Sutherland & Cressey : "The Principles of Criminology" (6th Ed.), pp. 497-498.
2. Ibid.
pain and therefore, there was no need to classify them. With the evolution of penal
science during the late eighteenth and early nineteenth century the offenders were
classified into different categories according to their sex, age and gravity of offence.
Even at this time, objective approach to prisoners was not known. It was towards the
end of 19th century that the idea of individualisation of prisoners drew attention of
penologists and this principle has since then been firmly established into practice.
Individualisation of offender as a method of his rehabilitation has now become the
cardinal principle of modem penology. Evidently, in the changed circumstances the
earlier classification of criminals on the basis of their physical differences serves no
useful purpose. Therefore, modem penologist have worked out an objective
classification of prisoners according to differential treatment. In spite of being
lodged in maximum security prisons, the modern prisoners are placed in quasi-penal
and even non-penal institutions for their reformation. The prisoners are now
classified according to the treatment to which they are likely to respond most
favourably. In the modem context, social-defence, namely, the protection of society
from criminals is the prime object of punishment while classification of prisoners for
treatment is the method of it. To achieve this end, the criminals are classified into
two broad categories, viz., (1) hardened criminals who are fit for treatment in a
conventional jail, and (2) casual criminals, who are fit for treatment in a medium-
custody jail or even fit to be sent to a borstal or reformatory or released on probation.
Under the present correctional system in United States the task of classifying
inmates for their rehabilitation is performed by the following agencies :
(1) The Central Classification Centre ;
(2) The Classification Committee ; and
(3) The Reception Centre.
All the convicted persons are first brought before the Central Classification
Centre where their antecedents, past history and mental attitude etc. are thoroughly
examined by the expert psychologists and psychiatrists. If in the opinion of these
experts the inmate is considered responsive to reformation, he is sent to an
appropriate correctional institution as recommended by the Central Classification
Centre.
There is a Classification Committee associated with each correctional institution
which decides the outline of treatment programme for individual inmate according to
his mental attitude, psychology and possible reaction to the treatment.
The Reception Centre at each correctional institution, on the other hand,
receives the new inmate on a trial basis for a month or so and plans to prepare him
for his subsequent stay in the institution. Thus, the major function of Reception
Centre according to Donald Taft is "inmate-orientation through group meetings,
pictures, booklets and interviews".
It may be suggested that if this pattern of classification of prisoners is adopted
in India, the prison authorities may find it easy to tackle the problems of prison and
prisoners and at the same time it may also accelerate the process
Overall Statistical View of Indian Prisons

The snapshot on prison statistics, as published by the National Crime Record
Bureau (NCRB) New Delhi as on 31st December 2007 shows that the details
regarding various persons and different categories of inmates in India are as follows :
Jails
Total Jails in India—1276
Central Jails—113 District
Jails—309 Sub-Jails—769
Open Jails—28 Special
Jails769—29 Women Jails—
16 Other Jails—41 Total
Capacity of Jails in India
Total capacity 2,77,304
Central Jails 1,23,079
(44.4%)
District Jails 1,03,853 (37.5%)
Sub-Jails 37,532 (13.5%)
Women Jails 3,047 (1.1%)
Open Jails 3,076 (1.1%)
Other Jails 6,717 (2.4%)
The total staff manning these jails numbered 649574 of which 2607 were
women at the end of year 2007).
Total number of Jail Inmates
Total Inmates in Indian Jails is 3,76,396 inc. 3,60,995 Males and 15.40%
females.
Mentally ill—368
Convicts—1,20,115 inc. 1,16,057 males and 4,058 females.
Undertrials—2,50,727 inc. 2,39,714 males and 11,013 females.
Detenues—7649
Others—16039
Total Women Inmates—9463
Total Foreign Inmates—4,550 inc. convicts 1088, undertrials 3,366, Detenues
96.
Out of the total number of convicted inmates, 308 convicts including 6 females
lodged in different jails of the country (at the end of Dec. 2007) were awarded death
sentence while 63,828 were undergoing sentence of imprisonment for life. The
number of recidivists was 13,904, which accounted for 4.7% of the total convicts.
Jail Reform Committee's (1980-83) View on Classification of Prisoners
While agreeing that segregation of offenders on the basis of sex, age, criminal
record, social background is an essential feature of modern prison system, the Jail
Reforms Committee of 1980-83 observed that even today the undertrial prisoners,
prisoners sentenced to short, medium and long terms of imprisonment, habitual
offenders, lifers, hard and dangerous prisoners, juvenile or young offenders, women
offenders, civil and political prisoners, detenues under National Security Act, FERA,
769 Special Jails are meant for confinement of particular class of prisoners such as those who have
committed crimes like terrorism, organised crime, habitual offenders, serious violation of
personal discipline etc.
TADA,770 NDPS Act, etc. are all kept together and 'in reality segregation has become
a provision only on paper'. The Committee therefore, recommended a variety of
institutions for catering to the needs of different categories of offenders. They are as
follows :—
1. Separate prisons or annexes for undertrials;
2. Separate prisons or annexes for women;
3. Separate semi-open institutions for juveniles and young offenders with
minimum security arrangements;
,4. Maximum security prisons for professional and hardened criminals and
gangsters who indulge in organised criminality;
5. Separate camps for offenders courting arrests in connection with social or
political movements or participating in strikes, hartals, protests etc.
These recommendations have been accepted in principle by the Government but
the major problem is about the resources needed for setting up these different
institutions. The State Governments must tackle the problem on priority basis.
Prison Rules
Prison administration being a state subject the State governments have framed
Prison rules under the Prison Act which are more or less similar with slight
modification here and there keeping in view the local conditions. These Rules
invariably provide that :—
1. Every prison shall maintain a Register of prisoners with numbered pages
in which shall be recorded information concerning identity of prisoners,
reason for his commitment and authority there for, and also the day and
hour of his entry and release.
2. No person shall be lodged in the prison without a valid commitment
order.
3. Different categories of prisoners shall be kept in separate institutions or
parts of institutions taking into account their age, sex, criminal record,
the legal reason for their detention arid the necessities of their treatment.
Thus,
(a) Male and female prisoners shall be, as far as possible, lodged in
separate institutions.
(b) Undertrials should be kept segregated from the convicted prisoners.
(c) Persons imprisoned for non-payment of debt and other civil
prisoners should be kept separate from other convicts who are
imprisoned by reason of criminal offence.
(d) Young prisoners (Juveniles) shall not be kept in prison, instead they
shall be sent to Juvenile Homes etc.
4. The accommodation provided for use of prison inmates and dormitories
shall meet the minimum requirement of space, health, light, ventilation
etc. with adequate sanitation installations and bathing/clothing facilities.
5. There must be adequate supply of food, water and medical treatment for
prisoners. Each prison must have at least one medical practitioner to
look after the health and hygienic conditions of the prisoners.
6. Adequate facilities for physical exercise and entertainment should be
available in the prison.
770 TADA was subsequently repealed and later POTA was introduced in its place in 2002. This in
turn is also repealed by the Unlawful Activities (Prevention) Act, 1967 as amended by the Act of
2004.
7. In women's prison institution, there should be special accommodation for

all necessary pre-natal and post-natal care and treatment. They may be
provided facility to keep their babies with them during custody.
8. There should be a ban on instruments of restraint such as hand-cuffs,
chains, iron bars etc. as a measure of possibility of prisoner's escape or
their transfer and transportation for court attendance.
9. Prisoners may be allowed to meet with their family, relatives and
reputable friends at regular intervals under the supervision of jail guards.
10. Adequate educational and library facilities should be available in prison
as also the vocational training programs for the prisoners.
11. Adequate arrangement should be made for protection of prisoner's
property while they are in jail.
12. Periodical inspection should be carried out.
Rights of Prisoners
A convict lodged in a prison is not denuded of all his fundamental rights though
it is true that he does not enjoy all the fundamental rights like other persons because
of the fetters imposed on him in accordance with the law.
The High Court of M.P. in S.P. Anand v. State of Madhya Pradesh} has extensively
dealt with the basic rights which are available to prisoners despite curtailment of their
right to liberty. For example, a prisoner must have reasonable accommodation to live
a healthy life as provided under the Prison Rules.771
The Supreme Court in State of Gujarat v. High Court of Gujarat,772 reiterated that
reasonable wages should be paid to prisoners for the work/labour done while in
prison and laid down guidelines for the same. The Court further held
771 Rules 22, 29, 30 of M.P. Prison Rules, 1968.

772 AIR 1998 SC 3164.
that conviction for a crime does not reduce the person into a non-person whose rights
are subject to whims of prison administration.
Referring to an American case on Prisoner's right, i.e., Procunier v. Martineg,442
the Court emphasised that since the liberty of a prisoner is constitutionally curtailed
due to his confinement, his interest in the limited liberty left to him becomes all the
more substantial.
All labour exacted from prisoners should be classified as "hard", "medium" and
"light" labour according to the physical exertion put in for performance of that work,
the priority for selection of prisoners for work should be in the following order :—
(i) Prisoners undergoing life imprisonment with rigorous imprisonment;
(ii) Other prisoners undergoing rigorous imprisonment;
(iii) Prisoners undergoing simple imprisonment who are willing to work;
(iv) Undertrial prisoners who are willingly ready to render their services may
be employed if prisoners of above categories are not available. They
should be paid equitable wages and not minimum wages.
The human rights of prisoners must be protected at all costs and the convicts
should be entitled for reparation.
The Problem of Undertrial Prisoners
The problem of undertrial prisoners has assumed new proportions in recent
years. Thousands of undertrial prisoners are languishing in various jails in different
States for periods much longer than the maximum term for which they could have
been sentenced, if convicted. Many of them are innocent persons who are caught in
the web of the law eagerly waiting for their trial date and several of them are even
prepared to confess their crime and accept the sentence. There are several reasons for
this miserable plight of undertrials, some of them being, courts' inability to take up
the cases because of their busy schedule, the prolonged police investigation,
unsatisfactory bail system and legal representation being beyond the meagre means
of poor offenders.
The pre-trial detention essentially involves the question of liberty, justice,
public safety and burden on public exchequer. The poor are generally subjected to
pre-trial detention mostly because they cannot afford sureties and stand personal
bonds. It not only affects the family life of the undertrial but also adversely affects
his morale due to vicious impact of prison environment. Mr. Justice V.R. Krishna Iyer
highlighted the agonies of pre-trial detenues in the following words :
"The consequences of pre-trial detention are grave. Defendants presumed
innocent are subjected to psychological and physical depravation of jail life,
usually under more onerous conditions than are imposed on convicted
defendants. The jailed defendant loses his job if he has one and is prevented
from contributing to the preparation of his defence. Equally important, the
burden of his detention frequently falls
Expressing grave concern at the distressing condition of undertrials in Bihar
Jails, the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar774
observed that incarceration of undertrials who had virtually spent their period of
sentence was clearly illegal and a blatant violation of their fundamental rights
guaranteed under Artice 21 of the Constitution of India. The Court observed that
"speedy trial" is a constitutional mandate and the State cannot avoid its constitutional
773 Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47 at p. 52 para 14.
774 AIR 1979 SC 1360, See also Guru Sevak Singh v. State of Punjab (1988) Cr LJ 1605 (P & H) ;
Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, 1995
SCC (Cr) 39 ; R.D. Upadhayaya v. State of Andhra Pradesh, 1966 SCC (Cr) 519 ; 'Common
1.Cause’—A
(1974) 40Registered
L Ed. 2DSociety
224. v. Union of India, (1996) 4 SCC 33.

obligation by pleading financial or administrative inability. Consequent to the
directions issued by the Supreme Court in this case, the State of Bihar released as
many as 18,000 under-trial prisoners in 1981 and other States followed the suit.
Despite the Supreme Court's landmark decision in Hussainara, the condition of
undertrials in prisons is no better and more than one lakh of undertrials prisoners are
languishing in the prisons of India at present. The provision of Section 167 of the
Code of Criminal Procedure, 1973 regarding time limit for completion of police
investigation and that of free legal aid to indigent and poor undertrials or
liberalisation of bail etc. have not helped in minimising the number of undertrial
prisoners in Indian jails.
One of the reasons for multiplying number of undertrial prisons each day is the
system of bail which operates very harshly against the poor because they find it
difficult to furnish bail even without sureties. Being unable to obtain their release on
bail they have to remain in jail until such time as the Court takes up their case for
trial. Obviously, the pre-trial detention disrupts their family life and leads to
disastrous economic consequences. They are also prevented from taking necessary
step to prepare for defence. Although the provisions contained in Articles 39-A and
22(1) enumerate the constitutional rights of the accused to be provided free legal-aid
services and the services of the counsel of their choice to the indigent accused
persons and this help is implicitly guaranteed under Article 21, but the fact remains
that the functioning of judicial system still weighs heavily against the poor as
compared with the non-poor.
Althougher the term 'bail' has not been defined in the Code of Criminal
Procedure, 1973, but offences are classified as bailable and non-bailable. Section 436
Cr.PC. provides that a person is entitled to be released on bail as soon as he/she is
willing to furnish bail. However, in case of non-bailable offences, the accused can
only be released on bail by the Court if it is satisfied that the person shall attend the
court to stand trial; and will not temper with evidence or influence or pressurise the
witnesses or obstruct the police investigation in any manner and will not commit any
other offence or obstruct the cause of justice.775
Despite the aforesaid legal provisions relating to bail under the Code of
Criminal Procedure, the bail system causes discrimination against the poor as they
are not able to furnish bail on account of their poverty even though their
offence is bailable, whereas the such and wealthy can easily pay off the bail amount
and secure a let off. There are cases where a large majority of those who are brought
before the court in criminal cases are so poor that they find it difficult to furnish bail
even when the bail amount is meager.776
The Supreme Court in a number of cases has realised that pre- trial detention is
avoidable if the bail provisions are liberally interpreted by the courts. Indiscriminate
arrests by police, ignorance about legal rights, delay in criminal trial, reluctance of
courts to grant bail and inability of accused persons to furnish bail or surety are some
of the reasons for increasing the number of undertrials.777
The Supreme Court in Hussainara Khatoon v. State of Bihar,778 came out with a
suggestion that where the court is satisfied after taking into account on the basis of
information placed before it that the accused has his roots in the community and is
not likely to abscond, it can safely release the accused on personal bond. In order to
determine whether the accused has his roots in the community which would deter
775State of Rajasthan v. Balchand, (1977) 4 SCC 308 para 2.

776 Report of the Legal Aid Committee (Gujarat) 1971 headed by Justice RN. Bhagwati, p. 185.
777 Gudikanti Narsimhulu v. Public Prosecutor, A.P. High Court, (1978) 1 SCC 240; Common
Cause—A Regd. Society v. Union of India, (1996) 4 SC 33.
778 AIR 1979 SC 1360 (1364).
heavily on the innocent members of his family."1

him from fleeing, the Court should take into consideration the following factors
regarding the accused person :—
(1) length of his residence in the community;
(2) his employment details and financial condition;
(3) his family relationship and background;
(4) his reputation, character and past antecedents;
(5) his prior criminal record, if any;
(6) the identity of responsible members of the community who would vouch
for his reliability;
(7) the nature of offence and possibility of his conviction etc.;
(8) any other factor indicating the ties of the accused with the community or
bearing on the risk of wilful failure of the accused to appear before the
Court when required.
The Court held that there are four major grounds when the accused may be
denied bail. They are (1) where the offence is grave; (2) where the accused is likely
to interfere with witnesses; (3) if he is likely to repeat the offence; and
(4) he is likely to abscond.
The Supreme Court in Kalyan Chandra Sarkar v. Rajesh Pjmjan alias Pappu Yadav,*
observed that fundamental right of an undertrial prisoner under Article 21 is not
absolute and therefore, it may be circumscribed by prison manual and other relevant
statutes imposing reasonable restriction on such right. In this case, the jail authorities
of Bihar were unable to control illegal activities of the accused who was holding
regular 'Darbars' in jail. The Supreme Court ordered his transfer to a prison outside
Bihar and consequently he was transferred to a Maharashtra jail. The Court held that
it had the power to order such transfer in exercise of its powers under Article 142 of
the Constitution though the jail
manual did not provide for such transfer.

With a view to bringing down the number of undertrial prisoners in different
jails of the country, the Code of Criminal Procedure, 1973 as amended in 2005
provides779 that where a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (except an offence which is punishable
with death) undergone detention for a period extending upto one-half of the
maximum period of imprisonment specified for that offence under that law, he shall
be released by the Court on his personal bond with or without sureties.
The section provides that after hearing the prosecution side and for reasons to
be recorded in writing, the Court may order the continuation of detention of such
person for a period longer than one-half of the said period or release him on bail on
personal bond with or without sureties. But in no case any undertrial person can be
detained for a period more than the maximum period of imprisonment provided for
the said offence under the law.
The explanation appended to the new Section 436-A inserted by the Cr.P.C.
(Amendment) Act, 2005 makes it clear that the period of detention under this section
for granting bail or the period of detention passed due to delay in proceedings caused
by the accused shall be excluded.
The Commonwealth Human Rights Initiative activist Mandeep Tiwana has
raised a very pertinent question as regards the misfortune of those undertrial
prisoners who after languishing in jail for years are acquitted for want of sufficient
evidence against them Or the prosecution witnesses turning hostile. Can the State
compensate for the agony, mental torture, deprivation of family life suffered by them
during all these years which they spent in jail and can their lost honour or reputation
be restored by law? This question still remains unaddressed despite the Cr.P.C.
Amendment of 2005 though it has provided relief to undertrial prisoners only to a
limited extent.
Prison Authorities to inform undertrials about their legal rights
Despite the fact that the provisions to avoid unnecessary detention of undertrial
prisoners exist in Section 167 or Section 437 (6) Cr.P.C. their non-implementation
has resulted in constant increase in undertrial's population in prisons. Even after the
insertion of a new section 436A in Cr.P.C. by the Amendment Act of 2005, there is
no substanticl reduction in the number of undertrial prisoners languisting in jails.
Expressing concern for non-implementation of these beneficial provisions for
undertrials, some High Courts780 have issued directions to prison authorities to release
undertrial prisoners invoking these provisions.
The High Court of Patna initiated a PIL suo motu781 for effective implementation
of the provisions of Section 436-A Cr.P.C. entrusting the Jail Superintendent with the
primary duty to inform the undertrial prisoners about
779 A new Section 436-A has been inserted by the Cr.P.C. (Amendment) Act, 2005 (Act
25 of 2005).
780 The High Court of Kerala in 2006, Gauhati in Sept. 2008 and Bombay in October
2008 issued directions in this regard.
781 News Report in Times of India (dt. 26-6-2006) v. State of Bihar, CWJC No. 7363/2006 decided
or 16-10-2006.
the benefit of Section 436- A and directed I.G. (Prisons) to monitor the whole
process of release of undertrial prisoners under the provisions of the Code of
Criminal Procedure.
The Model Prison Manual, 2003, as approved by the Central Government in
2004 also provides782 that the custody and security of prisoners and undertrials within
the prison institution are fundamental duties and responsibilities of prison
authorities. Rule 4.07.1 of the said manual further provides that the executive staff of
the prison i.e. the Superintendent, Addl. Supdt., Deputy Supdt., Asstt. Supdt. and the
prison-guards owe a primary responsibility to ensure that the human rights to which
the prisoners are entitled are not allowed to be violated. All prison Superintendents
must maintain a register of all prisoners containing details about their entry in prison
and time (date) of release and inform about the same to the prisoner concerned. They
should also appraise the undertrials about the bail provisions and their timely
utilization for their release.
Bar Against Hand-cuffing
The prisoners are quite often handcuffed while being brought from prison to
court and vice versa for the sake of security and discipline. Even suspects and
undertrials are subjected to this humiliating treatment. However, the Supreme Court,
in Prem Shankar Shukla v. Delhi Administration783 observed that, "handcuffing is, prima
facie, inhuman and therefore, unreasonable and harsh and at the first flush
arbitrary....to inflict 'irons' is to resort to zoological strategies repugnant to Article
21". The Court pointed out that where in extreme cases the accused is to be
handcuffed, the escorting authority must inform the court and record reasons for
doing so. It is only after getting judicial approval that handcuffing should be resorted
to.
Earlier, in 1978, the Supreme Court in Sunil Batra and Sobraj's case,784 was seized
with the question of legality of prison bars and fetters on undertrials and held that
handcuffing was violative of Articles 14, 19 and 21 and be used only in exceptional
case., that too with the prior judicial sanction. The two petitioners in this case were
Sunil Batra, an Indian under death sentence and Charles Sobraj a French national, an
undertrial facing detention under MISA from July 1976 and accused of jail-break
and other serious charges. The Court held that locomotion is one of the facets of
personal liberty and therefore, should not be curtailed as far as possible. However,
where absolutely necessary, handcuffing should be only for small spells and grounds
for 'fetters' shall be given to the prisoner and recorded with due approval of the
judicial authority.
Solitary Confinement
The validity of keeping prisoners under solitary confinement in the name of
prison discipline was also challenged before the Supreme Court in Sunil Batra's785 case
on the ground that it was most inhumane and painful. The petitioner Batra was
condemned to death on a murder charge and was lodged in a single cell completely
isolated from all inmates. He challenged this quasi-solitary confinement and alleged
that Section 30 of the Prison Act, 1894 was violative of Arts. 14, 19 and 21 of the
Constitution. Rejecting the petition, the Court held that putting a prisoner who is
782 Rule 4.05 of Model Prison Manual 2003.

783 AIR 1980 SC 1535 ; see also Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939.
784 AIR 1978 SC 1675.
785 Ibid.
under a 'finally executable death sentence' in confinement is not solitary confinement

since it is only a part of procedure for execution of death sentence. The Supreme
Court has laid down the parameters of solitary confinement in its decision in Kishore
Singh Ravinder Dev v. State of Rajasthan.’
Prison Reforms
Undoubtedly, the condition of modem prisons is better than that in the past but
still much remains to be done in the direction of prison reforms for humane treatment
of prisoners. The treatment of prisoners should be in accordance with the
constitutional mandates to secure them the basic rights. Emphasising the need for
change in the attitude of jail authorities towards the prison-inmates, the Supreme
Court in Mohammad Giassudin v. State of Andhra Pradesh,786 observed :
"Progressive criminologist across the world will agree that the
Gandhian diagnosis of offenders as patients and his conception of
prisons as hospitals—mental or moral—is the key to the pathology
of delinquency and the therapeutic role of punishment. The whole
man is a healthy man and every man is born good. Criminality is a
curable deviance. Our prison should be correctional houses, not
cruel iron arching the soul".
The following modifications in prison administration may be suggested for
improving the efficiency of these institutions :
(1) The maintenance of prison establishment is an expensive affair. It is in fact
an unevitable burden on the public exchequer. Therefore, the offenders should be
confined to prison for only a minimum period which is absolutely necessary for their
custody. The elimination of long term sentences would reduce undue burden on
prison expenditure. It is further suggested that where the term of imprisonment
exceeds one year, a remission of one month or so per year be granted to the inmate so
as to enable him to go to his home town and meet his near relatives. This will help in
his rehabilitation and after his release he can face the outside world courageously
casting aside the stigma attached to him on account of prisonisation. The periodical
furlough granted to prisoners in India under the Prison Act and the rules framed
thereunder is intended to achieve this objective.
(2) The women prisoners should be treated more generously and allowed to
meet their children frequently. It will keep them mentally fit and respond favourably
to the treatment methods. A liberal correctional and educational programme seems
necessary in case of women delinquents because they need lesser control and custody
due to their feminine temperament. Particularly, the women who fall a prey to sex
offence should be treated with sympathy and their illegitimate children should be
assured an upright life in the society. Women prisoners should also be allowed to
meet their sons, and daughters more frequently, particularly the attitude in this regard
should be more liberal in case of undertrial prisoners.787 Women offenders should be
handled only by women police or prison officials. The idea of setting up separate
women jails exclusively for women prisoners, however, does not seem to be
compatible keeping in view the huge expenditure involved in the process.
The Supreme Court in R.D. Upadhyaya v. State of Andhra Pradesh and others,788
expressed its concern for the children living in jail with their prisoner mother and
786 AIR 1977 SC 1926.

787 Francis Coralie Mullin v. Union Territory Delhi, AIR 1981 SC 746.
788 AIR 2006 SC 1946.
laid down detailed directives as regards adequate food, shelter, medical care,
clothing, education and recreational facilities for such children which are declared to
be child's right. The Court further directed that in case of a child born out of a
prisoner mother, his birth place should not be recorded as 'prison' in the birth
certificate. A child above the age of 6 years should not be kept with female
prisoners. The Court issued directives to the States to amend their jail manuals
accordingly. The Court opined that these directives were necessary keeping in view
the fact that jail environment is certainly not congenial for the development of the
children and for securing children their inherent right to enjoy happy childhood.
The co-ordinator of Women's Action Research & Legal Action for Women
(WARLAW) had filed a petition before the Court stating that more than 70% of the
women prisoners are married and have children. At the time of arrest of the women
prisoners having children, indiscriminate arrest is confined only to women/mother
prisoners but such arrest is automatically extended to these children who are of
tender age and there is no one to look after them without the mother.
On the basis of various affidavits submitted to the Apex Court, there were
6496 undertrial women with 1053 children and 1873 convicted women with 206
children as on 23rd January, 2002.
The Court finally directed that compliance report stating steps taken by the
Union of India, State Governments and Union Territories and Legal Services
Authorities shall be filed in four months where after matter shall be listed for further
directions.
Consequent to the directives of the Apex Court, twelve States and Delhi (UT)
have set up women jails which function exclusively for women prisoners. The
intake capacity of each of these women jail is as follows :—
The State of Andhra Pradesh and Tamil Nadu have two women jails in each
with intake capacity of 320 and 513789 respectively. Other States have one woman
jail in each with total capacity of women prisoners at Delhi (400); Maharashtra
(262); Rajasthan (200); Punjab (150); West Bengal (100); Bihar (83); Uttar Pradesh
(70); Kerala (60); Orissa (55) and Tripura (30).
(3) The undertrials, minors, recidivists and first offenders should be kept
separated from each other. Similarly, political offenders who are not guilty of
violence should also be kept separate and not be housed in the same premises in
which other criminals are lodged. It is inhuman and unreasonable to throw young
boys to sex starved prisoners or to run menial jobs for hardened and affluent
prisoners. The young prisoners should be separated from adults.
(4) There is need for scientific classification of prisoners based on the nature
of the crime committed, age, sex, character and propensities of the offender including
his educational level and likely response to prison treatment.790
(5) The prisoners belonging to peasant class should be afforded an opportunity
to go to their fields during harvesting season on temporary 'ticket on leave' so that
they can look after their agriculture. This would enable them to keep in touch with
their occupation and provide means of living to the members of their family. Thus
the unity of family life can be maintained which would help rehabilitation of the
prisoner after his release from jail.
(6) Though the prisoners are allowed to meet their near relatives at fixed
789 Total capacity of women inmates was highest, i.e. 513 in the State of Tamil Nadu.
790 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
intervals yet there is a further need to allow them certain privacy during such
meetings. The meetings under the supervision of prison guards are really
embarrassing for inmates as well as the visitors and many thoughts on both sides
remain unexpressed for want of privacy. The rights of the prisoners to communicate
and meet friends, relatives and legal advisers should not be restricted beyond a
particular limit.
It must be stated that frequent jail visits by family members go a long way in
acceptance of the prisoner by his family and small friendly group after his release
from jail finally, as the visit continue the personal relationship during the term of
imprisonment which brings about a psychological communication between him and
other members of the family.791
(7) The present system of limiting the scope of festivals and other ceremonial
occasions merely to delicious dishes for inmates needs to be changed. These
auspicious days and festivals should be celebrated through rejoicings and other
meaningful programmes so that the prisoners can atleast momentarily forget that they
are leading a fettered life.792
(8) The existing rules relating to the restrictions and scrutiny of postal mail of
inmates should be liberalised. This shall infuse trust and confidence among inmates
for the prison officials.
(9) The prison legislation should make provision for remedy of compensation
to prisons who are wrongfully detained or suffer injuries due to callous or negligent
acts of the prison personnel. It is gratifying to note that in recent decades the
Supreme Court has shown deep concern for prisoner's right to justice and fair
treatment and requires prison officials to initiate measures so that prisoner's basic
rights are not violated and they are not subjected to harassment793 and inhuman
conditions of living.
(10) The education in prisons should be beyond three R's and there should be
greater emphasis on vocational training of inmates. This will provide them
honourable means to earn their livelihood after release from jail. The facilities of
lessons through correspondence courses should be extended to inmates who are
desirous of taking up advanced studies. Women prisoners should be provided
training in tailoring, doll-making, embroidary etc. The prisoners who are well-
educated, should not be subjected to rigorous imprisonment instead, they should be
engaged in some mental-cum-manual productive work.1
Of late, efforts are being made to impart yoga training to the prison inmates
which not only keeps them physically fit but also makes them mentally healthy. This
is indeed a commendable measure and the scheme should be extended to all the
prisons in India. The States of Gujarat and Maharashtra have taken a lead in this
direction and appointed competent Yoga teachers for training the prison inmates.
(11) In order to make inmates discipline-conscious, 'good time laws' should
further be liberalised. A general policy to cut-short inmate's sentence in case of good
behaviour will offer them an early opportunity to join the community and at the same
time relieve the burden of the State on their maintenance. The introduction of
791Dr. Mir. Mehraj-ud-din : Crime & Criminal Justice System in India. Chapter IV.
792 It was heartening to note that the State Government of Madhya Pradesh had allowed half-day
leave to its prisoner workers on 30th March 2011 so that they could watch the World Cup
Cricket semifinal match being played between India and Pak in Mohali on that day.
793 Sanjay Suri v. Delhi Administration, (1988) Cr LJ 705 (SC). See also Bhuvan Mohan Patnaik v.
State of A.P., AIR 1974 SC 2092.
'honour system' in prisons can also attain a similar goal. Those who react favourably
to prison discipline and display loyalty, should be allowed to associate themselves
with the prison staff and participate in the prison administration. The premature
release of prisoners on national festivals by way of political expediency is generally
not favoured by penologists because it goes against the set principles of sentencing.2
(12) On completion of the term of sentence, the inmates should be placed
under an intensive 'After care'. The process of 'After care' will offer them adequate
opportunities to overcome their inferiority complex and save them from being
ridiculed as 'convicts'. Many non-penal institutions such as Seva-Sadans, Nari-
Niketans and Reformation Homes are at work in different places in India to take up
the arduous task of 'After care' and rehabilitation of criminals. Open Air camps may
also serve a similar purpose. Many States have formed Prisoners Aid Societies for
initiating steps to provide assistance to the discharged prisoners.
(13) There is dire need to bring about a change in the public attitude towards
the prison institutions and their management. This is possible through an intensive
publicity programme using the media or press, platform and propaganda. It will
certainly create a right climate in society to accept the released prisoners with
sympathy and benevolence without any hatred or distrust for them. The media
persons should be allowed to visit the prison institutions frequently so that their
misunderstanding about prison administration may be cleared. Greater participation
of public in prison administration shall certainly create an atmosphere conducive to
reformation of the prisoners. In Prabha Dutta v. Union of India,3 the petitioner, a
newspaper correspondent filed a petition to interview two condemned prisoners
Ranga and Billa for which permission was refused to her by Tihar Jail authorities.
The
X. Mohd. Gaisuddin v. State of Andhra Pradesh, AIR 1977 SC 1925.
2. In Rajendra Prasad v. State of U.P., AIR 1979 SC 916 the accused was undergoing life sentence.
He was released on Gandhi Jayand Day and the first thing he did after release was to avenge the
person who got him prosecuted for murder and in course of scuffle he murdered an intervener.
3. (1982) 1 SCC 1.
prison inmates.
(14) Last but not the least, the existing Prisons Act, 1894 which is more than a
century old, needs to be thoroughly revised and even re-stated in view of the
changed socio-economic and political conditions of India over the years. Many of
the provisions of this Act have now become obsolete and redundant. The National
Human Rights Commission has also endorsed this view.1
The Supreme Court, in its landmark decision in Ramamurthy v. State of
Karnataka,2 identified nine major problems which needed immediate attention for
implementing prison reforms. The Court observed that the present prison system is
confronted with the major problems of (1) overcrowding (2) delay in trial (3) torture
and ill-treatment (4) neglect of health and hygiene (5) insufficient food and
inadequate clothing (6) Prison vices (7) deficiency in communication
(8) streamlining of jail visits and (9) management of open prisons.
This decision of the Supreme Court has its origin in a letter written by one
Ramamurthy a prisoner in Central Jail, Bangalore, and addressed to the Hon'ble
Chief Justice of India. The petitioner's grievance was stated as denial of rightful
wages to the prisoners despite their hard working, non-eatable food and mental and
physical torture in jail. The Supreme Court thereupon passed an order dated 26th
November, 1992 directing the District Judge, Bangalore to visit the Central Jail and
find out the pattern of payment of wages and the general conditions of the prisoners
such as accommodation; sanitation, food, medicine etc. The District Judge submitted
his voluminous report of more than 300 pages on 28th April, 1993 which stated that
general condition of prisoners, the quality and quantity of food supplied to them,
pattern of payment of wages and accommodation etc. was satisfactory but sanitary
conditions, medical facilities and sending prisoners to hospitals outside the jail was
not satisfactory. Also the visits of prisoners to their homes was not proper and
regular as per rules due to shortage of police escorts. The place and procedure
followed for interviews between the prisoners and their kith and kin, friends, visitors
etc. was far from satisfactory. The District Judge in his report also made some
recommendations for consideration and implementation.
Appreciating the admirable work done by the District Judge, the Supreme Court
ordered follow-up action by all the 1155 prisons of India in order to ensure prison
justice.
The Apex Court, in this case, ruled that though overcrowding in jail is not
constitutionally impermissible but the same adversely affects health and hygiene and
therefore, must be taken care of. As regards delay in trial, the earlier directions of the
Supreme Court regarding entrusting the duty of producing undertrial prisoners on
remand to the prison staff, instead of the police, should be followed. The person
authorised should inspect the standard of food and clothing and there should be a
complaint book in all the jails. The Court also emphasised the need for setting up
open jails in District headquarters of the country.
The shockingly poor and miserable conditions prevailing in Indian jails has
been described by a team of journalists in the following words :—
1. Annual Report of NHRC (1994-95) Paras 4.18 & 4.21.
2. (1997) 2 SCC 642.

"...Many jails in this country continue to be a byword for human
degradation on the one hand and dens of corruption, callousness and
cruelty on the other. Numerous and repeated attempts at reforms
have failed even to make a dent in the harsh and dehumanising
situation, leave alone bringing out a thorough reform of the prison
system So much so that an experienced observer of the prison scene
has been constrained to mark that a jail sub-culture has grown in
India which sanctifies barbaric treatment of inmates, including
torture, forced labour, sexual perversion, starvation diet and large
scale aggrandisement and exploitation by petty jail officials
protected by power mentors."794
A noted social activist and journalist Kusum Chadha, has also expressed concern
at the pathetic picture of Tihar Central Jail which is the Central Jail in the capital
city of Delhi. To quote her own words :—
"Like all big jails in poor and overpopulated countries, Tihar too
bears the distressing marks of repression, avarice, lust and age-old
attitude of men to his fellow humans. The convicts and the
undertrials both share the common denominators of wilfully
insufficient and inedible food, hard labour, corrupt warders and
contaminated water. Added to that are over crowded cells and
infected hospital, sugarless tea and flexible rules....795
The concern for reformation of prisoners and improvement of prison conditions
has been once again judicially recognised in the Supreme Court's decision in State of
Maharashtra & others v. Asha Arun Gawali.796 In this case, the norms relating to entry
of persons to jail and maintenance of record of visitors by jail authorities had been
blatantly flouted. The Court expressed surprise that the detenu Arun Gawali was
holding 'darbar' inside jail and throwing lavish parties and hatching conspiracies
with undesirable persons who came to visit him in jail without any record of their
entry in the jail register. The Court said that such activities could not be possible
without active co-operation of jail officials. The Bombay High Court directed to
launch criminal prosecution against the erring jail superintendents and other jail
officials. Sharply reacting to the dismal affairs in the jail and total indifference of the
concerned authorities, the High Court felt that there was need for imposition of
exemplary costs on the erring officials. The High Court took a serious view of the
unwarranted casualness and indifference on the part of I.G. Prisons and Chief
Secretary in the matter and directed them to pay exemplary costs of Rs. 25,000/-
each while the Superintendents of Jail were ordered to pay exemplary costs of Rs.
15,000/- each. The Court further directed that the State of Maharashtra shall deposit
the entire exemplary costs payable by these officers within 10 days and the same
may thereafter be recovered from the respective officers.
794 Quoted from K.D. Gaur's Law & Criminology (2003) p. 316.
795 Ibid.
796 AIR 2004 SC 2223. In this case, the detenu while in jail, master minded-killings of certain
persons in connivance with the active participation of certain persons who had come to meet
him in jail and there was no record of their entry in the jail records.
454 (1) the State Government shall

Criminology andcause enquiry into the matter and inform
Penology
about the findings within 6 months;
(2) The exemplary costs imposed on erring officials shall remain
and issued directions that :—
unaltered;
(3) Judicial officials shall undertake inspection of jails periodically;
(4) The Government may consider the appointment of a Commission
headed by former Judge of the Supreme Court assisted by a former
I. G. Prisons to probe into the nature of lapses and explore possible
remedies.
Consequent to the aforesaid judgment of the Supreme Court, the condition of
Indian prisons has considerably improved and efforts are now being made to
humanise the conditions inside jails by not only providing them basic amenities but
also initiating correctional measures for their rehabilitation and reformation.
Despite modem techniques of treating the offenders through a process of
individualised method in prison, there are certain problems which still remain
unsolved. The foremost difficulty arises in treating recidivists or habitual offenders
who do not respond favourably to any of the reformative methods of treatment. They
accept prisonisation as a normal way of life and criminality as a regular profession.
When recidivists are placed in a correctional institution, they treat it as a place of
leisure and comfort. Thus, the treatment methods hardly serve any useful purpose in
case of recidivists. Therefore, such criminals have got to be confined to four walls of
the prison and made to live a strictly regulated life. It need not be stated that
hardened criminals and recidivists are an unnecessary burden on the State but they
have to be tolerated at any rate for the sake of respect for human life and social
security. Commenting on the policy to be followed in case of recidivists, Sir Lionel
Fox observed, "certain people are worthless from social standpoint and are in fact
physically, mentally and morally a burden on society and there exists no rational
reason to provide care for them".1
Yet another problem about prisons in India is the ever increasing population of
prisoners. This increase in the number of inmates adds to the cost of prison service
while the results still remain far from satisfactory from the point of view of the
protection of society as also the rehabilitation of offenders. May be, this is just a
pessimistic assumption raised in an anxiety to combat crime and visualise a crimeless
society. But it cannot be forgotten that crimes are essentially conditioned by social,
economic and political situations of a particular place. The advancement of
knowledge, technology and civilisation has brought about radical changes in social
structure, economy, political strategy and thinking. Consequently, many new crimes
which were hitherto unknown have sprung up, for example, the offences of fraud,
embezzlement, forgery, theft of automobiles, gang-style crime, terrorist activities,
bomb blasts, tax evasion, infringement of copyright, trade-marks and patents and
many other corrupt practices are relatively of a recent origin. That apart, many old
crimes are now repeated with new techniques and methods and with minimal chances
of detection. The problem of increase in population, economic depression and
criminalisation of politics have also contributed to stimulate crime rate. Under the
circumstances, it is erroneous to think that rise in criminality is exclusively due to the
failure of our penal policies. Far from being so, it is in fact an indication that we have
yet to enlarge the scope of our penal programme to suit the changing needs of
modem times. The general policy which seems expedient in the present context is the
institutionalised treatment with provision of minimum security for adults and greater
security for juveniles and young delinquents. The sole contention behind the entire
1. Sir Lionel Fox : Studies in Penology (IPPC Publication) 1964, p.112.

scheme should be to preserve respect for human life at any cost. The ultimate object
of prison institution should be to reform the offender rather than to torture and
antagonise him.797 As pointed out by Dr. Sethna, "prisons should be 'moral hospitals' or
places of re-education but they should not be so comfortable as to be attractive".798
Inmates should be put to intensive manual labour which must be productive for the
State and useful to the prisoner after his release. An ideal prison must provide for
adequate work, vocational training, basic educational, medical and recreational
facilities for inmates. The prison management should be made functional, effective
and goal oriented so as to prove itself as an efficient agency of the criminal justice
system.
Custodial Torture in Prisons
The victims of prison injustice, particularly, those who are poor and helpless
and cannot afford legal representation have been protected against torture and
harassment. A victim of custodial torture can move the court directly through a writ
petition for protection of his fundamental rights, specially the right to life and liberty
guaranteed by Art. 21 of the Constitution. The Supreme Court's judicial activism for
protecting the rights of prison inmates and detenues is discernible from a series of
cases decided by the Court. Thus in Prabhakar Pandurang v. State of Maharashtra,799 the
Apex Court ruled that detention in prison cannot deprive the detenu of his
fundamental rights. In the same breathe, the Supreme Court in D. B. M. Patnaik v.
State of A. P.,800 held that mere detention is no ground for suspension of detenu's
fundamental rights. In its historic judgment in Sunil Batra v. Delhi Administration,801 the
Apex Court held that prisoners are entitled to all fundamental rights which are
consistent with their incarceration.
Emphasising the need for humane treatment of prisoners and protection of their
basic human rights, the Supreme Court in Sunil Batra II,802 observed as follows :—
"Fundamental rights do not flee the persons as he enters the prison
although they may suffer shrinkage necessitated by incarceration."
Outlining the substantive and procedural rights to which the prisoners are
entitled, the Apex Court said.
"Infliction may take many protean forms apart from physical
797 Curtis Bok : Problem in Criminal Law (1955) p. 78.

798 Sethna M. J. : Society and The Criminal (1964), p. 325.
799 AIR 1966 SC 424.
800 AIR 1971 SC 2092.
801 AIR 1978 SC 1675.
802 (1983) 3 SCC 488.
assaults. Pushing the prisoner into a solitary cell, denial of

necessary amenity, and more dreadful sometimes, transfer to a
distant prison where visits or society of friends or relations may be
snapped, allotment of degrading labour, assigning him to a
desperate or tough gang and the like, may be punitive in effect.
Every such affiliation or abridgment is an infraction of liberty or
life in its wider sense and cannot be sustained."
The Court concluded that torture is a tradition in many penal institutions. That
is why as a matter of policy, Articles 8 and 9 of the Declaration of the Protection of
all persons from torture and other cruel, inhuman and degrading treatment of
punishment adopted by UN General Assembly should be implemented by all nations.
In Hussainara Khatoon/ the Supreme Court observed that a procedure which does
not make legal services available to a poor undertrial person cannot be regarded as
just, fair and reasonable and therefore, violative of right to legal aid of the poor
accused as contemplated by Art. 21 of the Constitution. The Court in this case
ordered release of those undertrials who were languishing in jails for an inordinately
long period.
In Sheela Barse v. State of Maharashtra} the Supreme Court on a complaint of
custodial violence to women prisoners in jails, directed that those helpless victims of
prison injustice should be provided legal assistance at the State cost and protected
against torture and maltreatment.
In Sanjay Suri,803 the Apex Court held that the prison authorities should change
their attitude towards prison inmates and protect their human rights for the sake of
humanity.
Interestingly, some penologists have advocated the need of spiritual training for
those who are condemned and incarcerated in prison cells. They strongly believe that
the practice of yoga and meditation will enable the prisoners to control the evils of
Kama, Krodha, Madh, Moha and Lobha, which dwell in human beings and help them in
gaining control over these evil forces so as to turn them a good man and a good
citizen. This is indeed a new approach to penological problem of crime and criminals
in the Indian setting. As rightly observed by Mr. Justice Ram Pal Singh of the High
Court of Madhya Pradesh,804 "human body is a temple where the deity of Atma and
Parmatma reside. For keeping the temple of flesh and blood, the abode of good and
bad, the sages and saints have prescribed Sadhna by regular practice of yoga which
shall keep the human body not only healthy and strong, but also neat, clean and pure.
Healthy people would avoid crime and try to do good to the society by establishing
peace and tranquillity".805 The practice of yoga in prisons can considerably help in
prevention and control of crimes and reformation of hardened criminals.
Undoubtedly, the idea is laudable and must be adopted
into practice.806
As regards the importance of prayers in prison institutions, suffice it to say that
it provides sufficient spiritual strength to the inmates to change their human and
803Sanjay Suri v. Delhi Administration, (1988) Cr LJ 705 (SC).

804Afterwards the Judge of the Delhi High Court.
805 'Yoga And Indian Penology' by Hon'ble Mr. Justice Ram Pal Singh Judge, High Court of
Madhya Pradesh, published in the Central India Law Quarterly Journal Vol. 1 (1987) pp. 92-93.
806 Inspired by this idea, many State Governments notably, Gujarat, Maharashtra and Madhya
Pradesh have made training in Yoga compulsory for prison inmates along with religious
discourses.
social outlook. The experiment carried out in the Tihar Jail sometimes in 1993-94
when Vipassana meditation was introduced in a big way, brought about a big change
in the living and thinking of the prisoners, as narrated by Shri Tarsem Kumar, the
then Superintendent of the Jail in his book entitled Freedom Behind Bars.807
More recently, the Gujarat State Prison Administration has launched a 'Prison
Reform' programme seeking to bring about reformation of jail inmates through daily
Bhajans and Yoga practice. The Sabarmati and Vadodara Central Jails have started a
two-months long creative programme of Yoga and Bhajans which is conducted by
the Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya to teach moral and
ethical values to the jail inmates and thus encourage them to live a better life. The
programme has also been introduced in Nadiad Central Jail in March, 2001. The
programme emphasises on ways to bring about a change in the attitude of the
prisoners by developing their inner strengths and bringing about a spiritual
awakening in them. Yoga, Bhakti Sangeet and 'loknritya' are obviously an essential
part of the rehabitative programme.
Explaining the philosophy underlying this prison reform programme, Shri B.K.
Niranjana of the Bramha Kumaris Seva Kendra, Baroda observed that, "a person
often commits a crime because of anger, hatred or a feeling of rivalry or revenge." In
order to help such offenders, it is essential to control their emotions. Besides,
pessimistic feelings like tension, failure or anxiety also add to their woes. A majority
of prisoners repent for their crime and they sincerely want to mend their ways but
often lack necessary inspiration or the spirit. It is therefore, essential to enlighten
such people by inculcating in them values of morality and ethics so that they get the
inner strength to distinguish between good and bad. An atmosphere of devotion,
meditation and spiritualism will certainly help the prisoners to become better human
beings. This improvised Indian approach to prison reforms will surely bring about a
positive change in the attitude of prison inmates and help in their rehabilitation.
It hardly needs to be reiterated that remedial rights of prisoners require deeper
understanding. The real problem is not with the principles but with their
implementation. The Supreme Court and the High Courts have been gradually
exercising jurisdiction in assuring prison justice including improvement in the quality
of food and amenities, payment of appropriate wages, necessary arrangement for
health-care of prisoners etc. The States often take the plea of financial constraints in
assuring these constitutional remedies to prison inmates but this cannot be accepted
as a valid ground for excuse, else the very purpose of constitutional and human rights
would be eroded.
Like prisons, the conditions of police lock-ups is still worse. Justice Mulla
Committee on Jail Reforms, in its Report of March 1983 pointed out :
807 Quoted in Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 (655).

"Most of the lock-ups have insufficient accommodation and are

without even such basic facilities as lavatories, light, water and
ventilation. Sanitary conditions in these lock-ups are also utterly
unsatisfactory. There seems to be no rules or scales prescribed for
the diet or bedding for those detained in lock-ups. There are no
visiting committees which would inspect or report about the
conditions prevailing in these lock-ups. The essential requirements
of law with regard to the time-limit for keeping in custody persons
arrested without warrant are often
flouted .....conditions of police lock-ups need to be urgently
improved."
With a view to improving the plight of women prisoners in jail, the Supreme
Court's directives stated in Sheela Barse v. State of Maharashtra,1 deserve particular
mention. They are briefly stated as follows :—
1. Female prisoners and suspects should be guarded by female guards or
women constables. Obviously, they should be separated from male
wards.
2. Interrogation of women should be carried out in presence of women
officials.
3. Intimation regarding arrest of a woman offender must be immediately
given to her relatives.
4. Information of such arrest must be immediately sent to the nearest Legal
Aid Committee.
Finally, it need not be stressed that efforts for rehabilitation of an offender begin
from the time he enters the prison. A comprehensive prison programme is therefore,
essential to cater to the needs of different categories of inmates. The prison-life
should be so regulated that the prisoner is able to overcome all his psychological
strains and adapts himself as a law abiding citizen after his release from jail. It is
always preferable to place the released prisoner under the supervision and guidance of
a Probation Officer for his after-care and rehabilitation in the free community. The
welfare officers appointed in prisons can also play an important role in providing
adequate counselling, legal help and financial assistance to the prisoners at the time of
their release so that they are properly rehabilitated in society.
It must be remembered that the role of prisons has radically changed over the
years and they are no longer regarded as mere custodial institutions instead, they have
now acquired a new dimension as treatment and training centres for those who fall
foul with law. The emphasis has thus shifted from custody to training and re-
education of offenders and the policy of segregation now stands substituted by
community-partidpation of prisoners. It has been realised that protection of society
can be better ensured if the offenders are corrected and reformed within the society
itself. To talk about treatment and training in prisons is not rhetoric; it can prove to be
real, given the zeal and determination. There is need to improve the prison system by
introducing new techniques of management and by apprising the prison staff with
their constitutional obligations towards prisoners. This would surely end the gloom
cast on our
1. AIR 1983 SC 378 (382).

"Most of the lock-ups have insufficient accommodation and are

without even such basic facilities as lavatories, light, water and
ventilation. Sanitary conditions in these lock-ups are also utterly
unsatisfactory. There seems to be no rules or scales prescribed for
the diet or bedding for those detained in lock-ups. There are no
visiting committees which would inspect or report about the
conditions prevailing in these lock-ups. The essential requirements
of law with regard to the time-limit for keeping in custody persons
arrested without warrant are often
flouted .... conditions of police lock-ups need to be urgently
improved."
With a view to improving the plight of women prisoners in jail, the Supreme
Court's directives stated in Sheela Barse v. State of Maharashtra,1 deserve particular
mention. They are briefly stated as follows :—
1. Female prisoners and suspects should be guarded by female guards or
women constables. Obviously, they should be separated from male
wards.
2. Interrogation of women should be carried out in presence of women
officials.
3. Intimation regarding arrest of a woman offender must be immediately
given to her relatives.
4. Information of such arrest must be immediately sent to the nearest Legal
Aid Committee.
Finally, it need not be stressed that efforts for rehabilitation of an offender
begin from the time he enters the prison. A comprehensive prison programme is
therefore, essential to cater to the needs of different categories of inmates. The
prison-life should be so regulated that the prisoner is able to overcome all his
psychological strains and adapts himself as a law abiding citizen after his release
from jail. It is always preferable to place the released prisoner under the supervision
and guidance of a Probation Officer for his after-care and rehabilitation in the free
community. The welfare officers appointed in prisons can also play an important role
in providing adequate counselling, legal help and financial assistance to the prisoners
at the time of their release so that they are properly rehabilitated in society.
It must be remembered that the role of prisons has radically changed over the
years and they are no longer regarded as mere custodial institutions instead, they
have now acquired a new dimension as treatment and training centres for those who
fall foul with law. The emphasis has thus shifted from custody to training and re-
education of offenders and the policy of segregation now stands substituted by
community-participation of prisoners. It has been realised that protection of society
can be better ensured if the offenders are corrected and reformed within the society
itself. To talk about treatment and training in prisons is not rhetoric; it can prove to be
real, given the zeal and determination. There is need to improve the prison system by
introducing new techniques of management and by apprising the prison staff with
their constitutional obligations towards prisoners. This would surely end the gloom
cast on our
prison system and create new awakening among the prison community. In order to
ameliorate the condition of prisoners, the Supreme Court has laid certain mandates
which would certainly go a long way in improving the working conditions of Indian
1. AIR 1983 SC 378 (382).
Prisons.
Judicial Mandates Regarding Prisoners & Detenues
The Supreme Court in its endeavour to ensure distributive justice in prisons has
upheld the fundamental rights of detenues and prisoners in prison settings. The
judicial mandates dealing with some of these aspects may be stated as follows :—
(1) The prison administrators have no power to add additional punishment to
the punishment imposed by the Court even though it could have been solely imposed
by that court itself, but has in fact, not been so imposed.
(2) A prisoner sentenced to capital punishment might be kept in separate cell
only "after the sentence becomes executable". But even in the separate cell, unless
there are special circumstances, he must be kept within the sight and sound of other
prisoners and be able to take food in their company.808
(3) Prisoners 'under sentence of death' shall not be denied amenities of games,
newspapers, moving around and meeting prisoners and visitors subject to reasonable
regulation of prison management.809
(4) Solitary confinement cannot be inflicted except in extreme cases of
necessity specifically made out by the jail authorities. A prisoner under the sentence
of death can be inflicted and imposed solitary confinement only in view of the safety
of the prisoner and the security of the prison.810
(5) If a prisoner desires loneliness for reflection and remorse, for prayers and
making peace with his maker, or opportunities for meeting family or friends, such
facilities should be liberally granted.811
(6) Undertrials should be accorded more relaxed conditions than convicts.
They are not under sentence of imprisonment but only under custody.
(7) An undertrial prisoner, when transported from the prison to the Court
should not be handcuffed. However, in extreme cases, where the hand-cuffs have to
be put on the prisoner, the escorting authority must record reasons for doing so.812
(8) The term hard labour has to receive a humane touch. The punishment of
rigorous imprisonment obliges the inmates to do hard labour but not harsh labour.
The prisoner cannot demand soft jobs but may reasonably be assigned congenial
jobs.813
(9) The right to the society of fellowmen, parents and other family members
cannot be denied in the light of Article 19. However, it is subject to search, discipline
and other security reasons.814
(10) A detenue is entitled to have interview with his legal adviser after
taking appointment from the superintendent of the jail. In case of COFEPOSA
detenues, a custom or jail official may watch the interview but he should not be
within the hearing distance of the detenue and the legal adviser.815
(11) An accused has the right to sit down in the Court during the trial
especially in long and arduous cases, unless it is necessary for the accused to stand
up for identification. This facility is not against the established practice that
808 Sunil Batra-I, 1978 Cri. LJ 1741 at 1795 (SC) (per Desai, J.).
809 Ibid. at 1799.
810 Ibid at 1798; see also Kishor Singh, 1981 Cri. LJ 17 (SC).
811 Ibid at 1789.
812 Prem Shanker v. Delhi Administration, AIR 1980 SC 1535.
813 Sunil Batra-II, 1980 Cri. LJ 1099 at 1114.
814 Ibid. at 1115.
815 Francis Coralie Mullin, 1981 Cri. LJ 306 at 313-14 (SC).
everyone in the Court should stand when the presiding officer enters.816
(12) Undertrials are not to be kept in leg-irons,817 nor can be asked to work
outside the jail walls. This would be in flagrant violations of prison regulations and
contrary to I.L.O. conventions against forced labour.
(13) In order to reduce mental tensions among the prisoners, the prison
authorities should provide for vital links between the prisoner and his family by
periodically granting parole. However, the granting of parole for reasonable spells is
subject to sufficient safeguards ensuring their proper behaviour outside and prompt
return inside.818
(14) No prisoner can be personally subjected to deprivations not necessitated
by the fact of incarceration and the sentence of the Court. All other freedoms belong
to him, such as to read and write, to exercise and recreation, to meditation and chant,
to comforts like protection from extreme cold and heat, to freedom from indignities,
like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement
within the prison campus subject to requirements of discipline and security, to the
minimal joys of self-expression, to acquire skill and techniques and all other
fundamental rights tailored to the limitations of imprisonment.819
(15) The press and media persons should be allowed to interview prisoners
sentenced to death if they are willing to do so, unless weighty reasons to the contrary
exist.820
(16) Prior to the execution of any death sentence, the Jail Superintendent
should personally ascertain whether the sentence of death imposed upon any of the
co-accused who was due to be hanged, has been commuted. If so, the Superintendent
should apprise the superior authorities of the matter who in turn, should take prompt
steps for bringing the matter to the notice of the Court concerned.821
(17) The commutation of the sentence of death into life imprisonment cannot
be demanded by the condemned prison as a matter of right.
(18) A prisoner whether undertrial or convict has a right to legal assistance
and that must be made available to him in jail.822
Judicial Directives for Prison Administration
Besides protecting the fundamental rights of prisoners and detenues, the
Supreme Court has expressed its consciousness to eradicate the unhealthy
atmosphere in prison settings which are full of mal-administration and torture. With
a view to restoring distributive justice, the Court stipulated certain mandates for the
general administration of the prisons. They are as follows :
(1) Lawyers nominated by the District Magistrate, Sessions Judge, High
Court and the Supreme Court should be given all facilities for
interviews, visits and confidential communication with prisoners subject
to discipline and security considerations. This has roots in the vistatorial
and supervisory judicial role. The lawyers so designated shall be bound
to make periodical visits and record and report to the concerned Court,
816 See The Indian Express, Chandigarh, December 9, 1981.

817 Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939.
818 Hiralal Mallick, 1977 Cri. LJ 1921 at 1927 (SC).
819 Sunil Batra-II, 1980 Cri. LJ 1099 at 1113 (SC).
820 Smt. Prabha Dutt v. Union of India, AIR 1982 SC 6.
821 Harbans Singh v. State of U.P., AIR 1982 SC 849 (851).
822 Sheela Barse v. State of Maharashtra, AIR 1983 SC 378 (380).
the results which have relevance to the legal grievance.1

(2) District Magistrates and Sessions Judges should personally or through
surrogates, visit prisons within their jurisdiction and afford effective
opportunities to the prisoners for ventilating their grievances; and should
make expeditious enquiries therein and take suitable remedial action. In
appropriate cases, report should be made to the High Court to initiate, if
found necessary, habeas corpus action.2
(3) Grievance Deposit Boxes should be maintained under the orders of the
District Magistrate and the Sessions Judge and such boxes should be
opened as frequently as is deemed fit, and suitable action should be
taken on complaints. Access to such boxes should be afforded to all the
prisoners.
(4) Necessary steps should be taken to prepare in Hindi and other regional
languages a prisoner's Handbook and circulate copies of it to bring legal
awareness among the prison inmates. Periodical jail-bulletins should
also be introduced stating how improvements and re-habilitative
programmes are being carried out into prison. This will inculcate a
feeling of fellowmanship among the prisoners thus, easing their
tensions. A prisoner's wall paper, ventilating their grievances should
also be introduced.3
(5) The prisoner's rights should be protected by the Court by its writ
jurisdiction plus contempt power. To make this jurisdiction viable, free
legal services to the prisoners should be promoted by professional
organisations recognised by the courts, such as, Free Legal Aid
(Supreme Court) Society. The District Bar should keep a cell for
prisoner's relief. The Government of India and the State Governments
were also recommended by the Supreme Court to introduce
comprehensive legal service programme.
(6) Large notice boards displaying the rights and responsibilities of
prisoners should be hung up in prominent places within the prison in the
local language.
(7) The transfer of a prisoner to other prison with penal consequences
should not be ordered without judicial appraisal of the Sessions
t Sunil Batra-ll, AIR 1980 SC 1579 at 1602.
2. Ibid.
3. Section 61 of the Prisons Act.
Judge and where such transfer becomes necessary as an emergency measure the
information thereof must be given to the concerned court within a period of two
days. The prisoners should not be subjected to solitary or punitive cells nor
should they be deprived of their privileges and amenities to which they are
entitled under the prison rules.
(8) The status based classification of prisoners in jail should be scrapped, instead, a
scientific classification based on the nature of the crime committed, behaviour,
character, propensities, age, sex, education and response to jail treatment should
be introduced.1
(9) The undertrials, minors, recidivists and first offenders should be kept separate in
prisons. The political offenders who are not guilty of violence should also be
kept separate and not be housed in the same premises in which other criminals
are lodged. It is inhuman and unreasonable to throw young boys to sex starved
prisoners or to run menial jobs for the affluent or tough prisoners. The young
inmates should be separated and freed from the adults.2
(10) The State should take steps to comply with the Standard Minimum Rules for
the treatment of prisoners as recommended by the United Nations. Particularly,
the rules relating to work and wages, treatment with dignity, community contact
and correctional strategies should be rigidly followed.3
(11) The Prison Act and the Prison Manual needs to be overhauled. A correctional-
cum-orientation course is necessary for the prison staff for inculcating among
them the constitutional values, therapeutic approaches and tension-free
management.
(12) The petitions of the prison inmates addressed to the prison officials must be
directly sent to the concerning court instead of being routed through high
authorities.
(13) If the prison administration initiates any legal step which is likely to affect the
personal liberty of a prisoner, it should follow the principles of natural justice
which are a part of fair procedure established by law.4 If special restriction of
punitive or harsh character such as solitary confinement or putting fetters etc.
have to be imposed for security reasons, it becomes necessary for the prison
officials to comply with the rules of natural justice. Moreover, there should be
an appeal from prison authority to judicial organ when such treatment is meted
out.5
(14) All the State Governments in the country were directed by the Supreme Court
to convert these rulings on prison administration into rules and instructions
forthwith, so that the violation of prisoner's freedom can be avoided.
Sunil Batra-I, 1978 Cri. LJ at 1778 (1791).
Vijay Kumar v. Public Prosecutor, AIR 1978 SC 1485.
Sunil Batra-ll.
Ibid.
Kishor Singh, 1981 Cri. LJ 17 (22).
(15) The Apex Court in Nathu alias Paras Ram v. State of Rajasthan,823 reiterated
that where a special leave petition or appeal is filed by a prisoner from
jail along with certified copy of judgment appealed from it requires
immediate attention of this Court so that it may, having regard to facts
and circumstances, suspend his sentence or allow his prayer for bail. The
Registry of the Court need not in every case call for records of the lower
Court in a mechanical manner. Rule 8 of the Supreme Court Rules, 1966,
no doubt, permits the Registry to call for documents but the same should
be done only when found to be necessary and not otherwise because the
Supreme Court Rules must be read in consonance with the fundamental
rights of prisoners.
Rehabilitation of Prisoners
The ultimate objective of the prison and correctional administration is
rehabilitation of offenders in the main stream of social life. Aftercare can be the
harbinger of any rehabilitative process and a vital link in correctional program to
reduce the offender's social isolation and dependence, to help him to get over his
social handicaps and to remove the stigma that darkens his present and future life.
Although prisons are considered as the most widely used institutions of
correctional administration but their role has always been a subject of severe
criticism and scrutiny from the point of view of rehabilitation of prisoners. The major
problems which come in the way of prison administration in performing their
rehabilitative functions are as follows824 :
1. lack of infra-structural facilities and there being no scientific
classification of prisoners.
2. There is hardly any justification for aggravating the suffering already
inherent in the process of incarceration and prison authorities should not
ignore this vital aspect in dealing with the prisoners.
3. There is no scope for custodial torture in prisons.
4. A large segment of prison population consists of the poor, the illiterate
and unskilled, therefore adequate vocational training programmes with
necessary technical inputs should be made available in prison
institutions.
5. Part-sentencing dispositions such as furlough, parole, remission, pardon
etc. may be tried as non-custodial measures on a selective basis.
6. Emphasis should be on educational facilities and vocational training for
prison inmates. Study material may be provided at the government cost
from institutions like IGNOU.
7. Certain semi-institutional arrangements such as half-way houses,
educational-houses, day-time working and training centres etc. for
reintegration of inmates into society may help in their process of
rehabilitation
823 AIR 2007 SC 1.

824 Chaturvedi K.C. : Penology & Correctional Administration (2006) p. 18.
8. The directives issued by the Supreme Court1 for self-improvement and

correctional therapy for prison inmates have laid special emphasis on
three points namely, (1) a person in custody does not become a 'non-
person' (2) that a prisoner is entitled to human rights within limitations
of imprisonment, and (3) there is no justification for aggravating the
sufferings of prisoners during the period of imprisonment.
In the context of rehabilitation and aftercare of prisoners, it must be stated that
the process should not be misconceived as a kind of benevolent campaign intended to
rescue a fallen individual nor a patronage extended by prison authorities. It is rather
based on the understanding of the needs of those who are going to face the unkind
and unsophisticable world outside.
After-care of released prisoners
The necessity and importance of aftercare for released prisoners was
appreciated for the first time by the Indian Jail Conference of 1877. The Conference
realised the urgency for extending help to ex-convicts but no further action was
initiated in this regard. Later, Discharged Prisoner's Aid Society was organised as a
non-official agency in the then United Province (UP) in 1894 and similar societies
were formed in Bengal in 1907 and Bombay in 1914, but they could not function
effectively for want of Government support and public sympathy. Similar societies
were formed later in other states (provinces) for helping the released prisoners in
their socio-economic rehabilitation.
After the Indian independence, the Government of India recognised the need
for a comprehensive after-care programme for the released prisoners and appointed a
committee under the chairmanship of Shri Gore. Pursuant to this Committee's
Report, a Central Social Welfare Board and a few after-care Homes were established
in some states during 1955-1960. Some of the states also set up juvenile correctional
institutions for rehabilitation of juvenile offenders.
The problems of released prisoners being manifold, they need to be attended
with a humanistic approach. The released convicts are generally shunned not only by
the society but even by their own family members, their families get shattered and
disintegrated during the period they are undergoing imprisonment and most of them
have lost their jobs by the time they are released from the prison. All these factors
adversely affect the life of exconvicts, therefore the government, voluntary social
organisations, NGO's and the society as a whole, must come forward to help the
released prisoners in solving their woes. They, being mostly poor, illiterate and
helpless, need care and sympathy of the people whose cooperation is most needed for
the rehabilitation of these ex-prisoners.
The Repatriation of Prisoners Act, 2003
With the rising incidence of international crimes and Indian citizens
committing crime outside the country and aliens indulging in crimes in India, the
repatriation of convicted persons posed a serious problem before the criminal law
administrators in the absence of any specific law on this subject. The Government of
India therefore, brought out the Repatriation of Prisoners
Act, 2003 with a view to providing for transfer of certain prisoners from India to
country or place outside India and reception in India, of certain prisoners from
country or place outside India. The Act came into force with effect from 1st January,
1. Sunil Batra-D; AIR 1980 SC 1579.

2004.
The Act provides that Government of any country or place outside India in
respect of which arrangement has been made by the Indian Government for transfer
of persons undergoing a sentence of imprisonment under an order passed by a
criminal court, from India to such country or place or vice-versa, shall by notification
by the Central Government in the Official Gazette transfer his custody from India to
that country or vice-versa. The prisoner's record shall be transferred to such country
under Section 10 of the Act. Every order of repatriation of prisoner from outside
country to India or vice-versa, shall be laid before each House of Parliament as soon
as possible as required by Section 16(2) of the Act.
Comcluding Remarks
Before concluding, it must be conceded that the great majority of individuals
sentenced to imprisonment want to return to society as law-abiding citizens and only
few are anti-social and have no intention of changing their lawless ways after their
discharge. Therefore, in order to make the prison life less abnormal and provide
better opportunities for rehabilitation of those prisoners who behave well and who
are not believed to be dangerous to their fellow-men, they should be granted regular
furloughs in order to visit their families frequently. It must be realised that cure for
crime lies not in incarceration of prisoners but only in speedy criminal justice by
ensuring certainty of punishment rather than its severity. In this context, it would be
worthwhile to quote the observations made by Sir Robert Mark who said, "permanent
and determined criminals do not regard the present criminal justice system as
sufficiently deterrent nor are they scared of imprisonment because they are aware of
the limitations of the police, courts, prisons etc. and find crime to be highly
profitable and rewarding".1 In India, professional criminals seek the protection of
resourceful patrons and taking advantage of the slow moving criminal justice system,
they more often than not, manage to escape punishment and prisonisation.
1. Sir Robert Mark : Policy in a Perplexed Society, p. 67.

Chapter XX
Open Prisons
T he institution of prison serves a dual purpose of eliminating criminals from

society and reformation and rehabilitation the offenders under institutional
treatment by blanketing out conditions which in the first place turned them into law-
violaters. It has now been generally accepted that after-care service must form an
integral part of penal programme. As a part of correctional service it presupposes
active help and guidance to the discharged prisoners through counselling and
surveillance. The process has therefore, been called the "released person's
convalescence".825
The system of parole as a corrective measure and rehabilitative process has
been expanded in the form of open jails and open air camps during preceeding five
decades. Open-air institutions are essentially a twentieth century device for
rehabilitating offenders to normal life in the society through an intensive after-care
programme.
Modem Anglo-American penologists have realised that persons convicted for
an offence against the laws of their country respond more favourably to humane
treatment and constructive rehabilitative process than to the purposeless
punishment.826 Particularly in United States, significant changes have been introduced
in the correctional system for treatment of offenders. Besides the system of
probation, parole, indeterminate sentence, juvenile courts for young delinquents,
open-institutions have been set up for rehabilitation of criminals throughout the
country. These open-prisons provide work to inmates in forests, agricultural farms
and construction sites, instead of allowing them to be idle inside the prison cells.
Open-air prisons play an important role in the scheme of reformation of
prisoners which has to be recognised as one of the essential objectives of prison
management. They represent one of the most successful applications of the principle
of individualisation of penalties with a view to social readjustment because
introduction of wage system, release on parole, educational, moral and vocational
training of prisoners are some of the characteristic features of the open-prison
system. Besides, open institutions are far less costly than the closed prison
establishments and the scheme has a further advantage of Government being able to
employ in work, for the benefit of the public at large, the jail population which would
have otherwise remained unproductive. The monetary returns are positive and once
put into operation, the open jails acquire financial self-sufficiency.827
825 All India Jail Manual Committee Report (1957-59), pp. 70-71, para 121.
826 Sanford Bates : "Anglo-American Progress in Penitentiary Affairs" published in
Studies in Penology (IPPF), 1964.
827 B. Chandra : Open Air Prisons (1984) p. 150 dted in Ramamurthy v. State of
Karnataka, (1997) 2 SCC 642 (655).
Open Prisons 467

Criminologists have expressed different views about the definition of open
prison. Someofwriters
Definition Open have
Prisonpreferred to call these institutions as open air camps, open
jail or parole-camps. The United Nations Congress on Prevention of Crime and
Treatment of Offenders held in Geneva in 1955, however, made an attempt to define
an open prison as follows :
"An open institution is characterised by the absence of material and
physical precautions against escape such as walls, locks, bars and
armed-guards etc., and by a system based on self-discipline and
innate sense of responsibility towards the group in which he lives".
In other words, open prisons are 'minimum security' devices for inmates to
rehabilitate them in society after final release. In India, they are popularly called as
open jails.
Sir Lionel Fox, the Chairman of the Prison Commission for England and Wales
described the usefulness of open prison and observed, "of all the methods by which a
prison regime may hope to inculcate self-respect and self-responsibility and in other
way prepare the prisoners for a rational life in society, the open prison institution
appears to be itself the most effective."
Dr. C.P. Tandon, the then Inspector-General of Prisons, Uttar Pradesh defined
open prison in 1959 stating that, "it is characterised by (a) the degree of freedom
from physical precautions such as walls, locks, bars and special guards; and (b) the
extent to which the regime is based on self-discipline and the inmate's responsibility
towards the group. The objective of an open peno-correctional institution is to aim at
the development of self-respect and sense of responsibility as well as useful
preparation for freedom....discipline is easier to maintain and punishment seldom
required, tensions of a normal prison life are relaxed and conditions of imprisonment
can approximately be more close to the pattern of normal life.”1
Origin of Open Prisons
The emergence of 'open prisons' marks the beginning of a new phase in the
history of prisons. In the closing years of nineteenth century, a semi-open prison
institution called the Witzwill establishment was set up in Switzerland. Open-prisons
in modem sense were, however, established, in U.K. in 1930's and in United States
around 1940's. Sir Alexender Palerson, the member secretary of the Prison Commission
of U.K. from 1922 to 1927 made significant contribution to the development of open
prisons in England. The philosophy underlying those 'minimum security' institutions
was based on the following basic assumptions :—
1. A person is sent to prison as a punishment and not for punishment.
2. A person cannot be trained for freedom unless conditions of his captivity
and restraints are considerably relaxed.
3. The gap between the institutional life and free life outside the prison
should be minimised so as to ensure the return of inmate as a law abiding
member of society.
1. Quoted from K.D. Gaur;s Criminal Law & Criminology (2003) p. 830.
4. The dictum 'trust begets trust' holds good in case of prisoners as well.
Therefore, if the prisoners are allowed certain degree of freedom and
liberty, they would respond favourably and would not betray the
confidence reposed in them.
The success of open prisons subsequently, led to establishment of 'hostel
system' for prisoners in U.K. and inspired by the English experience, other countries
including India adopted the scheme for reformation of offenders.
Open Prisons in U.S.A.
During the nineteenth century open air prisons were in existence in America in
the name of prison-farms. The convicts who were nearing the end of their sentence
were generally transferred from conventional prisons to these open farms in forests
as labourers. But these camps diferred from modem open-institutions atleast in one
aspect, that is, they were not the honour camps but were literally the "slave-camps"
for prisoners who were made to work under heavy guard and surveillance.
Experience with these prison labourers was quite encouraging. It was therefore,
realised that majority of these prisoners could be trusted if engaged in corrective
work outside the guarded enclosures under unarmed supervisors. Although the
system involved a risk of prisoners escaping from work-site, but the number of
actual escapes was so negligible that this mode of helping and guiding prisoners was
adopted as an integral part of correctional programme in the United States. The
greatest service done to prison community under the system of open-air institution
was to develop self-reliance and self-confidence among the prison inmates by
resorting to minimum security measures.
There was yet another reason for the evolution of the system of open prison
camps. The problem of overcrowding in prisons had been engaging the attention of
prison authorities for quite sometime. The problem became more tense in times of
war and political upheavals when a large number of offenders were required to be
dumped inside the prison cells. With a view to reducing overcrowding, some of the
prisoners were picked up to be quartered into open-air camps. It was noticed that the
system offered better opportunities to convicts for their rehabilitation and self-
reformation. Another advantage of the system was that it achieved economy in
expenditure on prisons and thus contributed, substantially to reduce the burden on
State exchequer. Initially, only selected prisoners were booked to open-air
institutions after a careful scrutiny so that they could be better-risks.
The Californian Prison Farms
A number of open prison camps were operating in Massachusetts and
California in U.S.A. as early as 1915. The real beginning of these institutions can be
traced back to the year 1935 when a Californian legislation suggested radical
changes in prison reforms. It was decided that prisoners should be treated as human
beings and that the hopeful cases should be separated from the hardened ones.1 It was
further suggested that prisoners capable of moral rehabilitation and restoration to
good citizenship should be segregated from the hardened offenders. With a view to
implementing this policy, a farm-type
institution with suitable lodging and provision for work was proposed near the town
of Chino in South California. The project was under the direction of State Board of
Prison Directors. But the Prison Board showed little zeal for minimum security
arrangement in prison-farms and preferred the old conventional method of maximum
security arrangement
1. Dressier in these
David : Readings penal institutions.
in Criminology It (1964
and Penology was Ed.)
in 1938
p. 551.that after a serious
Open Prisons 469

riot in San Quentin prison, the appointment of a new Prison Board was proposed to
convert this farm into a minimum security institution.
The appointment of Kenyon J. Scudder as the Superintendent of open institution
for men at Chino (California) brought about a radical change in the administration of
open prisons. Ignorant and untrained guards were replaced by qualified and trained
young personnel. Scudder's philosophy was that there can be no regeneration except
in freedom. The rehabilitation must come from within the individual and not through
coercion.1 The California institution for men was opened on July 10, 1941 with
thirty-four convicts and three officials. The number subsequently rose to over 2500,
of whom many were lodged in forestery camps administered by the institution. The
number of escapes from these prisons was negligible, ranging from 4 to 1 per cent.
The Declaration of Principles of the American Correctional Association (1960)
spelt out the philosophy of open peno-correctional institutions as follows :—
(1) No law, procedure or system of correction should deprive any
offender of the hope and possibility of his ultimate return to responsible
membership of the society.
(2) In order to ensure restoration of the offender to the community as a
self-restraining member, he must be extended every opportunity to raise
his'educational level, improve vocational skills and add to his
information meaningful knowledges about the world and the society in
which he lives.
(3) It would be gross violation of the concept of rehabilitation, if
employable offenders in correctional institutions are not offered
opportunity to be engaged in productive work.
(4) The open peno-institution underlies the importance of group
approach to the problem of correctional treatment of offenders.
(5) In the course of open peno-institutional treatment, the offender
continues as a member of the correctional community so that he can
develop within him the spirit of energetic, resourceful and organised
citizen participation.
The Philosophy underlying Open Prisons in USA
The essence of open prison lies in absence of physical restraints against escape
by a system based on self-discipline and sense of responsibility towards the group in
which the inmate lives. The system encourages the offender to use the freedom
accorded to him without abusing it. The prisoners may be sent to open peno-
institutions either at the beginning of their sentence or after they have served a part of
it in a traditional prison. With a view to ensuring their social rehabilitation, prisoners
should be employed in work, which will prepare them for useful employment after
their release from the institution. The process of rehabilitation and re-socialisation
should take place in an atmosphere of trust therefore, the intake in open jail should
be on selective basis. The conditions of life in open prison should resemble closely to
those of normal life therefore, inmates should be brought in contact with the outside
world so that their links with society are not severed.
During the preceding sixty years, several American States have introduced
minimum security institutions. To name a few, Seagoville (Texas) has a minimum
security institution of the Federal Bureau of Prison with a carefully selected and
well-trained personnel. Wallkill (New York) is another splendid institution where
greater emphasis is placed on training and adjustment rather than mere custody. The
1. Kenyon J. Scudder : Prisoners are People (1952) p. 28.
inmates are afforded adequate opportunity for outdoor life and sense of freedom
brings them out as best citizens after they are finally released. The system is
otherwise termed as "day-parole" or "work release" and stands in between
imprisonment and probation.
It is significant to note that in United States open air institutions are used not
only for those who have served a considerable part of their sentence in prison but
also for the initial prisoners, if they are so recommended by the parole authorities.
International Perspective
The utility of open-prisons as a part of after-care device has been accepted at
the international level. The Social Defence section of the United Nations through its
literature on the subject convinced the member nations of the usefulness of open
institutions as a measure of prison reform. This helped a lot in creating interest
among professional men in the adoption of new ideas and experiments in the field of
prison reforms. The treatment of offenders in open conditions similar to outside
world as far as possible, found wide acceptance in several countries. This is indeed a
significant contribution to the development of progressive penology and a
professional approach to treatment of offenders at the international plane.
The subject of open-institutions was particularly discussed in the First United
Nation Congress on Prevention of Crime and Treatment of Offenders held in Geneva
in 1955. The consensus was that minimum security such as absence of prison walls,
bars, fence, armed guards, gun towers, and voluntary discipline among the prisoners
should be the two guiding principles underlying the working of these open
institutions.
The system of open prisons was essentially founded on trust and confidence
reposed in prisoners and was an intermediary stage between the guarded prison life
and the outside life of complete freedom. Five years later, when the Second U.N.
Congress on Prevention of Crime and Treatment of Offenders was held in London in
1960, open-institutions had become an integral part of Anglo-American prison
system for the correctional treatment of offenders. The prisoners were allowed to
attend their ailing relatives and friends and women delinquents were extended certain
additional facilities and maternity privileges.
Experience has shown that prisonisation may be appropriate only for
certain categories of offenders, but it may produce deleterious effects on several
others and instead of becoming useful citizens, they may become tough and
frustrated criminals with rather enhanced propensity for crime. Therefore, 'minimum
security' arrangement such as open or semi-open prisons, half-way houses, work
release and other semi-institutional methods of treatment have been found far more
useful for such offenders. Thus, open prisons have universally been accepted as
viable alternative to imprisonment. The object of such a mid-way arrangement
between incarceration and complete freedom, is to enable the prisoner to maintain
contact with outside world and reconstruct his life pattern through inter-personal
relationship with the fellow inmates and the members of society.
Open Prison Institutions in European Countries
Reformation of prisoners and their rehabilitation through modem methods of
penal treatment has also been engaging the attention of penologists throughout the
European sub-continent. With greater emphasis on correctional methods, there has
been a general trend towards substitution of traditional prison system by new types
of semi-liberty institutions. Different countries have adopted open prisons for their
Open Prisons 471

delinquents with varying degree of security measures.
Netherlands (Holland)
In Netherlands, open prisons were established at Roermond, Hoorn and
Wamsveld in 1957, 1959 and 1962, respectively. These were meant to serve as a
traditional place within the framework of pre-release treatment between the period of
prisoners' detention in a closed institution and his return to free life.1 The inmates of
these open prisons are allowed to mingle freely with members of society while at
work as also during leisure. The number of inmates in each of these institutions is
limited to a maximum of twenty-five so that their individual progress can be
conveniently watched by competent supervisors. The inmates for these prisons are
selected from among the prisoners of different prisons on the basis of
recommendations made by the Central Selection Committee which meets monthly.
These open prisons are meant only for those inmates who are recidivists and have
served a part of their sentence in well guarded prison. The inmate's stay in the open
camp cannot exceed five months. These open prisons are located in nearby
provincial towns so that the prisoners have adequate chances of being engaged as
wage-eamers by the private enterpreneurs. Of the total wage earnings of the inmate,
thirty per cent is deposited in his name to be paid to him at the time of his final
release whereas ten per cent is paid to him for his pocket expense. The inmates are,
however, expected to spend their leisure time within the institutional framework with
opportunities to visit the places of entertainment and recreation. They can meet their
friends and relatives without any supervision and are also free to put on clothes of
their choice.
France
France has an open prison institution in Casabianca and a semi-open Institution
in Oermingen. The inmates in these institutions go for work as free workers without
any supervision and they return to the prison every evening or during non-working
days. The scope for expansion of open air camps in France is rather limited because
the traditional prison system of this country allows prisoners to work outside the
institution with private employers under proper supervision. This makes the system
less expensive and prevents undue exploitation of the inmates.
Norway and Sweden
Norway and Sweden also established open prisons for their offenders. There
are special arrangements for lodging the drug addicts, habituals and drunkards.
Separate institutions called "Educational Centres" have also been set up for the
treatment of the young delinquents. The inmates are trusted and their sense of honour
and self-respect is stimulated. This helps in bringing about their reformation.
Educative Reformative Work in Hungary
The Republic of Hungary has adopted educative reformatory work as a
punitive measure to deal with grown up inmates whose term of imprisonment does
not exceed five years. Under the system, the convict is not committed to a prison but
is sent to work with a view to re-educating him. The term of punishment served at
the place of work in educative reformatory system is not to be considered as a
principal punishment but it is rather a clandestine fine to be paid in instalments. The
substance of the system is that when engaged in work as a punishment, it does not
entail any loss of freedom and at the same time enables the convict to re-educate
himself in supervision of his fellow workers. They find the work profitable and
advantageous to themselves and have a realisation that they are still useful to society.
472Belgium Criminology and Penology
The system of open institutions is being extensively used for the rehabilitation
of juvenile offenders in Belgium. Adequate facilities are provided for their education
and they are offered suitable employment after release from the institution. The
purpose of these open institutions is socialisation of inmates, which broadly connotes
the social and moral rehabilitation of the offenders. It enables the inmate to return to
normal social life in spite of his early deviance.
Australia
The first open prison camp was started in the State of Victoria in Australia in
1939. The system worked so well that it has now been adopted as an integral part of
the penal-programme of that country. Recidivists who have served a considerable
part of their sentence in a closed prison, are brought to open-prison camp for
rehabilitation before their final release. The number of escapes from these
institutions has been negligible and those who absconded were duly apprehended.
Thailand
Thailand has adopted United Nations Standard Minimum Rules for the
treatment of prisoners and started open prison system from 1960. The main reason
attributed for adopting the system was to reduce overcrowding in
prisons which made it difficult to organise correctional programmes in an orderly
manner. It was found that the system of open prison is more economical than the closed
prison system. The services of volunteer chaplains and teachers are utilised to impart
moral and religious teachings to the inmates. The inmates are freely allowed to meet the
public. Outdoor games are organised between inmates and school and community teams.
Boy Scout Camps are organised in the open prison area. Job guidance or placement
assistance is also rendered after release of inmates. The services of inmates are utilised
for construction of bridges, roads and community projects etc. During the final month
before parole, each prisoner has to go to temple compulsorily twice a week to purify his
mind. Thus, an endeavour is made to create a 'social climate' in open prisons with a view
to breaking up the traditional mode of life in the prison culture.
Middle-East Countries
The system of rehabilitation of criminals through open institutions has gained
momentum in middle-east countries as well. Israel,1 Iran and Iraq have made
commendable progress in this direction. The hand-cuffing of prisoners is discouraged
and there is greater emphasis on the freedom of prisoners from physical control so that
they can turn out to be disciplined citizens in their future life.
Open Air Camps in India
Taking inspiration from Anglo-American developments in the correctional field of
penology, the Indian penologists were convinced that India also cannot successfully
tackle its crime problem by putting criminals in prison cells indiscriminately. Experience
has shown that dumping the convicts in overcrowded prison cells serves no useful
purpose.
It is a known fact that Indian prisons are overcrowded.2 The percentage of
overcrowding, however, varies from prison to prison. It has been observed by the
Supreme Court that overcrowding per se is not constitutionally impermissible, there is no
doubt that it contributes to a greater risk of disease, higher noise levels, surveillance
problem etc. That apart, life becomes more difficult for inmates and work more onerous
for prison staff when prisoners are in overcapacity. Yet another baneful effect of
overcrowding is that it does not permit segregation among hardened offenders and the
first offenders who are generally corrigibles. The result may be that hardened criminal
Open Prisons 473
may spread their influence over others.3 The institution of open prison seems to be a
viable alternative to reduce overax /ding in prisons. The whole thrust in these open-
prison institutions is to make sure that after release the prisoners may not relapse into
crimes and for this purpose they are given incentives to live a normal free life, work on
fields or carry on occupation of their choice and participate in games, sports or other
recreational facilities. It is thus evident that the object of the open-prison system is to
inculcate in the prisoners a sense of
1. In Israel no juvenile is hand-cuffed and taking their photographs or finger-prints is also prohibited.
2. To illustrate, in Tihar Jail there were 8500 prisoners in 1994-95 as against the intake capacity of 2500
inmates.
3. Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 (653).
self-discipline and social responsibility and at the same time, ease the burden of
overcrowded prisons.
It has now been generally accepted that primary function of law and punishment is
to protect the society from criminals and this can best be achieved by bringing a change
in the attitude of offenders towards their fellowmen. Open air camps have been used as
one of the best tools for rehabilitation of offenders in society.828
The modem prison policy and techniques of handling criminals are by no means
new to Indian penology. In ancient India, the emphasis was on reformation of the
offender rather than punishing him indiscriminately. In ancient times, the eminent Hindu
jurist Manu, through his famous writings made it clear that unjust and harsh punishment
makes the criminal more dangerous to society and also brings disrepute to law-
administrators.829 He therefore, strongly pleaded that offenders should be placed in such
surroundings that they can think and realise for themselves that what they did was not in
the interest of society nor was it in their own interest. This sense of self-realisation would
make the offenders responsive to reformative methods of treatment in prisons. Manu the
eminent Hindu Law commentator, strongly pleaded that an effective scheme of after-care
can certainly help in bringing about rehabilitation of even the most dangerous and
hardened criminals.
Origin and Development
The development of open prison institutions in India can be traced back from the
middle of the nineteenth century when the first All India Jail Committee was appointed
in 1836 to review the prison administration of this country. The Committee, in its report
did not favour employment of prisoners on major public works and therefore, the system
fell into disuse during the next twenty years. The Second Jail Committee was appointed
in 1864 to review the Jail administration. It was in 1877 that the question of employing
prisoners on major work sites such as digging of canals or dams etc. was reopened in the
Prison Conference of that year. The Conference strongly recommended that employment
of prisoners as labourers on large public works was not only valuable but also a
necessary adjunct to jail administration. This recommendation was subsequently
accepted and followed in practice.
The All India Jail Committee of 1919-20 re-asserted the need for humane treatment
of offenders. The chairman of the Committee, Sir Alexender Cardew observed that the
most critical moment in a convict's life is not when he goes into the prison but when he
comes out of it. Having lost his character and social standing, he finds it difficult to
adjust to the normal life of a free society.
The Committee expressed a view that the open air life and employment in the form
of labour were not averse to reformatory influences. Construction of jail buildings was
828 Sethana M. J. : Society and the Criminal (2nd Ed.) p. 295.

829 Sen, P. K. : Penology Old & New (1943) p. 12.
considered as a suitable form of such work for prisoners. Though this Committee thought
that the employment of prisoners on agricultural farms was the most natural and
appropriate form of labour especially for prisoners who were largely drawn from the
agriculturist background, but such employment involved distribution of labour over a
very wide area which made guarding and supervision difficult. Therefore, the idea was
dropped.
During 1920-27, several provincial governments appointed Committees to review
prison administration and recommended changes of a far-reaching nature. But the
question of prisoner's employment did not go beyond expansion of cottage industries in
prisons.
The post-independence period in India witnessed a radical change in the prison
policy and techniques of handling offenders. The old method of confining prisoners
inside well guarded prisons was discarded as it served no useful purpose for the
rehabilitation of criminals after their release. With the advancement in knowledge of
human behaviour, the part played by psycho-social environment in the development of
offender was emphasised. It was realised that inmates should be afforded fullest
opportunity to associate themselves with free society and the gap between the life inside
and outside the prison should be narrowed down as far as possible. Open air Camps have
done commendable service in achieving this objective.
The first scientific effort to modernise prison in India was made by Sir Walter
Reckless, the U.N. Technical Expert who visited India in 1952 when he submitted an
excellent report on prison administration in India. As a result of this, All India Jail
Committee was appointed in 1956-57 which worked for three years and made useful
recommendations for prison reforms. One of the recommendations of the Jail Committee
was to set up open jails for the rehabilitation of prisoners. The emphasis under this
system was on self-discipline and self-help. These open jails were characterised by the
absence of material and physical precautions against escapes so as to inculcate a sense of
responsibility among inmates towards the group in which they live.
It must be stated that the basic philosophy behind the working of open prisons is
utilisation of prison labour for employment in open conditions. It must be stated that
even though the employment of prisoners in open conditions is more than a century old
but the objectives of such employment have vastly changed in the sense that originally it
was meant to take hard work from prisoners under conditions which were humiliating
and dehumanising whereas today, it is aimed at providing them with useful and
meaningful work under conditions which help them in restoring their self-respect and
self-confidence.
Main Characteristics of Open Prisons
The main features of an open prison institution may briefly be summarised as
follows :—
(1) It inables informal and institutional living in small groups with minimum
measure of custody.
(2) It efforts to promote consciousness among inmates about their social
responsibilities.
(3) It offers adequate facilities for training inmates in agriculture and other
related occupations.
(4) It provides greater opportunities for inmates to meet their relatives and
friends so that they can solve their domestic problems by mutual discussion.
(5) It allows liberal remissions to the extent of fifteen days in a month.
(6) It make it possible to pay proper attention towards the health and recreational
facilities for inmates.
Open Prisons 475
(7) The open jail institutions are managed by especially qualified and well
trained personnel.
(8) It provides improved diet with arrangement for special diet for weak and sick
inmates.
(9) It ensures payment of wages in part to the inmates and sending part of it to
his family.
(10) There is provision for financial assistance to inmates through liberal bank
loans.
(11) There is free and intimate contact between staff and the inmates and among
the inmates themselves.
(12) It considers regular and paid work for inmates under expert supervision as
the best method of reformation of offenders; and
(13) The avoidance of unduly long institutional detention of prisoners is the basic
policy underlying the open jails.
Advantages of open prisons
The utilisation of open prisons during post-independence era has been most
spectacular, and elicited much interest among penologists because of the realisation that
a substantial proportion of prison inmates do not need retention in guarded prison
enclosures. Instead, those who are 'carefully selected can be placed in open air camps,
farm colonies or other outside work with a reasonable degree of safety. The obvious
advantages of the open prisons as compared with the conventional prisons may be briefly
stated as follows :—
1. They help in reducing overcrowding in jails.
2. The construction cost is fairly reduced.
3. The operational cost of open prisons is far less than the enclosed prisons.
4. Engaging inmates of open air prisons in productive work reduces idleness and
keeps them physically and mentally fit.
5. Open prisons offer opportunities for self-improvement and resocialisation to
the inmates.
6. The removal of prisoners from general prison to an open prison helps in
conservation of natural resources and widens the scope of rehabilitative
process.
The scheme of open jails for prisoners is essentially based on the twin system of
probation and parole which have gained popularity as correctional techniques of
reformation in modem penology.
Open Air Prisons in Different States of India
The State of Uttar Pradesh was first in point of time to set up an open air camp
attached to Model Prison at Lucknow in 1949. Andhra Pradesh followed the suit and
started Mauli Ali Agricultural Colony for convicts in 1954. A year later, Maharashtra
started an open air prison at Yarvada as a part of its correctional programme. The success
of open prisons in these States encouraged other States to set up open air camps for the
rehabilitation of their offenders by providing them employment on agricultural farms,
industrial establishments and construction sites. At present there are twenty eight open
prisons1 operating in the country, the more important among them are as follows2 :—
Name of State Name of the open prison(s) Year of

establishment
Andhra Pradesh Mauli Ali Colony 1954

Prisoner's Agricultural-Colony, Anantpur. 1965
Assam Open Air Agricultural-cum-Industrial'
Colony, Bagbheta, Jorhat. 1964
Gujarat Open Prison, Amreli 1968
Open Prison, Ahemadabad 1972
Himachal Pradesh Open Air Jail Bilaspur (Himachal Pradesh) 1962
Kerala Open Prison, Nettvketheri 1962
Madhya Pradesh Open Jail, Hoshangabad 2011
Maharashtra Open Prison, Yarvada 1955

Open Prison, Paithan 1968
Open Prison, Amraoti 1971
Mysore Open Air Jail, Soundatti 1968
Punjab Open Air Agricultural Prison, Nabha 1970
Rajasthan Prisoner's Open Air Camp at Agricultural 1955
Research Farm, Durgapur (Rajasthan)
Shri Sampurnanand Bandi Shivir, Sanganer 1963
(Jaipur)
Prisoner's Open Air Camp, Central Mechanised 1964
Farm, Suratgarh
Tamil Nadu Open Air Prison, Singanallur 1956
Open Prison attached to Central Prison, Salem 1966
Uttaranchal Sampurnanand Agricultural-cum- Industrial 1960

Camp, Sitarganj (Dist. Nainital)
Uttar Pradesh Sampurnanand Open Air Camp at Chakia in 1952
Varanasi district
Sampurnanand Camp, Ghurma (Dist. Mirzapur) 1956
Open Prison attached to Model Prison, Lucknow 1949
1. The State of Rajasthan has the highest number of open Jails i.e. ten operating within the State.
2. Information collected from the Central Bureau of Correctional Services formerly called the
National Institute of Sodal Defence, New Delhi.
There has been some confusion about the exact nature and scope of open prisons.
Some people treat these open institutions as places of employment to prisoners while
others characterise them as an integral part of pre-release programme. Some scholars are
of the opinion that such open institutions are places where convicts who were victims of
circumstances could be given greater freedom and responsibility similar to the normal
living conditions of society so that they may reform themselves and become fit to lead a
normal life in society after their release.
Be that as it may, there is no denying the fact that open prisons differ from
conventional prisons in atleast two fundamental aspects, namely :—
(i) absence of maximum security arrangements such as, walls, barbed wire-
Open Prisons 477
fencing, locks, bars, hand-cuffs and special armed guards ; and

(ii) greater contact of inmates with the outside world so as to develop among
them a sense of responsibility towards the community.
The utility of open jails in India has been commended by the Supreme Court in
Dharmbir v. State of Uttar Pradesh,1 wherein the Court observed that open prisons had
certain advantages in the context of young offenders who could be protected from some
of the well-known vices to which young inmates are subjected to in the conventional
jails. The Apex Court, therefore, directed the State Government to send two young
accused prisoners who were in their early twenties to one of the open prisons in Uttar
Pradesh without adhering to the technicalities of law.
As regards the utility of open prisons, the Supreme Court in Ramamurthy v. State of
Karnataka,2 has observed that open-air prisons play an important role in the scheme of
reformation of a prisoner which has to be one of the desideratum of prison management.
They represent one of the most successful application of the principle of individualisation
of penalties with a view to social readjustment. It is so, because release of offenders on
probation, home leave to prisoners, introduction of wage-system, release on parole,
educational, moral and vocational training of prisoners are some of the features of open-
air prison (camp) system. That apart, in terms of finances, open institution is far less
costly than a closed establishment and the government is able to employ in work, for the
benefit of the public at large, jail population which would have otherwise remained
unproductive. The entire functioning of the open air prison is based on the philosophy
that after release, the prisoners may not relapse into crimes, for which purpose they are
given incentives to live a normal life by training them in the fields of agriculture,
horticulture etc. Games, Sports, and other recreational facilities, which form a routine life
at the open-air camps, inculcate in the prisoners a sense of discipline and social
responsibility and the prayers made regularly provide them spiritual strength.
The Apex Court further observed that "though open-air prisons, create their own
problems which are basically of management, we are sure that these problems are not
such which cannot be sorted out. For the greater good of the society, which consists in
seeing that the inmates of a jail come out, not as a hardened criminal but as a reformed
person, no managerial problem is insurmountable. So let more and more open-air prisons
be opened. To start
1. (1979) 3 SCC 645.
2. (1997) 2 SCC 642 (659).
with, this may be done at all the District headquarters of the country".830
With a view to appreciating the usefulness of open-prison as a correctional
measure of treatment of offenders, it shall be pertinent to discuss in detail the
working of some of the leading open prisons of India.
Early Sampurnanand Camps in U.P.
The State of Uttar Pradesh was the first to initiate steps to set up open prisons
in the name of Late Dr. Sampurnanand who was the then Home Minister of the
State.
1. Sampurnanand Camp, Chakiya
The first open air camp was started in Chakiya in the Chandauli District of
Uttar Pradesh. It was set up on October 1, 1952 on the left bank of river
Chandraprabha. The nearest police station was at a distance of 20 km. from the
camp. The inmates of the open prison were provided job on the dam construction
site near village Jamsatti. The camp was located in natural surrounding of ravines
and dense forest. The then Chief Minister of Uttar Pradesh who inaugurated this
830 Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 (659) para 50.
camp was so much impressed by this idea of Dr. Sampurnanand that he announced
that all the camps to be established in future will be named as Sampurnanand camps.
The prisoners kept in the camp were no longer called prisoners and they were
paid wages for the labour done by them on dam site. There were lesser fetters on the
inmates and the life-style in the camp was so modelled as to inculcate the spirit of
self respect and self-reliance among the inmates. The camp functioned for about one
year and was wound up in October 1953 on completion of the construction of dam
on the river Chandraprabha.
During this period, about 4200 prisoners were brought to live in the open camp
from time to time. They lived in batches of 20 each under a canopy. The results
were so encouraging that only 19 out of 4200 prisoners escaped from the camp and
2 died of some disease. The wardens in the camp were plain clothed supervisors
without any uniform.
The remarkable achievements of the Chandraprabha Open Air Camps inspired
the Uttar Pradesh Government to expand the scheme further. Therefore, on
completion of the work on the Chandraprabha dam, the inmates were sent to three
different work sites in three batches each having 200 inmates.
J The first batch of 200 inmates was sent to a place 3.2 km. from Chakiya to
work on a canal which was being widened to a stretch of 2.5 km. They worked as
labourers and were paid wages for their work.
The second batch of 200 inmates was deployed for construction of a new road
from Chandraprabha to Naugarh after cleaning the forest by felling trees I etc.
The third batch was utilised to construct an earth dam at Kamla Bundhi, which
was about 6.5 km. from the camp to provide support to the old dam.
2. Sampurnanand Camp, Naugarh
Most of the inmates of Chandraprabha were sent on October 4, 1953 to another
dam site on the river Bulanala, a tributary of river Karmansa about 30
km. further deep in Vindhya Ranges. This open air camp here was well organised and
equipped with necessary training facilities for inmates. The camp lasted until January,
1955 and during this period, about 3900 inmates were lodged in the open prison camp.
They were accommodated in barracks and tents spread over 'U' shaped area which was
500 ft. wide and 500 ft. deep. The number of escape from the camp was only ten, out of
which three had escaped because of some family problems. The camp had its own
hospital and post-office for the facilities of the inmates.
3. Sampurnanand Camp, Shahgarh
The Naugarh camp was wound up due to completion of the Bulanala dam in
January, 1955. The inmates were therefore, sent to work in a project under work for
construction of a subsidiary canal to carry waters of Sharda Sagar to be discharged into
Sharda Canal. This project was located in district Pilibhit about 8 km. away from
Shahgarh.
The earlier two open air camps were operating in dense forest areas but this was
the first camp to be established in the vicinity of plain area. It was surrounded by several
villages and the location of the project was close to Shahgarh railway station. There was
2303 inmates living in this camp. The duration of this open prison was a little over one
and a half year (January 19, 1955 to November, 15, 1956) and there were only seven
escapes recorded during this period. The inmates were allowed to send their earnings and
savings to their families.
4. The Saraya Ghat Camp (Varanasi)
A bridge was being constructed on the river Varuna to link Samath (the ancient
seat of learning where Lord Buddha give his first sermon) with Varanasi city. The
construction of the said bridge was completed within a record time of a little over four
months as the work was started on February 1, 1956 and completed on May 31, 1956.
The inmates of the open prison worked in shifts of 400 each day and night and
completed the work much ahead of the scheduled time. They lived in tents pitched in the
campus and were paid wages. Only one warder supervised their work. The inmates were
free to visit adjoining villages without fetters. Women also moved about freely without
any terror or fear from these prisoners. The then President of India, Dr Rajendra Prasad
visited this camp and was so impressed by the attitudinal change of the inmates of the
camp that he was pleased to remark, "in the soul of an Indian today social values are
alive, even if that Indian is a prisoner". Despite the open atmosphere of the open air
camp, only one prisoner escaped which itself speaks of the success these open camps
were achieving.
Sampurnanand Agricultural-cum-Industrial Camp, Sitarganj (District, Nainital),
Uttaranchal
This open prison was started in February I960 in the tarai region on Nainital district
near Kichha which is now in Uttaranchal State. It was one of the largest open prisons in
the world which was spread over seven adjoining villages, namely, Kalyanpur,
Merabararara, Prahlad Pulsiya, Lalarpatti, Bam, Lalarkhas and Rudrapur of Sitarganj
Tehsil.
The camp was located near Sitarganj town. In the beginning the camp had the status
of a District Jail which was subsequently raised to the status of a Central Jail.
The camp was started on 5965 acres of land out of which 2000 acres of reclaimed
land was handed over to the Government for rehabilitation of displaced persons. The
forest land was cleared by the inmates for agricultural purposes. Since the inmates and
camp officials lacked technical knowledge and practical training, hence a joint venture
was started on October 2, 1975 with the partnership of Pandit Govind Ballabh Pant
mark the occasion.

Agricultural University. It worked for twelve years with substantial agricultural growth
and profit. In addition to cultivation of land, the inmates were trained in carpentry,
masonary work, dairy fanning, poultry farming, sheep-rearing etc.
Initially, only long-term prisoners were brought to this camp to work on
agricultural farms. The inmates were paid for the day's wages and some of them were
also engaged in cottage industries such as spinning, weaving, gur-making etc. The camp
accommodated several long-term prisoners as wage-eamers. The life inside the open
camp was perfectly routined and inmates hardly thought of escaping from there. Greater
emphasis was laid on the character building of the inmates so that they could become
law-abiding citizens after their return to society.
Originally, the criterion for eligibility of prisoners for Sampurnanand open prison
camps was highly selective. In the beginning, 500 inmates were brought to this came.
The casual prisoners and habituals belonging to Uttar Pradesh with not more than one
previous conviction between the age group of 21 to 50 years and sentences for one year
or more with unexpired sentence of atleast six months were eligible after they had spent
one-eighth of the sentence including remission. Their conduct should have been good
and they should not have got more than one punishment for prison offences per year of
the period undergone and they were to be physically and mentally sound, free from any
physical deformity and infectious disease. Their consent for being booked to the open
prison was necessary. Returnees and ex-convicts as also the political offenders and those
committing offences under Sections 153A, 216A, 231, 232, 295, 298, 303, 309, 328,
364, 386, 389, 396, 417, 489A of the Indian Penal Code were ineligible for being sent to
open air camp.
The life in the camp began with mass prayer early in the morning. This was
followed by a mass-drill. Thereafter, the inmates were to attend their work at work-sites.
While at work, the officials of the camp constantly kept on reminding the inmates of the
virtues of honesty, sincerity and truthfulness and appealed them to keep up the name and
dignity of the camp and not to bring disrepute to the institution. For this purpose, they
made extensive use of amplifiers and loud speakers. This had a tremendous
psychological impact on inmates as it enabled them to appreciate the virtues of an
upright and honest living. During leisure hours the inmates were imparted religious and
moral education through casual talks, discourses, lectures, films etc. with a view to
impressing upon them the virtues of ideal life. The craft teachers employed in the camp
imparted vocational training to inmates in different trades and cottage industries.
Adequate recreational facilities were also made available to the inmates of the camp. On
festivals and occasions of national importance, special programmes were arranged for
inmates and they were served special diets to
Another significant feature of the camp was that all possible efforts were made to
keep inmates away from the evils of incarceration. Even the use of conventional terms
such as "convict", "jailor", "warden", "prison", etc. were avoided to protect the inmates
from stigmatisation of prison life. The inmates were called "mazdoor" instead of convict.
The warden, head warden, deputy jailor and jailor were called the 'supervisor', head
supervisor, welfare officer and the chief welfare officer, respectively. The object was that
while in the camp, the inmates are made to forget about their past prison-experiences so
that they can resume normal life in society after their release from the camp without any
stigma.
This open air camp was without any physical barriers and the inmates enjoyed
complete liberty of movement without any guard or watch on them. The attendance
record and other particulars about the inmates were maintained by the official of the
camp called the Group Officer. Each Group Officer was in charge of one hundred and
fifty inmates. Mutual trust and confidence was the central principle underlying the
Open Prisons 481
working of Sampurnanand Camps.

The inmates were neither searched nor counted during night. Their attendance was
taken only once while they presented themselves for work. They could meet their friends
and relatives without any restrictions. They were also eligible for periodical home-leave.
The maintenance charges of inmates were recovered from the wages earned by them as
"workers" on work-sites.
The number of escapes from the camp was negligible and those who absconded
were apprehended. For breach of camp discipline, the inmates were nominally fined and
the amount so recovered was to be credited to the amenities fund which was utilised for
the welfare of inmates.
The special feature of the camp was that one of the group of the inmate volunteers
(Swayam Rakshaks) guarded the camp day and night and lived in open without any
security arrangements. The construction of the building etc. of the camp was done by the
inmates themselves under the supervision of a junior engineer. It had as many as twelve
perfectly skilled mason to do the work. The inmates were called 'shivir-niwasi' so that
there was no stigma of being called as prisoners.
Open Air Camp in India at Durgapur
Durgapur Open Air Camp in Rajasthan was indeed a unique venture of the
Government of Rajasthan in the field of correctional services and rehabilitation
programme for offenders. This was an agricultural colony about nine kilometres away
from Jaipur and is spread over an area of 116 acres of land. This open prison camp was
started in 1955. To begin with, only a limited number of long-termers (usually 6 to 8)
were sent from Jaipur Jail to work in this open farm without any escort or supervision.
The inmates stayed in the farm along with their families in the residential quarters
provided for this purpose. They received wages for daily work. The camp worked so
successfully that there was only one escape in the first ten years of its working.
Open Prisons in Maharashtra and Andhra Pradesh
An open prison was established at Yarvada in Maharashtra in 1955. The
inmates in this open prison were put to farming on co-operative basis. Another such
open prison camp was started at Swantrapur in Satara district of Maharashtra. This
prison farm is extended over nearly 50 acres of land. The inmates in this prison farm
lived with their families in huts constructed for the purpose without any surveillance
or supervision.
An agricultural colony for convicts is also at work under the name of Mauli Ali
colony in Andhra Pradesh. The colony covers about 93 acres of land and allows
inmates to live with their families. This open institution is particularly suited for
convicts with agricultural background.
Nav Jiwan Shivir831 at Mungaoli (Madhya Pradesh)
An open jail for the rehabilitation of hardened and habitual criminals was set up
at Mungaoli in Guna District of Madhya Pradesh in November 1973. The idea of
setting up this open jail was mooted after the mass surrender of dacoits of Chambal
Valley on advice of Sarvodaya leader Late Shri Jai Prakash Narayan. The surrender
was led by Mohar Singh and Madho Singh, the notorious dacoits of Chambal ravines
who carried rewards of 2 lakhs and 1.5 lakh dead or alive. Out of 550 surrendered
dacoits, more than 400 were released after completion of their term of imprisonment
in 1980 and only those serving imprisonment for life were retained. But the number
of such convicts has never exceeded 20 or 25. During nineties, this Jail housed only
831 The word shivir stands for 'camp'.

mark the occasion.

13 prisoners with a staff of 35 looking after them. The intake capacity of this open
jail was about- 150 inmates. This jail was housed in old building of Basic Training
School with necessary alterations and modifications. It had eight barracks for
prisoners excluding accommodation for jail staff. These barracks were not locked in
night nor there were any walls around the jail compound. The jail was spread over an
area of about one hectare of land fenced by three metres long wire-fencing.
The inmates were paid wages for their work so that they could support their
families. They could be granted bank loans for starting certain occupations such as
dairying, poultry farming, tailoring, agricultural farming etc. The earnings of inmates
through these occupations were credited to their bank accounts. The peculiar feature
of this open-jail was that the inmates had their own canteen run on co-operative
basis. The inmates also had their own panchayat for settling their mutual disputes
and maintaining discipline inside the institution. There were only three or four
escapes from this jail and the absconders were promptly apprehended. The working
of this open-jail for the last so many years has shown that even the most hardened
and professional criminals could be returned to society as law-abiding citizens if they
are trusted and taken into confidence.
The inmates in Nav Jiwan Shivir at Mungaoli were allowed fifteen days parole
in ever}' six months to meet their relatives and members of the family. They could
write four letters in a month free of cost and any number of letters at their own cost.
There was a common mess. The life inside the shivir was well regulated and
disciplined.
However, consequent to the mass release of dacoits in 1980's, the State
Government had to spend lakhs of rupees per year on this jail. Since the dacoit
menace no longer persists, the lifers lodged in this jail were transferred to the
nearest central jail and this jail was finally wound up.
Nav Jiwan Shivir at Lakhimpur (M.E.)
Encouraged by the success of Mungaoli Open Jail, the Government of Madhya
Pradesh had started another open Jail at Lakhimpur in Panna district of the State in 1972.
This open jail was established primarily for the rehabilitation of surrendered dacoits from
Bundelkhand region. This open jail could accommodate only fifty surrendered dacoits. It
extended over 124.75 acres of land, of which 12.75 acres was used for buildings and
structures while the remaining 112 acres was meant for agriculture. Adequate irrigation
facilities were available for inmates to carry on farming on this land.
The major objective of the Nav Jiwan Shivirs at Mungaoli and Lakhimpur was to
provide individualised treatment, resocialisation and rehabilitation of surrendered dacoits
and hardened offenders. These Shivirs permitted freedom of movement to inmates in
local society subject to limitations of prison-rules. These open-prisons offered adequate
opportunities to inmates to restructure their lives under trained and experienced prison
personnel. Expert guidance was provided for vocational and industrial training and
physical fitness. These Shivirs also helped in strengthening the familial and public ties of
the dacoit-prisoners.
The life in the Shivirs sought to develop self-discipline among the inmates thereby
enabling them to lead a disciplined social life and shed off their aggressive attitude. This
Shivir was also wound up and closed consequent to the eradiction of dacoit problem from
the State.
The Madhya Pradesh Jail Committee, in 1974 had recommended the setting up of a
third Nav Jiwan Shivir in Bastar District of Madhya Pradesh.832 It was to be set up
exclusively for women prisoners. But keeping in view the financial implications and also
non-utilization of the existing two open jails to their full capacity, the proposal was
finally dropped.
Open Prison, Hoshangabad (MP)
The State of Madhya Pradesh has built an open jail in Hoshangabad, which started
functioning with effect from January 3, 2011. The open prison is built on an area of 17
acres of land at the cost of Rs. 3.26 crores. The prison, first of its kind in the state,
presently houses 25 selected prisoners from all over Madhya Pradesh.
The jail also has facilities for education to children of prisoners and helps them to
lead a normal life in the prison premises Employment oriented programmes which can
help inmates becoming skilled and take up job after being released are also being run in
the jail. Taking a humanistic view about prisoners, the State Government has decided to
open industrial training institutes (ITI's) for jail inmates of Betul and Dhar.
Critical Appreciation
Though the working of open-jail during the first two decades of its beginning in
India proved to be useful and showed some positive results but
832 Now, the State of Chattisgarh.

Open Prisons 484

there has been a sharp decline in the popularity of these prisons in the recent past.
Perhaps it is for this reason that there has been no significant addition to the existing
open jails after 1980. Even the idea of an exclusive open jail for women did not gain
much public support. Perhaps the true reason for public apathy for open prisons is
the extensive use of probation as a measure of individualised treatment of offenders
which seeks to bring about reformation and rehabilitation of criminals within the
community itself. Resort to semi-open technique of open Jail is therefore, not
mustering the desired public attention.
Another serious allegation against the working of open prisons is that they are
looked upon as taming places of miscreants. Many have questioned the advisability
of maintaining them at the cost of public exchequer. It is alleged that in an anxiety
for reformation of prisoners, the basic fact that they are notorious and formidable
criminals, is lost sight of. The inmates more often than not, flout prison rules
blatantly and even dictate terms to the prison officials. In order to avoid "trouble"
and confrontation with dreaded offenders, the prison officials choose to do nothing
but transfer their right and responsibilities to the powerful "criminal chief" who
commands power over his fellow-inmates because of his muscle strength or past
status. This deliberate malingering of duty in the name of promoting self-discipline
and self reliance among the inmates, defeats the very purpose of open prisons. The
need of the day therefore, is to review the functioning of the existing open prisons
and introduce reforms which would be really beneficial to the inmates as also those
coming in contact with them.
That apart, the Jail Reforms Committee has expressed a view that Section 433-
A of the Code of Criminal Procedure, 1973 which provides for a minimum
imprisonment of fourteen years for life convicts negatives the benefit of curtailment
in the sentence of inmates of open jails which they earn by way of good conduct in
prison. In fact, it defeats the very purpose of open prisons.
The Jail Reforms Committee has suggested two kinds of open prisons, namely,
open, and semi-open jails and the criterion for booking prisoners to these open jails
should not be long-termers or short-termers but overall possibility of prisoner's
propensity to reform and re-socialisation.
Despite certain shortcomings in the working of open prisons, it must be
accepted that these open jails have become a part and parcel of the present day
prison system. They have rendered commendable service to society in general and
prison community in particular. The working of open prisons over the years has
proved beyond doubt that 'help' and not 'hate' should be guiding principle underlying
modem prison administration. At the same time it also reflects upon the futility of
long term incarceration as a measure of punishment. The directives of the Supreme
Court contained in Ramamurthy's case1 should have been viewed seriously by the
States and they should have initiated steps to set up open air camps at least in each
District headquarter for the resodalisation of corrigible prisoners. The apathy of the
State Governments in this regard has led to overcrowding in prisons which
contributes to a greater risk of disease, surveillance and disorder among the prison
inmates resulting in manifold problems for the prison management.
1. (1997) 2 SCC 942.

Chapter XXI
Executive Clemency, Good Time Laws and

Indeterminate Sentence
E ven the most rigid systems of criminal justice on the globe have found it
necessary to accept such concepts as mitigating circumstances and suspended
sentence for circumscribing discretion and setting limits to disparities that are
possible in judicial sentencing. Penologists all over the world have always expressed
a doubt about the efficacy of fixed sentence for offenders. They have persistently
argued that greater discretion in judicial sentencing is absolutely necessary for
treatment of offenders through modem rehabilitative methods. Some discretion in
mitigating the rigours of punishment should necessarily be vested in the head of the
executive in the form of granting pardon, amnesty, reprieve or respite and
commutation of sentence of the offender. In India, the President of India and the
Governors of the States respectively, are empowered to grant pardon, reprieve, or
commute the sentence of any convict. Similar provisions exist in the constitutional
documents of certain other countries which empower the executive head of the State
to grant pardon or alter the sentence of the convict.833 The King in England and the
President of United States of America also exercise powers to pardon in criminal
cases.
Pardoning Power
The ruler's power to grant pardon to offenders has been in existence in India
from time immemorial. It appears to be an archaic survival of an earlier era, during
which the State was governed by an omnipotent ruler, who might have an occasional
urge to demonstrate his benevolent disposition.834 However, it has now become a
universal feature of contemporary legal system of the world. Most countries have
some kind of law which allows power to pardon vested in the executive head of the
State to supersede the judicial process of sentencing.835
The term "pardon" has been defined as an act of mercy by which the offender is
absolved from the penalty which has been imposed on him. hi other words, grant of
pardon wipes off the guilt of the accused and brings him to his original position of
innocence as if he had never committed the alleged offence.836 The grant of pardon
may, however, be absolute or conditional. Under conditional pardon, the offender is
let off with certain conditions, the breach of which will result into revival of his
sentence and he shall be subjected to the
833 Article 60(d) of the Constitution of erstwhile U.S.S.R. and Article 48 (1) -of the
Constitution of Ghana.
834 AIR 2008 SC (Journal) 91.
835 Ibid.
836 Sutherland and Cressey : Principles of Criminology (6th Ed.) p. 544.
X. 69 L.Ed. 527, the dicta in this case was approved and adopted by the Supreme Court of India in
Kuljit Singh v. Lt. Governor, Delhi, AIR 1982 SC 774.
Executive Clemency, Good Time La'jvs and Indeterminate Sentence 487
unexhausted portion of the sentence.

Pardon as a mode of mitigating the sentence of accused has always been a
controversial issue since long. Some authorities consider its retention in penal system
essential as it may substantially help in saving an innocent person from being
punished due to possibility of miscarriage of justice or in case of doubtful conviction.
Moreover, the hope of being pardoned itself serves as an incentive for the convict to
behave himself well in the prison institution and thus helps considerably in solving
the problem of prison discipline. During the medieval period, pardon was extensively
used as a method of reducing overcrowding in prisons during war, political upheaval
and revolt. Those who reject pardon as an effective measure of mitigating sentence
argue that the power to pardon is often misused by the executive. There is a
possibility that the convict may secure his release from prison by exerting undue
influence on the executive authority. Another evil that ensues as a result of 'pardon'
as a measure of undoing the guilt of the convict is that it has an adverse effect on
prisoners because they invariably try to secure a 'pardon' rather than reforming
themselves. Despite these shortcomings, the greatest advantage of pardoning power
of the executive lies in the fact that it is always preferable to grant liberty to a guilty
offender rather than sentencing an innocent person.
The power to grant pardon or commute a sentence pronounced by a court of law
is not something that the Emperors with divine right enjoyed in earlier times. The
modern democracies in the world with judicial systems that are above reproach, have
vested in their Executive head, the power to grant pardon or clemency. For instance,
the American Constitution gives President the power to grant reprieve or pardon for
offences against the U.S., except in case of impeachment. However, this power is
available only in case of violation of federal law and pardon in case of violation of a
State law has to come from the Governor of the State concerned.
In Britain, the constitutional monarch can pardon or show mercy to a convicted
person on the ministerial advice. In Germany, Italy, Russia and France, the power to
grant pardon and commute sentences rests with the President. In Canada, pardons are
considered by the National Parole Board under the Criminal Records Act etc.
In most of these countries, there is a provision for judicial review of the pardon
granted in the event of grounds for pardon being found unsatisfactory. In U.S.A., a
pardon may be held void if it appears that the pardoning power was exercised on the
basis of wrong information. Thus, "a pardon procured by false and fraudulent
representations or by intentional suppression of the truth is void, even though the
person pardoned had no part in perpetrating the fraud." The modem practice of
pardoning the convicts is said to be derived from the British system in which it was a
Royal prerogative of the King to forgive. It also finds mention in code of
Hammurabi, a series of edicts that were developed in Babylon nearly 4,000 years
ago.
Explaining the law relating to pardon in U.S.A., Chief Justice Taft in Ex parte
Phillip Grossman} observed, "executive clemency exists to afford relief from undue
harshness or evident mistake in the operation or the enforcement of the criminal law.
The administration of justice by the Courts is not necessarily always wise or certainly
considerate of circumstances which may properly mitigate guilt. To afford a remedy,
it has always been thought essential in popular governments, as well as monarchies,
to vest power to ameliorate or avoid particular criminal judgments."
In India, the power to grant pardon is conferred on the President of India and
the Governors of States under Articles 72 and 161 of the Constitution of India.

Article 72 empowers the President to grant pardons etc. and to suspend, remit or
commute sentences in certain cases. The Article reads as follows :
72 (1) the President shall have the power to grant pardons, reprieves,
respites or remission of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence—
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against
any law relating to a matter to which the executive power of the Union
extends;
(c) in all cases where the sentence is a sentence of death.
Article 161 empowers the Governor of States to grant pardon, reprieves,
respites or remissions of punishment or suspend, remit or commute the sentence of
person convicted of an offence against a law relating to a matter to which the
executive powers of the State extends.
In Maru Ram v. Union of India} the Constitution Bench of the Supreme Court
held that the power under Article 72 is to be exercised on the advice of the Central
Government and not by the President on his own, and that the advice of the
Government binds the head of the Republic.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal,837 the
Supreme Court reiterated its earlier stand in Maru Rani's case and
observed as follows ; "The power under Articles 72 and 161 of the
Constitution can be exercised by the Central and State Governments,
not by the President or Governor on their own. The advice of the
appropriate Government binds the Head of the State. No separate
order for each individual case is necessary but any general order
made must be clear enough to identify the group of cases and
indicate the application of mind to the whole group."
In the instant case, the Deputy Secretary, Judicial Department, Government of
West Bengal informed the Court that after examining and considering the prayer the
State Government rejected it, thereafter, it was transmitted to the Covemor only
because it was addressed to him, and therefore, the Governor in his turn, rejected the
convict's prayer which was duly communicated to the convict.
Later, convict's special leave petitions having been dismissed by the Supreme
Court, he filed a mercy appeal to the Hon'ble President of India under Article 72 of
the Constitution but that too was rejected by the President vide his order dated 4th
August 2004. The appellant then applied to the Supreme Court
837 Criminal Appeal Nos. 394-394 of 2004 decided on 26-3-2004.

for review of President's decision of rejection of his appeal which the Court
declined on August 12, 2004. Consequently the convict Dhananjoy was hanged till
death on 14th August 2004 in Central Jail, Alipore in West Bengal.
The Supreme Court, in Ranga Billa case838 was called upon to decide the nature
and ambit of the pardoning power of the President of India tinder Article 72 of the
Constitution. In this case, the death sentence of one of the appellants was confirmed
by the Supreme Court. His mercy petition was also rejected by the President.
Thereupon, the appellant filed a writ petition in the Supreme Court challenging the
discretion of the President of India to grant pardon on the ground that no reasons
were given for the rejection of his mercy petition. The Supreme Court dismissed the
petition and observed that the term "pardon" itself signifies that it is entirely a
discretionary remedy and the grant or rejection of it need not be reasoned.
The Supreme Court was once again called upon to decide the justiciability of
President's power to grant pardon, reprieve or remission or to suspend, remit or
commute the sentence of death passed against the condemned prisoner under Article
72 of the Constitution in Kehar Singh v. Union of India.839 Reiterating its earlier stand,
the Apex Court held that grant of pardon by the President is an act of grace and
therefore, cannot be claimed as a matter of right. The power exercisable by the
President being exclusively of administrative nature, it is not justiciable. The
President can scrutinise evidence on record and may come to a different conclusion
from that of the Court regarding the guilt or sentence of the accused but his decision
in this regard cannot modify the Court's judicial record. Again, the condemned
prisoner is not entitled to oral hearing from the President as the matter is entirely
within the discretion of the President under Article 72 of the Constitution. In the
instant case, the mercy appeal of the accused Kehar Singh was rejected by the
President of India.
Quoting the observations of Justice Holmes in this case, the Apex Court held :
"a pardon in modem time is not a private act of grace from an
individual happening to possess power, it is a part of the
constitutional scheme. When granted, it is the determination of the
ultimate authority that public welfare will be better served by
inflicting less than what the judgment has fixed. This constitutional
pardon is given to those, upon whom punishment inflicted would
cause greater harm to society than their release."840
Experience has shown that pardon is usually administered to persons who are
punished for disregard of political or religious affiliations. The psychological and
emotional condition of the criminal is taken into consideration before granting him
pardon841 and he is admitted to this clemency only if his institutional record shows
that there are better chances of his reformation after release. Commenting on this
point J. L. Gillin observed,
"If the pardons are administered with care and solely to correct
injustices, they certainly do not diminish respect for law. They, on
the other hand, will infuse confidence in the machinery of justice".842
838 Kuljeet Singh alias Ranga v. Union of India, AIR 1980 SC 898.
839 Kehar Singh v. Union of India, AIR 1989 SC 653.
840 Observations of Justice Holmes in Biddle v. Perevich, 71 L. Ed. 1161 (1163).
841 KM. Nanavati v. State of Maharashtra, AIR 1962 SC 605.
842 Gillin, ]. L. : Criminology & Penology (3rd Ed.) p. 308.
In K.M. Nanavati v. State of Maharashtra,843 the accused killed his wife's paramour
in 1960. The Bombay High Court sentenced him to life imprisonment. He appealed
against his sentence to the Supreme Court. Meanwhile, the Governor granted
suspension of his sentence. This power of the Governor to suspend life sentence was
challenged before the Supreme Court on the ground that under Article 161, the
Governors do not have the power to do so during pendency of the matter before the
Supreme Court. The Apex Court classified that the power of the Governor to suspend
the life sentence is subject to rules framed by the Supreme Court under Art. 145 of
the Constitution, which provides that once appeal against suspension of sentence is
filed before the Supreme Court it is mandatory to keep the accused under police
custody. The order of the Governor, therefore, is liable to be quashed. The Governor
can use his power to suspend or remit the sentence so long as it is not subjudice
before the Supreme Court. In other words, the Governor may exercise his power
under Article 161 so long as an appeal against the mercy petition is not filed before
the Supreme Court and not thereafter.
In Purulia Arms-drop case, (1995) a British national Peter Bleach was sentenced
to life imprisonment for being involved in the notorious arms-drop over Purulia in
Bihar from AN-26 aircraft. The then NDA844 government came under diplomatic
pressure and invoked "public interest", directing President of India to grant him
pardon. United Kingdom on its part, clarified that the pardon was more on
compassionate grounds than on merits.
It must be stated that the system of parole which is nothing but a modified form
of conditional pardon has mitigated the risks involved in pardoning the offender
outright. It is, however, suggested that a pardon pre-conditioned by a system of
parole appears to be an ideal policy best suited to both the law-abiders as well as the
law-breakers. It would further be wise to relieve the executive authority of this
arduous task of administering pardons and this function be assigned to the agency of
Parole Board. This has already been done in some of the American States.
In Swaran Singh v. State of U.P.I,845 the Governor of U.P. had granted remission of
the life sentence awarded to the Minister of State Legislature of Assembly upon
being convicted for the offence of murder. The Supreme Court, however, interdicted
the Governor's order and observed that it is true that it has no power to touch the
order passed by the Governor under Article 161, but if such power has been
exercised arbitrarily, mala fide or in absolute disregard of the "finer canons of
constitutionalism", such order cannot get the approval of law and in such cases the
"judicial hand must be stretched to it". The Supreme Court held that the order of the
Governor was arbitrary and hence needed to be interdicted.
In Gentela Vijayvardhanrao v. State of Andhra Pradesh} the two appellants were
dalit boys, who set afire a bus for the purpose of robbery. This resulted in the death
of 23 passengers and serious bums to a number of other passengers. Taking into
consideration the barbarity of crime, depravity in the manner of its execution, the
number of victims and greed as aggravating factors, they were sentenced to death
and the sentence was confirmed by the High Court. Even while mercy petitions were
pendings human rights groups took to campaigning against the death sentence
awarded to the two boys. Attempts were made to bring back the issue to the Supreme
Court by way of writ petitions, but without success. The President of India, however,
843 AIR 1962 SC 605.

844 National Democratic Alliance Government.
845 (1998) 4 SCC 75. See also Harbans Singh v. State of U.P., (1982) 2 SCC 108.
deemed it a fit case to grant pardon and commuted the death sentence of both the
boys to one of imprisonment for life.
It must be stated that in the absence of the requirement to give reasons for such
decision, it is difficult to know what exactly weighed with the President in
commuting the sentence. If such decisions were made public, it would help people to
know the factors which made President to commute the sentence, which would
provide guidance for future. Otherwise the exercise of power of clemency will give
rise to the reasonable apprehension that it is capable of being arbitrarily used, more
so because the President in exercise of this power acts on the advice of the Cabinet
hence the possibility of political considerations weighing with the decision cannot be
ruled out.846
This issue came up for consideration before the Supreme Court in the
Parliament attack accused Mohammad Afzal's case wherein the supporters sought
clemency on the ground that the day of Afzal's execution i.e. 20th October is falling
within the month of Ramzan. In fact, the judgment in his case was also countered on
the ground that he did not get fair trial. Significantly, Afzal's death sentence was
upheld by three courts including the Supreme Court which had let-off a co-accused
and reduced the sentence of another accused.
The near relatives and kins of the victims of the said attack on Indian
Parliament on 13th December, 2001 filed petitions opposing the move to secure
clemency for Afzal Guru.
Disposing of the petition of the widow of Presidential reprieve for Afzal the
Apex Court ruled that, "undue considerations of caste, religion and political loyalty
are prohibited from being grounds for grant of clemency.847 The Court observed that
undoubtedly, the President of India and the Governors of States have the
constitutional right to grant clemency but this power should be exercised by them in
the interests of public welfare.848
A Bench comprising Justices Arijit Pasayat and S.H. Kapadia, while quashing
Andhra Pradesh Governor's decision of 2005 to reduce Gowru Venkata's prison term
by seven years, held that it was a well set principle that a limited judicial review of
exercise of clemency powers was available to the Supreme Court and High Courts.
Specifying the grounds for granting clemency, the Bench ruled that orders passed by
the President or the Governor, as the case may be, granting clemency can be
challenged on the following grounds :—
1. that the order has been passed without application of mind;
2. that the order is mala fide;
3. that the order has been passed on extraneous or wholly irrelevant
considerations;
4. that relevant materials have been kept out of consideration; and
5. that the order suffers from arbitrariness.
In Gowru Venkata's case, his wife was elected as an M.L.A. on the Congress
ticket and two days after her election, she made a plea for parole of her husband who
846 Ibid.
847 Decided by the Supreme Court on October 12, 2006 by Hon'ble Justices Arijit
Pasayat and S.H. Kapadia.
848 The mercy petition filed by Afzal Guru before the President of india more than five years ago,
is still lying with the Central Govt, for its decision and not yet sent to the President. This has
raised severe criticism and the public would like to know the reason for this inaction on the part
of the Central Government.
was undergoing imprisonment on a murder charge. Parole was granted by the then
Reddy government five days later, i.e., on May 19, 1994. The parole period was
extended four times.
On October 10, 1994, the wife of Gowru Venkata made a representation to the
then Andhra Pradesh Governor Shri Sushil Kumar Shinde seeking pardon for her
husband. On August 11, 2005, the Governor, exercising his power under Article 161
of the Constitution, granted remission of sentence.
The Supreme Court, in setting aside the remission of sentence, favorably
viewed the submissions made by amicus curiae and former Attorney-General Shri Soli
Sorabjee, who said that it was desirable that President or a Governor, while granting
pardon or remission of sentence, should give reasons to indicate that relevant
materials were considered in the exercise of constitutional power. The Bench held
that the process of consideration by the then Governor was faulty and also expressed
its surprise that in the clemency plea, the convict had the audacity to mention that he
was a "good Congress worker" and that he has been falsely implicated in the murder
of an activist belonging to rival TDP Party. Obiviously the question of his being a
'good Congress worker' has no relevance to the objects sought to be achieved. The
Bench criticised the State bureaucracy for giving favourable reports to the Governor
to facilitate relief to the ruling party's activist.
The Supreme Court brushed aside the plea emphasising that the matter had
been heard by three courts which had unanimously come to the conclusion about
Gowru Venkata's guilt.
In separate but concurring judgments, the Bench observed, "the power of
executive clemency is not for the benefit of the convict only. While exercising such a
power the President or the Governor, as the case may be, has to keep in mind the
effect of his decision on the family of the victims, the society as a whole and the
precedent it sets for future."
The order passed in Gowru Venkata's case is seen as potentially having direct
bearing on the Afzal's case. Those who are supporting grant of pardon to Afzal,
notably, the Left Parties and different out-fits in the J. & K. Valley have argued that
Afzal's execution would give fillip to militancy.
It may be stated that more than twentynine mercy petitions are pending before
the President (as on October 16, 2010) including those filed by two accused in the
former Prime Minister, Rajiv Gandhi assassination case and a petition from 71 year
old Shobhit Chamar who had killed an upper caste adversary in Bihar.849 Earlier, the
plea of mercy filed by Dhananjoy Chatterjee was rejected by three President's in
succession and he was finally hanged to death on 14th August, 2004 in the Alipore
Central Jail.
The Amnesty International in its Report of 2009 has stated that the number of
persons who were sentenced to death in India during the period 2001 to 2007 was a
follows :
849 Besides these three mercy-appeals, petitions for pardon from four accused belonging to
Veerappan's gang for killing 21 policemen in 1993 and four Punjab terrorists accused of killing
17 people attending a wedding near Amritsar in 1991 and mercy appeal of Sushil Marru
accused of killing a five year old girl in 1995 and three Dalits from Bihar convicted for
massacring members of upper cast organisation are pending disposal before the President.
Afzal's mercy petition has not even been sent by the Central Government after he was sentenced
to death by the Supreme Court in October 2006; despite a period of more than five years has
elapsed ever since he filed the petition.
Year No. of Persons Sentenced

to death
2001 33
2002 23
2005 77
2006 40
2007 100
However, no official figures are indicated as to the actual execution of sentence
of death during this period.
The General Assembly of UN passed a resolution for abolition of death
sentence by the member nations in December 2007, but India voted against it and
refused to drop capital punishment from its statute book.
More recently, the prime accused of the Bombay Taj Hotel blast case (on 16-
11-2008), Azmal Kasab, was sentenced to death by the Special Court, Bombay on
May 6, 2010 and his death sentence has been confirmed by the Bombay High Court
on February 21, 2011. He may new prefer an appeal against this sentence before the
Supreme Court.
Scope of Judicial Review of Pardon Power
Judiciary as an organ of administration of justice is ordained with power to
ensure that individual rights are not improperly displaced by a political majority
merely for the sake of expediency. Rule of law presupposes fairness and justice
therefore, any executive action which suffers from arbitrariness and undermines
fairness, would be subject to judicial review which is one of the basic structures of
the Constitution as also the Indian democracy.
The Supreme Court in Maru Ram v. Union of India,850 clearly held that pardoning
power being a constitutional power, is not immune from judicial review, though it
may be on very limited grounds. It could be subjected to
850 AIR 1980 SC 2147.

judicial review on the following grounds :—

(1) where the order has been passed without application of mind;
(2) if the order is mala fide-,
(3) where the order is passed on extraneous or wholly irrelevant
considerations;
(4) where relevant materials have been kept out of consideration; and
(5) The order suffers from arbitrariness.
The Apex Court in Epuru Sudhakar v. State of Andhra Pradesh,851 has held that
although the President is not required to give any reason for allowing the mercy
petition, but this does not mean that there should be no legitimate or relevant reasons
for passing the order. Article 74(2) of the Constitution does not bar the scrutiny of
the material on the basis of which the President had arrived at his satisfaction to grant
pardon to the accused.852
The guiding principle for grant or non-grant of pardon is public welfare and the
welfare of the convict and Supreme Court has power of judicial review in the matter
applying these parameters.
Commutation of Sentence
Besides pardon, commutation of sentence and reprieve or respite are yet other
methods of easing the problem of prison discipline. Commutation of sentence implies
reduction in the term of imprisonment but it does not wipe out the guilt of the
accused. It is thus a substitute of a lesser punishment for a longer one. Reprieve or
respite signifies temporary postponement of the execution of sentence generally for
the purpose of further investigation into the guilt of the offender and is often used
with reference to death sentence. The principle underlying reprieve or respite is that it
enables the executive to make sure that the offender is rightly being committed
according to the law of the land.
Amnesty
In addition to the abovementioned modes of mitigating sentence, certain
categories of prisoners are also admitted to "mass-release" with a view to restoring
civil rights to them. The system of ma; s-release of prisoners is called 'amnesty'.
Thus, in United States, amnesty was granted to all federal ex-prisoners who worked
in the Armed Forces of that country atleast for a period of one year. Similar amnesty
was granted to English war-time deserters of Armed Forces in February, 1953.
"Good Time" Laws
The introduction of "good time" laws in prisons can be traced back to early
decades of nineteenth century. Under the system an inmate could earn certain
reduction in his term of sentence provided he behaved well inside the prison. Thus
the system of good time laws was introduced to ease the problem of discipline inside
prisons and make the custody, security and control within the institution more
meaningful and effective. Good time laws authorised the prison officials to cut-short
the period of sentence awarded to prisoners by law courts
851 AIR 2006 SC 3385.

852 S.R. Bommai v. Union of India, AIR 1994 SC 1918.
in fixed proportions, usually one month for every year upto a maximum period of
six months. ThisExecutive Clemency,
discretion to Good
makeTime
an Laws and Indeterminate
allowance Sentence
in the term of sentence of 495
the
prisoner lies with the Prison Board or the Parole Board provided, however, the
inmate has a good record of his conduct in prison. The system of good time laws
was adopted in France in 1846. In America, the system became so popular that by
1860 it was adopted in almost all the States. Besides the ordinary good-time laws,
there are also "merit good-time laws" which entitle the inmate to earn additional
reduction in his term of sentence by his exceptionally good behaviour dining the
institutional life. Likewise, "Industrial good-time" is allowed to an inmate who
actively participates in prison industries during his stay as a prisoner.
"Good time" Laws in India
Before reviewing the position of good time laws in India, it must be stated that
reduction of sentence under "good-time” laws is different from the commutation of
sentence. While reduction in prisoner's term of imprisonment depends on the
discretion of prison authorities, the commutation of sentence is a prerogative of the
executive Head of the State. It must also be noted that reduction in the term of
sentence under good-time laws is invariably granted to almost all inmates as a
matter of course therefore, its significance seems to have been lost in the present
penal system. Any misconduct on the part of inmate inside the prison may, however,
entail certain reduction in his good time allowance. The system of allowing
prisoners the benefit of good time allowance is prevalent in India ever since the
British rule and it has undoubtedly proved a successful measure insofar as
maintenance of discipline inside the prison is concerned. The "honour system"
which implies associating deserving inmates with the prison administration has
acted as an efficient substitute for the system of good time allowance. The
provisions relating to these curtailments in the term of prisoner's sentence are
contained in the Prison Act and Jail Manuals of the States.
It must be stated that executive clemency, good conduct laws, holiday benefits,
amnesty and other curtailments in the prisoner's sentence are directed as a part of
reformative techniques of prisonisation but its extensive use over the years has an
adverse impact on the judicial determination of the appropriate punishment for a
specific offence. With the result, there is no correlation between the Judge's sentence
and the actual period of imprisonment in jail which is generally much less than the
awarded sentence. In other words, increasing use of the discretionary powers of
prison management and correctional authorities tend to restrict the powers of the
sentencing courts.
Indeterminate Sentence
Yet another penal device which marks a radical departure from the traditional
concept of punishment is the system of indeterminate sentence. The system
originated from the west and was overwhelmingly favoured by most European
countries. The success of probation and parole as a measure of treatment reaction to
crime, has, however, overshadowed the system of indeterminate sentence which is
fast losing its significance in modem penology.
The first manifestation about the abhorrence of retribution and deterrance


and inclination for individualisation and reformation came in the shape of protest
against fixed sentences. Flexibility and elasticity in penal sentence was deemed
necessary for proper rehabilitation of inmates through treatment methods. The
reformation of prisoners could not be possible if the sentences were determinate and
the term of imprisonment fixed and definite. The system of indeterminate sentence
was therefore, regarded quite consistent with the requirements of the principle of
individualisation. Under this system the Penal Code prescribes a minimum and a
maximum sentence for a particular offence thus leaving sufficient scope for the
discretion of Prison Board to release the offender on parole if he reacted favourably
to treatment methods of the prison. Speaking about indeterminate sentence, Sanford
Bates the former Minister of Federal Prison Bureau and Commissioner of Institutions
and Agencies of New Jersey observed, "apart from the inducement to good behaviour
in prisons such as good-time laws, etc. if best results are to be obtained from the
prison sentence and the ensuing parole period, the date of release must be a flexible
one".1
Although flexibility in punishment carries with it an element of uncertainty and
a consequential increase in the potential of disparity but if the Prison Boards and
parole authorities make right use of discretion regarding the release of inmate after he
completes the minimum sentence prescribed in his case, there is no reason why the
scheme should fail. Some penologists argue that it is a misnomer to call such a
sentence as indeterminate, particularly when the minimum and the maximum limits
are set out under the law. In their opinion, it ought to be called as 'indefinite
sentence'. But it is difficult to agree with this view because the word 'indefinite'
carries with it an impression that the sentence is to continue for an inordinately
longer period which is certainly not the object of indeterminate sentence. The term
"indeterminate sentence" therefore, seems to be fitting and appropriate.
There is no denying the fact that rehabilitation is the prime object of sentencing
process particularly in case of juvenile and young offenders. The system of
indeterminate sentence first began as an agency of correctional method for young
offenders so that they could be released earlier if they responded favourably to the
rehabilitative processes during the period of custody and control in the institution.
The maximum limit of confinement in their case could be the age of attaining
majority. The pre-mature release secured under indeterminate sentence could be with
or without parole depending on the requirement of the institutional 'after-care' of the
inmate concerned. The main object of indeterminate sentence is to inculcate hope
rather than fear in the mind of inmate undergoing imprisonment. It also makes the
inmate realise that his future lies in his own hands and he could secure an early
release from the institution if he showed interest and sincerity in work and labour
allotted to him. The greatest advantage of indeterminate sentence lies in the fact that
it is aimed at correcting the inmate rather than ill-treating him.
Origin of Indeterminate Sentence
Historically, the system of indeterminate sentence is known to have originated
from Spanish prisons in 1835. The practice of lodging young offenders in work-
houses until the time they were completely reformed was, however, prevalent in
certain American States even a century earlier. Under the Spanish system, the
prisoners were organised into groups of 1000 to 1500 called a "company". One of the
prisoners was to lead the company and control and supervise the prisoners under him.
He was called the commander of the company. Thus, the system was modelled on
military pattern. Under this arrangement, good behaviour of the prisoner entitled him
1. Sanford Bates' article published in Studies in Penology (IPPF) 1964 p. 34.

to proportionate reduction in his sentence to the extent of one-third. Later, Bolivia
also adopted a similar system and established Prison Aid Societies to supervise the
released prisoners.
Dr. Marsongy, a French penologist wrote his 'Preparatory Liberation' in 1846,
which contained an elaborate discussion on topics connected with the power of
pardon, conditional liberation, ticket on leave system, aid to the discharged prisoners,
etc. In this work, he pointed out that detention of inmates in prison was rather
inhuman and at the same time an additional burden on the State exchequer. He
therefore, supported indeterminate sentence on the ground that it gave moral courage
to the offenders and offered them opportunities for proper education and discipline,
thus helping them to improve their socio-economic condition. With the introduction
of the system of probation in 1859, France succeeded in amalgamating suspended
sentence with probation.853
The Irish penal system also preferred indeterminate sentence to the determinate
one. The inmates were kept in reformatories for an indeterminate period until they
were reformed for normal life. The system was greatly ippreciated in U.S.A. and
subsequently it received statutory recognition in New fork State in 1867. Brookway
tried to mobilise public opinion in favour of ndeterminate sentence through his
learned paper entitled "The Ideals of Prison system" read before the National Prison
Association in 1870.
The Elmira Reformatory accepted indeterminate sentence as an essential part of
its correctional programme in 1869. The offenders between the age group 3f 16 to 30
years as well as the first offenders were committed to indeterminate sentence, the
term of which was finally to be decided by the Board of Managers of the
Reformatory. Relapsed criminals were also admitted to indeterminate sentence in
exceptional cases. The Board of Managers consisted of a General Superintendent
with five other members to be appointed by the Senate for a period of five years.
They were all honorary officials and received no salary for this job. It was a social
service agency associated with the Reformatory which functioned to consider the
cases of prisoners to be discharged on parole. The Reformatory provided education to
the inmates in various disciplines such as religion, morality, social culture, science,
physical education etc. The period of indeterminate sentence usually varied from 14
to 24 months. While in custody, the inmates were to be kept under supervision and
monthly report was to be submitted in each case. The report was to be attested by a
clergy or a teacher. The period of indeterminate sentence prescribed for the first
offenders varied from a minimum of one year to a maximum as fixed for particular
crime under the State law.
In 1928, Prof. E.V. Burgass in his work entitled. "The Working of the
Indeterminate sentence, Law and the Parole system in Illinois" surveyed the entire
functioning of these corrective measures and the extent to which they succeeded in
bringing about rehabilitation of offenders in the State. This was a substantial
contribution to the available criminological literature on correctional penology in
early twentieth century.854
The Congress of United States in 1958 enacted uniform laws which provided
that an inmate could be released on parole any time after he had spent at least one-
third of the maximum sentence imposed on him. This was intended to give
853 Manual Lopez Rey : Analytical Penology, an article published in Studies in Penology (1964), p.
139.
854Leon Radzinowicz : In Search of Criminology (1961 Ed.) p. 195.

expression to society's disapprobation for a given act as also to minimise the chances
of securing early release by bringing undue pressure on the Administrative Boards.
This, at the same time enabled to the Parole Board to observe the inmate and
diagonise the course of action in his case.
Indeterminate sentencing in USA came under severe attack from most quarters
in late 1960's and early 1970's because of its over-emphasis on individualised justice.
It was criticised mainly on two grounds, namely, (i) whether sentencing should be
based on rehabilitative considerations ; and (ii) procedure to determine the form and
length of sentence leaves sufficient margin for miscarriage of justice.
As to the desirability of indeterminate sentence, Dr. Sutherland observed that as a
treatment reaction to crime this mode of sentence is essentially selective in nature as
its application is restricted only to a few categories of offenders, mostly juveniles and
the first offenders. It has generally been argued that indeterminate sentence is most
unsuited in case of serious offenders and habituals or recidivists and those who are
guilty of white collar crimes. The reason being that in such cases deterrence still
remains a most significant sentencing factor. Again, like the need for laying down a
minimum statutory sentence, the need for a legal maximum sentence is justified on
the ground that in absence of such a maximum limit, the Administrative Board may
by mistake or inadvertence, keep certain prisoners confined for unduly long period
though they might otherwise be well suited for an early release. In other words, the
discretionary power of Prison Board cannot be circumscribed under the law.855 But Dr.
P. K. Sen has expressed a contrary view in this regard. In his opinion, it would suffice
to lay down only the maximum limit of sentence for a particular crime and no
minimum need be laid down.856
The Indian penal law, however, does not provide for indeterminate sentence for
the reason that similar objective is attained by resorting to certain other correctional
techniques such as probation, parole and open air camps for prisoners. In fact, the
system of parole is itself a modified form of indeterminate sentence. Moreover,
certain Indian penologists have expressed a view that adoption of the system of
indeterminate sentence would extend the scope of discretion for the magistracy which
might be detrimental to the interests of criminal justice. But it must be stated that this
apprehension is rather misleading because the Judges in India have accepted
sentencing as a part of their solemn duty towards law and discharge their obligation
in a realistic manner so as to attain the objective of social defence.
855 Surtherland and Cressey : Principles of Criminology (6th Ed.) p. 551.

856 Sen, P. K. : Penology Old and New (1943) p. 183.

Critical Appreciation of Indeterminate Sentence
Indeterminate sentence as a method of punishment has certainly delivered the
goods as it is founded on solid principle of social security. The greatest advantage of
the system is that the inmate is placed for his own salvation and he contributes to a
considerable curtailment of his own sentence by good work and effective change in
his mentality. Indeterminate sentence bears testimony to the fact that at times judicial
individualisation may fail but the administrative individualisation may work
successfully. The system seeks to adjust the treatment of the offender according to
his personal traits. From this standpoint, indeterminate sentence has been rightly
recognised as a progressive measure. It has affinity with good time laws and
indirectly prepares the offender for a better life in future. Lord Clove of the
International Penal and Penitentiary Commission, the oldest inter-govemmental
agency in the correctional field, in his address on 'Indeterminate Sentence' in London
Conference (1925) made the following observations with regard to this mode of
sentence
(i) petty offenders should not be subjected to prolonged sentence ;
(ii) determinate sentence be limited to offenders above twenty five years of
age whereas those below this age should invariably be awarded
indeterminate sentence, unless they are habitual criminals or guilty of a
serious crime ;
(iii) no minimum sentence need be prescribed but only a legal maximum limit
may be laid down ;
(iv) lastly, the Administrative Boards or the Parole Boards which are
entrusted with the arduous task of releasing the prisoners undergoing
indeterminate sentence, should include well-qualified and experienced
staff.
Merits
Though the concept of indeterminate sentence stands in direct conflict with the
principle of impartiality because the custodial sentence, corrective training and
committal to prison under the system permit sufficient discretion with the
Administrative Boards to mitigate the rigours of prison life, the method has been
treated as one of the most urgent priorities in the development of individualised
prison programmes. As a matter of fact, the system of parole cannot function without
indeterminate sentence.
The principle of the indeterminate sentence is closely connected with the
improvement in prison management. If best results are to be obtained from the prison
sentence and the ensuing parole period, the date of the release must be flexible one.
In practice, very few countries use a completely indeterminate sentence—that is
a sentence without minimum or maximum. Legislations generally prescribe a
minimum time to be served as a part of sentence and also provide protection to the
inmate against his being held in prison for an extraordinarily long time. It is
preferred to set the time of release based somewhat upon the attitude of the prisoner
and conditions of the society in which he is to be sent and the assistance, advice and
control that may likely be afforded to him.
Indeterminate sentence is further preferred to definite sentencing which creates
problems because the standards of judicial sentencing may depend on the
predilections of the Judges. Since inequalities of sentences create problems in prison,
correctional administrators have always preferred alternatives to definite sentencing.
Indeterminate sentence being one such alternative, would help in subsiding prison
unrest to a considerable extent.

Demerits
Despite the merits of the system, indeterminate sentence has been criticised on
many counts. The main objections to this system are as follows :
The first and the most potential objection so often raised against this system is
the uncertainty about the exactness of the sentence which in itself is a severe
punishment from the psychological standpoint. Most persons would certainly prefer
a longer but a definite term of sentence rather than a shorter but an uncertain period
of anxiety and agony. Moreover, prisoners with indeterminate sentence always suffer
from a feeling of injustice about their sentence in absence of any specified pre-
determined definite rules. During the term of their sentence, however short it may be,
they remain completely in dark about the exact time of their release.
Secondly, mistaken judgment of the Prison Board about the fitness of a
particular offender for release is likely to result into his stay in the prison institution
for a longer period than that actually necessary in his case.857
Thirdly, in absence of any satisfactory method to gauge with accuracy the
offender's fitness for release, it might happen that a prisoner is released prematurely
or conversely, he might be detained for an unduly longer period.
Fourthly, since the release under indeterminate sentence generally depends on
the reports of the prison wardens the prisoners who antagonise the wardens are likely
to be held in prison for a longer time due to adverse reports against them.
Conversely, those who flatter the wardens may manipulate an early release through
favourable reports.
Fifthly, indeterminate sentence produces sycophancy among the prisoners thus
making them to work for securing early release rather than to reform themselves
sincerely for a normal life.
Last but not the least, the prisoner undergoing a determinate sentence knows it
for certain that after he completes the term of his sentence he has a right to claim
release legitimately. The satisfaction of having completed the full term of sentence
assures him that his guilt has been washed off and he no longer remains a guilty
person. The element of self-satisfaction is totally missing in case of indeterminate
sentence.
Some penologists have suggested that periodical judicial review of sentence by
the courts can be an effective substitute for indeterminate sentence. This assertion is
founded on the belief that Judges are less prone to external influences than the prison
Administrative Boards. But the greatest difficulty in the judicial review of sentencing
lies in the fact that it is difficult to convince the
857 IXth International Penitentiary Congress held in London in 1925 was addressed by
Lord Clove in which he detailed out his views on indeterminate sentence (See pages
259 to 267 of the Congressional Address).
Executive Clemency, Good Time Laws and Indeterminate Sentence 501

court that earlier sentence was erroneous or excessive unless they are made to visit
the prisons periodically and contact prisoners to know the effect of sentence on
them. The views expressed by the eminent French criminologist Gabriel Tarde
deserve particular mention in this context. He observed that the existing criminal
procedure should be suitably amended so that the courts are asked merely to decide
the guilt or innocence of the accused and leave it for specially constituted committee
of experts to determine the responsibility of the accused and the punishment to be
awarded to him after taking into consideration his antecedents and mental attitude.
This is indeed a good suggestion but the fact remains that the change in procedure
would mean entrusting judicial functions to non-judicial bodies such as Parole
Boards etc. which will be derogatory to the accepted principles of penal justice.
Suspended Sentence
There is yet another method of social rehabilitation of offenders which has
assumed great importance in recent times. It is commonly called the method of
"suspended sentence". The method of suspended sentence is different from that of
indeterminate sentence. In the former, the offender is prosecuted for his guilt but he
is not institutionalised while in the latter he is sentenced for an uncertain term with at
least the minimum for that particular offence after which his release depends on the
Administrative Board's reaction to his good behaviour. Since the courts are
motivated by humanitarian consideration, they prefer to punish the offender with
suspended sentence rather than with the indeterminate one, and this has eventually
led to the evolution of system of parole, probation and other correctional methods of
It must also be stated that just as the system of parole is based on indeterminate
sentence, the system of probation is based on suspended sentence. Besides parole
and probation, there are a number of other quasi-penal institutions such as
reformatories, borstals and rescue homes which are engaged in the task of bringing
about rehabilitation of offenders in society.
More recently, there has been a growing tendency in some countries to relieve
the courts of their power and control over the punishment and treatment of offenders
and pass it on to the professional bodies or Administrative Boards. In Scandinavia
and some States of America as also in England and Scotland, the decision about the
treatment of young offender is taken out of the criminal courts and handed over
wholly to the professional experts in correctional services. Even in matters of adults,
the power of the Court to control the duration, nature and security of confinement
has been considerably curtailed and in some cases even withdrawn. With the
introduction of probation, parole and indeterminate sentence, the actual date of
release of offender is determined by those who are in charge of his custody. Thus,
the object underlying these correctional measures is to correlate sentence to
reformation of the offender and ensure protection of others rather than the old
fashioned ideas of retribution cherished by the courts.1
Indeterminate sentence has not been accepted in the Indian penal system
though it is being extensively used in the United States and some of the European
countries. In the strict sense, the sentence is 'indeterminate' when no minimum or
maximum limit is laid down by the penal law, but in actual practice the court
invariably sets out the minimum and maximum period of sentence leaving it with the
prison authorities to retain the offender in jail only for the optimum period until he is
reformed and responds favourably to rehabilitative process.
It hardly needs to be stressed that mechanical apportionment of punishment to
1. Leon Radzinowicz & Joan King : Growth of Crime (1977) p. 27.

guilt would serve no useful purpose in the modem context. The correct approach to
the problem of sentencing has been rightly expressed by James Mills in his celebrated
article in Encyclopaedia Britannica wherein he stated that "whatever punishment is to
be inflicted, it should be determined by its adaptation to crime.858 The progressive
trends in penology in form of probation, parole, indeterminate sentence etc. should
not lose sight of this fundamental principle of penal law.
Finally, it must be stated that the ultimate justification of all sentencing is the
protection of society and rehabilitation of the offender. At times, a prolonged
confinement of offender may be necessary in the interest of society's protection and
no rehabilitative technique may suit the offender in view of his anti-sodal behaviour.
In such cases, definite sentencing alone seems to be the only viable alternative. Even
in cases where there is probability of the offender responding favourably to flexible
sentencing, the problem to determine the appropriate time of release may pose real
difficulty. Therefore, theoretically the technique of indeterminate sentence may
appear to be ideal one, but the risk of arbitrary discretion of the prison authorities
involved in it, may frustate the benevolent principle underlying this mode of
sentencing.
The principle of justice demands that the like cases be treated alike. As
H. L.A. Hart rightly contended "injustice arises when equals are treated
unequally and also when unequals are treated equally."859 Disparity in sentences
defeats the object of modem correctional penology. In India, the provisions relating
to appeal, revision as well as hearing on the point of sentence under Section 235 (2)
of the Code of Criminal Procedure, 1973 are meant to mitigate the disparity in
sentences as far as possible.
In the ultimate analysis it may be stated that whatever be the mode or pattern of
sentencing, its object should be protection of society and stamping out the criminal
proclivity. In choosing the mode of sentence, the sentencing authorities should adopt
corrective machinery or the deterrence, based on factual matrix and its import on
social order. Any undue leniency in choosing any particular form of sentencing will
be resultwise counter- productive in the long run and against societal interest.860
858 James Mills : Prisons And Prison Disciplines in Enyclopaedia Britannica (6th Ed. Vol. VI), p.
387.
859Hart H.L.A. : Punishment and Responsibility (1968) p. 24.
860 Ankush Maruti Shinde v. State of Maharashtra, AIR 2009 SC 2609.
Parole
Chapter XXII
P arole has emerged as one of the most acceptable form of correctional device in
modem penology. It has been universally recognised as one of the most
appropriate methods of treatment of offenders for their reformation and rehabilitation
in the normal society after the final release. Besides, it considerably helps in reducing
over-crowding in prisons.
Commenting on need for liberalisation of parole policy K.F. Rustomji, a Member
of the National Police Commission, in one of his tour-notes described the pathetic
condition of Indian prison and observed that the personality of a man behind walls
and bars disintegrates under the strain of waiting for a decision in his case, or an
order on his premature release from jail. Over-crowding in prisons and increasing
versality of prison torture in utter disregard of the Standard Minimum Rules for the
treatment of prisoners approved by the U.N. Congress on Treatment of Offenders
held in Geneva in 1955 is a serious cause of concern for those who believe in
correctional penological philosophy. In the subsequent U.N. Congress held in
London in 1960, it was stated that it should be customary that prisoners should spend
later part of their sentence on parole or in open institution where they can live with
their families.
)
One of the appropriate method for prisoners to be able to enter community and
participate in constructive work is to place them in open prison or release them on
parole. Of these two, a parole is perhaps more effective and popular.
Though open prisons have been found to be useful for the rehabilitation of the
incarcerated prisoners but in view of its limited scope, the system of parole has
proved to be a better substitute for easing the burden of prisons and reducing over-
crowding of prisoners.
The release of prisoners on parole is therefore, one of the most important but at
the same time, controversial devices for reducing pressure on prison institutions. It is
commonly believed that a prisoner who is released from a prison institution is a
danger to society. Ex-prisoners are generally feared, shunned, discriminated and
exploited and therefore, they are compelled to go wicked rather than being assisted to
lead an upright life.
A prisoner may be released after he has completed his full term of sentence. He
is then a free person without any restraint against repeating crime. He may feel that
he has paid off his debt to society and therefore, is ready to have another offence
debitted to his account. Some corrective methods have been devised to bring about
the rehabilitation of inmates so that they can adjust themselves to free society after
their final release from the prison institution. Parole is one such device which seeks
to protect society and assist the

ex-prisoner in re-adjusting himself to a normal free-life in the community.
Thus, it has a dual purpose, namely, protecting the society and at the same time
bringing about the rehabilitation of the offender.
The Concept of Parole
Historically, parole is a concept known to military law and denotes release of a
prisoner of war on promise to return. These days parole has become an integral part
of the Anglo-American criminal justice system, inter-twined with evolution of
changing attitudes of the society towards crime and criminals.
Definition of Parole
As defined by J. L. Gillin, "parole is the release from a penal or reformative
institution, of an offender who remains under the control of correctional authorities,
in an attempt to find out whether he is fit to live in the free society without
supervision.861 It is the last stage of correctional scheme of which probation may
probably be the first. The life in a prison is so rigid and restrictive that it hardly offers
any opportunity for the offender to rehabilitate himself. It is therefore necessary that
in suitable cases the inmates should be released under proper supervision from the
prison institution after serving a part of their sentence. This may serve a useful
purpose for their rehabilitation in the society. This object is accomplished by the
system of parole which aims at restoring the inmate to society as a normal law
abiding citizen.
Another criminologist, Donald Taft characterises parole as a release method
which retains some control over prisoners, yet permits them more normal social
relationships in the community and provides constructive aid at the time they most
need it. According to him, "parole" is a release from prison after part of the sentence
has been served, the prisoner still remaining in custody and under stated conditions
until discharged and liable to return to the institution for violation of any of these
conditions.862
The ultimate significance of parole lies in the fact that it enables the prisoner a
free social life yet retaining some effective control over him. Every prisoner is
carefully watched and one who shows potentiality for correction and responds
favourably to the disciplined life inside the prison, is allowed considerable liberty
and finally released to join the society conditionally. Thus, parole is essentially an
individualised method of treatment of offenders and envisages a final stage of
adjustment of the incarcerated prisoner to the community.
Dr. Sutherland considers parole as the liberation of an inmate from prison or a
correctional institution on condition that his original penalty shall revive if those
conditions of liberation are violated.863 The conditional release from prison under
parole may begin anytime after the inmate has completed at least one-third of the
total term of his sentence but before his final discharge. The object is to adjudge the
adjustability of responsive inmates to normal society by offering them suitable
opportunity to associate themselves with outside world.
As a result of the introduction of parole into penal system, all fixed term
sentences of imprisonment above 18 months are subject to release on licence. Parole
is taken as an act of grace and not as a matter of right and the convict prisoner may
be released on condition that he abides by the promise. It is a provisional release
from confinement but is deemed to be a part of the imprisonment. Release on parole
861 Gillin J.L. : Criminology and Penology (3rd Ed.), p. 339.

862 Taft & England : Criminology (4th Ed.) p. 485.
863 Sutherland & Cressey : Principles of Criminology (6th Ed.), p. 575.
Parole 505
is a part of the reformative process and is expected to provide opportunity for the
prisoner to transform himself into useful citizen.
The Supreme Court in Smt. Poonam Lata v. Wadhawan & others,864 has clarfied
that parole is thus a grant of partial liberty or lessening of restrictions to a convict
prisoner, but release on parole does not, in any way, change the status of the
prisoner.
Sir Robert Cross has observed that parole is the release of a long term prisoner
from a penal or correctional institution after he has served a part of his sentence
under the continuous custody of the State and under conditions that permit his
incarceration in the event of misbehaviour.865
In some countries like Britain, prisoners are released from prisons on parole
and licence and kept under supervision until the term of imprisonment expires.
During this period, the released prisoner has to abide by the rules and regulations
prescribed under the law. It is high time when such a system with necessary
legislation should be introduced in India as a part of after-care programme for the
rehabilitation of released offenders.
Parole and Indeterminate Sentence—Distinguished
Parole is closely linked with the system of indeterminate sentence under which
instead of being compelled to serve a definite term of sentence, the offender is
sentenced to a minimum and a maximum period of sentence and after he has finished
the minimum term, usually one-third of the maximum prescribed, he is set at liberty
with or without conditions. It therefore, follows that the system of parole cannot
function successfully without having indeterminate sentence. This does not,
however, mean that these two systems are identical. Indeterminate sentence carries
with it an element of uncertainty about the exact period of sentence which in itself is
a great punishment to the offender ; while on the other hand, the system of parole
serves a kind of pre-intimation to the parolee that he is nearing his final discharge.
Again, in case of indeterminate sentence no specific period of sentence is ever laid
down whereas the convicted prisoner who is released on parole is always initially
committed to a definite term of sentence and while undergoing the punishment, if he
is considered fit for release on parole, he is so released for the remaining portion of
his sentence as a parolee.
It is significant to note that grant of parole is a quasi-judicial function
performed by the Parole-Board. Before allowing a prisoner to be released on parole,
the Parole Board has to ensure that the parolee has a suitable abode to live in and a
satisfactory job to do. The Parole Officer has also to undertake a pre-parole
orientation programme for the prisoner and make sure that he is well prepared to
adjust himself to normal life and at the same time the conditions
864 AIR 1987 SC 1383.

865 Sir Robert Cross : The English Sentencing System, pp. 31-34.
Parole and Probation Compared

506 Although parole, like probation is based
Criminology on the principle of individualisation of
and Penology
treatment of offenders and both include a programme of guidance and assistance to
the delinquents,
outside yet thearetwo
the institution differ intomany
conducive aspects. Theof fundamental
the development points
his personality. 1 of
difference between parole and probation are noted below :—
(i) As to their historical evolution, the system of probation owes its
origin to John Augustus of Boston (U.S.A.) who around 1841, tried to
convince the Judge of the Magistrate's Court that certain offenders
would respond well to his supervision if committed to his care rather
than jailed. The parole, on the other hand, came into existence much
later somewhere around 1900.
(ii) A prisoner can be released on parole only after he has already served a
part of his sentence in a prison or a similar institution. Thus, it
essentially involves an initial committal of offender to a certain period
of imprisonment and a conditional release subsequently after serving a
part of the sentence. But in case of probation, no sentence is imposed, or
if imposed, it is not executed. This, in other words, means that probation
is merely the suspension of sentence and is granted as a substitute for
punishment whereas parole is granted to a prisoner when he has already
lived in prison or a similar institution for a certain minimum period and
has shown propensity for good behaviour.
(iii) As rightly pointed out by Dr. Sutherland, a probationer is considered as if
undergoing "treatment" while he is under the threat of being punished if
he violates the conditions of probation ; but a parolee is considered to be
in "custody" undergoing both punishment and treatment while under threat
of more severe punishment, i.e., return to the institution from which he
has been released.
(iv) Another notable distinction between probation and parole is that former
is a judicial function while the latter is essentially quasi-judicial in
nature. Probation implies a procedure under which a person found guilty
of an offence is released by the court without imprisonment subject to
conditions imposed by the court and subject to supervision of the
probation staff. In case of parole, a prisoner is released from prison to
the community prior to the expiration of his term of sentence subject to
conditions imposed by the Parole Board. Thus, the release of a parolee is
not the result of a judicial decision.
(v) It has been alluded by J. L. Gillin that probation is probably the first
stage of correctional scheme, the parole being the last stage of it.
(vi) Probation and parole also differ from each other from the point of view
of stigma or disqualification attached therewith. There is no stigma or
disqualification attached to an offender who is released on probation of
good conduct,866 but a prisoner released on parole suffers stigmatisation
as a convicted criminal in the society.
Parole Distinguished from Furlough
Undoubtedly, parole and furlough are parts of the penal and prison system for
humanising prison administration but the two have different purposes. Furlough is a
matter of right but parole is not. Furlough is to be granted to the prisoner periodically
irrespective of any particular reason merely to enable him to retain family and social
ties and avoid ill-effects of continuous prison life. The period of furlough is treated
866 Section 12, Probation of Offenders Act, 1958.

1. Sen P. K. : Penology Old and New (1943) p, 182.
Parole 507
as remission of sentence. Parole, on the other hand, is not a matter of right and may
be denied to a prisoner even when he makes out sufficient case for release on parole
if the competent authority is satisfied on valid grounds that release of a prisoner on
parole would be against the interest of society or the prison administration. Thus, it
could not be contended that a prisoner released on parole and surrendering later, is
disqualified for furlough. His application for release on furlough has to be considered
on merits and cannot be rejected at the threshold.867
Referring to the provisions of Section 59 of the Prisons Act (9 of 1894) and
Rules 4 and 6 of the Prison (Bombay Furlough and Parole) Rules, 1959, the Supreme
Court once again brought out the distinction between furlough and parole in State of
Maharashtra and another v. Suresh Pandurang Darvekar.868 The Court in this case held
that underlying object of the rules relating to 'parole' and 'furlough' are mentioned in
the All India Jail Committee's Report and the Model Prison Manual. These two have
two different purposes. It is not necessary to state reasons while releasing the
prisoner on furlough but in case of parole, reasons have to be indicated. Again,
release on furlough cannot be said to be an absolute right of the prisoner. It is
allowed periodically under the rules irrespective of any particular reason merely with
a view to enabling the prisoner to have family association and keep up family and
social ties and avoid ill-effect of continuous prison life. It is treated as a period spent
in prison. But as against this, the period spent on parole is not counted as remission
of sentence. Since the furlough is granted for no particular reason, it can be denied in
the interest of society, whereas parole is to be granted only on sufficient cause being
shown.
In the instant case, the accused person had allegedly committed rape on his
step-mother and was convicted for offences punishable under sections 376 and 354
of IPC and was sentenced to seven years with fine. Despite objections to the release
of offender on furlough by the District Magistrate and Superintendent of Police, on
the ground that he was likely to disturb peace and tranquillity, he was ordered to be
released on furlough on furnishing surety of amount lying in deposit with jail
authorities. The State appealed against the order of the High Court. The Supreme
Court held that since Rule 4(4) of the Bombay Prisoners Furlough Rules provided
that furlough can be granted only when recommended by DM/SP and Rule 6 made it
mandatory that unless the prisoner has a relative willing to receive him while on
furlough and enters into
867 Bhikhabhai Devshi v. State of Gujarat, AIR 1987 Guj. 136.

868 AIR 2006 SC 247.
Parole 507
869
on probation of good conduct, but a prisoner released on parole
suffers stigmatisation as a convicted criminal in the society.
Parole Distinguished from Furlough
Undoubtedly, parole and furlough are parts of the penal and prison system for
humanising prison administration but the two have different purposes. Furlough is a
matter of right but parole is not. Furlough is to be granted to the prisoner periodically
irrespective of any particular reason merely to enable him to retain family and social
ties and avoid ill-effects of continuous prison life. The period of furlough is treated
as remission of sentence. Parole, on the other hand, is not a matter of right and may
be denied to a prisoner even when he makes out sufficient case for release on parole
if the competent authority is satisfied on valid grounds that release of a prisoner on
parole would be against the interest of society or the prison administration. Thus, it
could not be contended that a prisoner released on parole and surrendering later, is
disqualified for furlough. His application for release on furlough has to be considered
on merits and cannot be rejected at the threshold.870
Referring to the provisions of Section 59 of the Prisons Act (9 of 1894) and
Rules 4 and 6 of the Prison (Bombay Furlough and Parole) Rules, 1959, the Supreme
Court once again brought out the distinction between furlough and parole in State of
Maharashtra and another v. Suresh Pandurang Darvekar.871 The Court in this case held
that underlying object of the rules relating to 'parole' and 'furlough' are mentioned in
the All India Jail Committee's Report and the Model Prison Manual. These two have
two different purposes. It is not necessary to state reasons while releasing the
prisoner on furlough but in case of parole, reasons have to be indicated. Again,
release on furlough cannot be said to be an absolute right of the prisoner. It is
allowed periodically under the rules irrespective of any particular reason merely with
a view to enabling the prisoner to have family association and keep up family and
social ties and avoid ill-effect of continuous prison life. It is treated as a period spent
in prison. But as against this, the period spent on parole is not counted as remission
of sentence. Since the furlough is granted for no particular reason, it can be denied in
the interest of society, whereas parole is to be granted only on sufficient cause being
shown.
In the instant case, the accused person had allegedly committed rape on his
step-mother and was convicted for offences punishable under sections 376 and 354
of IPC and was sentenced to seven years with fine. Despite objections to the release
of offender on furlough by the District Magistrate and Superintendent of Police, on
tue ground that he was likely to disturb peace and tranquillity, he was ordered to be
released on furlough on furnishing surety of amount lying in deposit with jail
authorities. The State appealed against the order of the High Court. The Supreme
Court held that since Rule 4(4) of the Bombay Prisoners Furlough Rules provided
that furlough can be granted only when recommended by DM/SP and Rule 6 made it
mandatory that unless the prisoner has a relative willing to receive him while on
furlough and enters into a surety bond, he shall not be granted furlough. As the sister
refused to enter into a surety bond, his release on furlough was illegal and State
Government's appeal was allowed.
Origin of Parole in U.S.A.
The origin of parole in United States of America can be traced back to the
869 Section 12, Probation of Offenders Act, 1958.

870 Bhikhabhai Devshi v. State of Gujarat, AIR 1987 Guj. 136.
871 AIR 2006 SC 247.
871 Barnes and Teeters : New Horizons in Criminology (3rd Edn.) p. 423.

earlier system of indenturing prisoners which meant removal of prisoners and
handing them over to the employers for work and supervision on condition of being
returned back to prison if they did not behave properly.1 Soon after, few State
officials were associated with prisons for supervising and guiding the prisoners in
their rehabilitation. By the end of eighteenth century, many Prison Aid Societies
were formed to assist and help the ex-convicts in their rehabilitation in the society.
By 1840's similar functions were assumed by the Federal States. Experience,
however, showed that the commutation of the period of good-time allowance should
only entitle a prisoner his release from the institution and not from the custody and
supervision. This idea gained momentum through successful working of the system
of parole in England. The Elmira Reformatory in New York State was the first to
adopt the system of parole in 1869. This system was subsequently adopted by other
States in America.872 The main objectives of parole today are rehabilitation of the
offender and at the same time protection of society from his anti-social acts. The
United States Board of Parole Research unit is engaged in working out standard rules
for parole to be applicable throughout the United States. With the passing of the
Parole Reforms Act, 1977, a uniform system of parole has been implemented
throughout the country so as to do away with inequalities of sentencing and its evil
effects on prisoners.
The Educative Reformative Scheme in Hungary
The successful working of the system of parole as a corrective measure in
America and Middle-West, inspired socialist countries to adopt similar measures for
their prisoners. Experience with the system was very encouraging because it
produced excellent results in the correctional field so far rehabilitation of offenders
was concerned. Particularly, Russia and Hungary found the system most workable
and effective.
The preponderance of socio-economic conditions as the sole cause of crime has
furnished fertile grounds for the effectiveness of reformative scheme in Hungary.
The Hungarian jurists have evolved a system called "Educative Reformatory Work"
as a punitive reaction to crime. The scheme corresponds to many institutional
systems which undertake to reform the offenders. The Educative Reformatory Act,
1950 was passed by the Hungarian Parliament for individualised treatment of
inmates. Under the system, the investigations are made by social agencies but the
ultimate decision whether the offender should be put to educative reformatory work,
rests with the Judge. Thus, the system envisages a peculiar combination of
administrative and judicial functions.
Under the Educative Reformatory Scheme, the prisoner is set free on parole and
the period of parole ranges from a minimum of one month to a maximum of two
years depending on the propensity of the prisoner. During this period, the inmate is
assigned specified compulsory work for which he is paid diminished wages. Thus he
no longer remains a burden on the State and seeks to rehabilitate himself at his own
cost. The system, however, does not work successfully if the period of inmate's
sentence exceeds five years.
The ultimate object of the scheme of educative reformatory work under parole
is to provide for the prisoner's socio-economic needs which contributed to his
delinquent conduct. This does not, however, mean that these countries consider law
merely as an instrument of satisfaction of human wants. They rather interpret law as
a pre-condition for social defence, meaning thereby that the society itself is nothing
872 The Prisoners Rehabilitation Act in U.S.A. authorises furlough, a system of work release,
which allows an inmate to participate in unsupervised employment in the community while
residing in the institution during his leisure hours.
Parole 509
but a creation of law and each individual is contributing a part of his liberty by
subjecting himself to social control.
The British Parole System
The failure of the British system of penal transportation and its unsatisfactory
consequences led to the origin of parole in England. The abolition of the system of
transportation of prisoners as a penal servitude resulted into overcrowding of British
prisons. Consequently, a new method known as 'Ticket on Leave' was introduced in
the later decades of eighteenth century as a measure for reducing the prison
population. Unfortunately, the system did not yield good results because prisoners
were discharged from prisons merely on surety for good behaviour without being
prepared and trained for a disciplined life in the community. In absence of adequate
after-care, these discharged prisoners often developed recidivistic tendencies thus
rendering public life more insecure and unsafe. Therefore, it became necessary to
introduce radical changes in the method of release under the system of 'Ticket on
Leave' and this finally led to the evolution of modem system of conditional release
on parole towards the first quarter of the nineteenth century.
The British penal system admits the following categories of persons for parole
:—
(a) Those who are convicted for serious offences for which sentence
exceeds three years. The parolees in such cases are to report to the
police every month during the period of parole.
(b) Those who are habitual offenders and sentenced under the preventive
detention laws.
(c) Juvenile delinquents who are institutionalised in borstals,
reformatories and rehabilitation centres.
The utilisation of British convicts as labour in Australian farms was first started
on an experimental basis. This generated a feeling that prisoners could be paroled out
for a useful purpose rather than being confined in closed prison cells. But the
conditional release granted to prisoners under parole necessarily implied their return
to the prison if they acted in derogation of good behaviour. The efficiency of parole
essentially lay in two fundamental considerations, namely,—
(i) there must be disposition of good behaviour on the part of the prisoner ;
and
(ii) conditional release tinder parole was in fact a reward for good behaviour
in prison.
The release of prisoners on parole has now been accepted as a part of the
rehabilitative programme in Britain. It affords an opportunity to the convicted
prisoner to prove that he can return to community as a law abiding citizen if trusted
and allowed to forget that he is an ex-convict.
The task of rehabilitation which was once left wholly to the voluntary
organisations and agencies has now become a State responsibility. The Report of the
Advisory Council on Penal System in England in 1973 recommended that the State
should assume responsibility for the after-care of every inmate imprisoned by it.
The parole practices in United Kingdom have been criticised on three major
grounds. Firstly, it is alleged that the system of parole does not work well because too
many inmates enter from front door and leave through the backdoor unreformed and
bent on new criminal activity. Secondly, indeterminate sentence leaves every one in
the dark regarding the inmates' release. No one knows how long a person shall be in
the prison. Thirdly, Parole decision-making policy is not explicit. In other words,
Boards and Commissions responsible to release operate in secret according to tacit
policies unknown and unknowledgeable to public and the offender. This contributes
to cynicism.873
Parole, as a technique of correctional measure has been criticised by /. Edgar
Hoover, the former British Director of FBI on the ground that mal-administration in
making proper selection of prisoners and then pursuing their cases with vigour and
proper attention frustrates the nobel objective underlying the scheme and ill-advised
clemency granted to incorrigible convicts by way of release on parole does more
harm than good to the community.
Parole In India
In India, prison reforms did not emerge out of the social movement but were
necessarily an outcome of the worst conditions of treatment faced by the political
sufferers in prisons during the period of their imprisonment. They repeatedly
launched protests with the prison authorities and made all possible efforts to see that
the rigours of prison life are mitigated and prisoners are humanely treated. In the
meantime, the reformative trend which was gaining momentum in the field of
penology all around the world also gave filip to the cause of correctional method of
treatment of offenders in India. It was realised that confining convicts in closed
prison cells hardly serves any useful purpose. The overall effect of these changes
brought about significant reforms in prison administration in India during the later
half of the twentieth century. But there has always been a lack of planned penal
programme in this country. To take a concrete example, the system of probation is in
practice in India for the past more than fifty years, but it has always progressed in a
haphazard manner without clear cut idea as to its ultimate goal. It is well known that
probation implies supervision and control of probation officer over the probationers
but today this task is entrusted to the Social Welfare Boards. This obviously throws a
challenge to the legality of probation system insofar as entrusting the judicial
functions to a non-judicial body like Welfare Board is concerned. However, it is not
so with parole which is fully in conformity with the existing Indian penal laws.
It must be accepted that post-Independence era in India brought in its wake a
growing realisation of the need of change in attitude towards the treatment of
offenders. With advanced knowledge of human behaviour, the role of psycho-social
environment in the correctional field cannot be under-estimated. The institutions such
as parole and open air camps occupy a significant place in the correctional treatment
of offenders inasmuch as they are directed towards narrowing down the gap between
the prison life and the free life of the outside world.
Structural set up of Parole Boards and their Functions
The Parole Board consists of parole administrators who are from among the
respectable members of society. Since the police is looked with bias and distrust in
India and elsewhere, the police opinion about an inmate is not considered to be valid
ground for allowing a particular offender on parole. The members of Parole Board
are assigned the function of discharging convicted prisoners on parole after careful
scrutiny. Thus, the Parole Board takes administrative decision on paroling out
prisoners and while acting as such, they are performing a quasi-judicial function.
Another important function assigned to the parole personnel is to prepare a case
history of parolees and help and advise them in the process of their rehabilitation.
Besides Parole Board, there is also a set of field workers functioning outside the
prisons. These field personnel keep a close supervision over parolees and report the
cases of parole violations to the parole authorities.
873 Martin L. Forst : Sentencing Reform in Reducing Disparity (Lon. 1982) p. 91.
873 Taft and England : Criminology (4th Ed.) pp. 504-5.
Parole 511
Thus the parole organisation, by and large, consists of three agencies, namely,
the Parole Board, the Case Investigators and the Parole Supervisors ; all of them
work in close liaison with each other.
In United States, the task of granting parole is handled by the expert
psychologists and psychiatrists who subject a prisoner to a psychological test to
determine his suitability for being paroled out. No such method, however, exists in
India and the prospective parolee is given a simple hearing in prison itself to assess
his feasibility for discharge on parole. The Indian law provides for parole only in
cases of serious offenders who are committed to long term sentences. It has now
generally been accepted that if at all the prisoners are to be released prior to their
final discharge, they must be released on parole so that they could be kept under
proper supervision and guidance.
Conditions of Parole
It must be reiterated that the purpose of parole is not leniency towards the
prisoner but to seek his rehabilitation in future life. Like probation and other forms of
clemency, parole is a rehabilitative phase of law enforcement. The system essentially
involves two considerations, namely :
(i) watchful control over parolee so that he could be returned to prison
institution from which he vyas paroled out if the interest of public
security so demanded ; and
(ii) constructive help and advice to parolee by securing him suitable
work so as to develop self-confidence in him and finally to guard him
against exploitation.
The success or failure of parole generally depends on the following factors1 :
(1) It has generally been accepted that the offenders committed for crime
against person are more suited for parole than those committing crime
relating to property. The latter, often resort to recidivism and do not
respond favourably to the conditions of release on parole.
(2) Family circumstances of the offender have much to do with the success
or failure of parole. The noted criminologist, Donald Taft rightly contends
that prisoners with domestic liabilities and family responsibilities are
"good-risks" as compared to those who are bachelors or without family
liabilities.
(3) Recent methodical researches on parole clearly demonstrate that
recidivists often derogate from parole conditions and have to be brought
back to prison sooner or later. The first offenders, on the other hand, are
usually good parolees and readily adjust themselves to the conditions of
normal society.
(4) Social status of the offender also has a direct bearing on the parole
success. It is generally observed that offenders who belong to higher
socio-economic strata or those who have a better educational
background, respond favourably to the system of parole. The obvious
reason for this is that such persons are generally committed to prison for
an act which they might have committed due to sudden impulse or
emotional disturbance for which they are usually repentant.
(5) At times, certain parolees prefer to waive off their clemency of being
paroled out if their final discharge from prison or similar institution is
not far off or if they feel that their release on parole under the
supervision of parole staff is indirectly an expression of distrust for
them.
(6) As a matter of policy, parole should be administered only to those

prisoners who display an inclination for good behaviour and show
respect for law and justice. The adaptability of prisoners can be assessed
through a method of careful diagnosis by trained and qualified parole
staff.
Modem penologists have suggested that correctional agencies administering
parole must make use of prediction procedure to study the effectiveness of its decisions
relating to parolees. Present day management training course stresses that mere
experimentation is not enough but social agencies should get closer to their clients to
understand the whole personality of the inmates.874 These agencies have to perform
the twin functions of keeping case-records and making decisions. The two activities
are performed by different personnel whom Duglus Grant875 calls information
collectors and decision-makers. There is lack of proper coordination between the two
functionaries. This does not, however, mean that the Parole Board is totally
unconcerned about these facts but rather no adequate means of bringing the two
together have yet been devised.876
Judicial Trend
The courts in India have generally favoured the view that the prisoners who
have been incarcerated or kept in prison without trial for a long time, should be
released on parole to maintain unity of family. It may be useful to refer to some of the
decisions to support this contention.
The need to paroling out long-term prisoners periodically for reasonable spells,
subject to sufficient safeguards ensuring their proper behaviour outside and prompt
return inside, was highlighted by the Supreme Court in Hiralal Mallick v. State of
Bihar.877 In this case the appellant was found guilty of the offence under Section 326
(causing grievous hurt) of the Indian Penal Code and sentenced to eight years'
imprisonment. He was only 12 years of age at the time of commission of the offence.
The High Court reduced the sentence to four years keeping in view the tender age of
the accused. The Supreme Court directed release of the appellant on parole for
reasonable spells so that his family ties are not snapped for long being insulated from
the world and he does not become beastial and dehumanised. The Apex Court,
however, noted that granting of parole for reasonable spells is subject to sufficient
safeguards ensuring prisoner's proper behaviour outside the prison and prompt return
inside on completion of parole term.
The Supreme Court, in Dharamvir v. State of Uttar Pradesh* was once again called
upon to consider the desirability of release of long-term prisoners on parole at regular
intervals so that they are not totally cut-off from the society. In the instant case, the
appellant was found guilty of murder and convicted for imprisonment for life. There
being no scope for reduction of period of sentence, the Apex Court found parole
desirable in such cases. It therefore, issued directions to the State Government and the
jail authorities that such prisoners be allowed to go on parole for two weeks once in a
year throughout the period of imprisonment, provided they behaved well while on
parole.
The Apex Court, in Suresh Chandra v. State of Gujarat,878 pointed out the
874 Dressier David : Readings in Criminology And Penology, (1964) p. 599.

875 Former Chief of the Research Division of the California Department of Correctional
Services.
876 Mannheim & Wilkins : Prediction Methods in relation to Borstal Training London,
His Majesty's Statutory Commission.
877 AIR 1977 SC 2236.
878 (1976) 1 SCC 654.
Parole 513
importance of the penological innovation in the shape of parole to check recidivism.

It recommended liberal use of parole as a viable alternative for reducing
overcrowding in prisons.
In Krishanlal v. State of Delhi,879 the Supreme Court refused to accept economic
necessity as a relevant factor for reducing the period of imprisonment for the offence
of forgery. The Court, however, agreed that the accused could be
879 (1976) 1 SCC 655.

1 AIR 1975 SC 606 (608).

In Babulal Das v. State of West Bengal,1 Mr. Justice Krishna Iyer of the Supreme
Court (as he then was) struck a discordant note in adopting the observation made by
the Calcutta High Court and observed :
"It is fair that persons kept incarcerated and embittered without trial
should be given some chance to reform themselves by reasonable
recourse to parole power under Section 15 of the Maintenance of
Internal Security Act, 1971."
In Samir Chatterjee v. State of West Bengal,880 the Supreme Court set aside the
order of the Calcutta High Court releasing on parole a person detained under Section
3 (1) of MISA and disfavoured the observation that long term preventive detention
can be self-defeating and criminally counter-productive.
In Smt. Poonam Lata v. Wadhawan and others,881 where a person detained under
COFEPOSA Act of 1974 was released under an order of the Supreme Court on
parole, it was held that the period of parole has to be excluded in reckoning the period
of detention. In the instant case, the detenu was engaged in receiving smuggled goods
from across the Indo-Nepal border and was making payments in foreign currency and
remitting the sale proceeds of such smuggled goods out of country in shape of U.S.
dollars with the help of others. The counsel for the detenu Shri Jethmalani had
contended that preventive detention was not a sentence by way of punishment and
therefore, the concept of serving out the sentence which pertains to punitive
jurisprudence, cannot be imported within the realm of preventive detention.
This decision (i.e., Smt. Poonam Lata's case) has, however, been overruled by the
Supreme Court by its judgment in Sunil Fulchand Shah v. Union of India & other* which
decided that parole may be granted by way of temporary release as contemplated by
Section 12(1) or 12(1A) of the Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) where detenu has approached the
Government for securing release on parole. The grant of parole to such detenus under
COFEPOSA Act is an administrative decision to be taken by the Government or its
functionaries and the courts cannot, generally speaking, exercise the power to grant
temporary parole because of the bar of judicial intervention under Section 12(6) of
the COFEPOSA. This bar, however, does not affect the jurisdiction of High Court
under Article 226 or of Supreme Court under Arts. 32, 136, 142 of the Constitution of
India. The Supreme Court further ruled in this case that the period of detention under
Section 10 of COFEPOSA has to be computed from the date of actual detention and
not from the date of order of detention. This in other words, means that an order
made under Section 12 of the temporary release of a detenu on parole does not bring
the detention to an end for any period and does not interrupt the period of detention.
It only changes the mode of detention by restraining the movement of the detenu in
accordance with the conditions prescribed in the order of parole. In short, the period
of parole has to be counted towards total period of detention unless rules prescribe
otherwise.
In Gurdeep Bagga v. Delhi Administration,882 a petition by life convict for parole on
the plea of illness of mother was rejected by the High Court on the ground that the
petitioner was earlier continuously on parole for more than two years and he had two
elder sisters to look after the ailing mother. The Supreme Court, however, took a
lenient view and recommended annual leave for life convict to maintain unity of
family.
880AIR 1975 SC 1165.

881 AIR 1987 SC 1383. (Now overruled by decision in Sunil Shah v. Union of India.)
882 1987 Cr. LJ 1419 (SC).
Parole 515
In Veerumchanni Raghvendra Rao V. State of Andhra Pradesh,883 the Supreme Court

ruled that release on parole and suspension of sentence during pendency of appeal in
Supreme Court is liable to be struck down being ultra vires the statutory powers of
State Government. The Andhra Pradesh Parole Rules, 1981 (Rule 23), and Andhra
Pradesh Prison Rules, 1979 [Rule 974 (2)] were struck down in this , case being
inconsistent with Section 432(5) read with Section 389 of the Code of Criminal
Procedure, 1973.
In its landmark decision in Kesar Singh Guleria v. State of Himachal Pradesh,3 the
Supreme Court observed that for exercising the power, function and duty to
temporarily release the prisoners on parole, the paramount consideration which the
releasing authority shall bear in mind is that the right to be released is not defeated
merely because the prisoner on account of his impecunious condition is unable to
offer a security bond or surety bond. The discretion to waive the requirement of
furnishing bond should be exercised in cases of poor prisoners bearing in mind other
relevant considerations of family-ties, roots in community and social conditions etc.
In a criminal appeal884 decided by the High Court of Punjab & Haryana on 15th
November, 1994, the question in issue was about the release of a Army Prisoner on
Parole. It was held that when an Army personnel is convicted by a Court Martial and
undergoing sentence in civil jail and is dismissed from service as a result of this
sentence, or ceased to be subject to the Army Act, 1950, it would be erroneous on the
part of the Army authorities to think that the prisoner having been handed over to
civil (police and jail) authorities, they (i.e., military authorities) had no authority to
release him on parole. The High Court ruled that despite the fact that the prisoner has
otherwise ceased to be subject to Army Act, he could be still kept, removed,
imprisoned and punished by the Army authorities as if he continued to be subject to
Sections 179 and 123-B of the Army Act. The Court therefore, issued a direction to
Army Authorities to release the petitioner on parole for a period of four weeks to the
satisfaction of the District Magistrate, Chandigarh. In this case, the Jail authorities
had declined to release the prisoner on parole on the ground that he had been
convicted by the Court Martial and therefore, civil authorities had no jurisdiction to
release him.
The Supreme Court in its decision in Ramamurthy v. State of Karnataka,885 has
observed that overcrowding in prisons can .be considerably reduced by release of
prisoners on parole, which is a conditional release of an individual from prison after
he has served part of the sentence imposed upon him.
Recommending liberal use of parole, the Court referred to the Report of All India
Committee on jail reforms headed by Justice A. N. Mulla (1980-83) wherein the
Committee stated that the effect of parole is premature release which is an accepted
mode of incentive to a prisoner, as it saves him from the extra period of incarceration
and at the same time also helps in his reformation and rehabilitation.
In the case of State of Haryana v. Hasmat,1 the accused (respondent) along with
some others was found guilty of offences punishable under sections 302, 307, 148
read with section 149 IPC and was sentenced to undergo imprisonment for life.
During the pendency of his appeal he was in jail and was allowed the benefit of
release on parole three times and had not misused liberties during parole period. On
this ground he contended that he should be given the benefit of suspension of
sentence during pendency of his appeal and be released on bail. Rejecting the plea of
883 1985 Cr. LJ 1009 (SC).

884AIR 2000 SC 1023.
885 (1997) 2 SCC 642 (655).
885 AIR 2004 SC 3936.
the respondent (accused), the Supreme Court observed :—

"Section 389 of Cr.P.C deals with suspension of execution of sentence (in
this case life imprisonment) pending the appeal and release of the appellant on
bail. There is a distinction between bail and suspension of sentence. One of the
essential ingredients of section 389 Cr.P.C. is the requirement for the Court to
record reasons in writing for ordering suspension of the sentence or order
appealed. If he is in confinement, the said Court can direct that he be released
on bail or on his own bond. This clearly indicates that an order directing
suspension of sentence during appeal and grant of bail should not be passed as
a mater of routine."
In this case, the High Court had granted bail primarily on the ground that after
conviction, the respondent (accused) had been granted parole on three occasions and
there was no allegation of any misuse of liberty during the period of parole. But the
Supreme Court set aside the order of the High Court on the ground that in case of
offence like murder, the Court should consider the relevant factors like the manner in
which the offence was committed and its gravity etc. and then consider whether after
being convicted for the offence will it be desirable to order his release on bail. The
High Court had not considered this aspect at all. The Court further referred to its
earlier rulings in Vijay Kumar v. Narendra & others} and Ramji Prasad v. Rattan Kumar
Jaiswal and another,886 wherein it was held that in cases involving conviction under
section 302, IPC suspension of sentence and bail should be granted only in very
exceptional cases.
The question for decision before the Supreme Court in the case of State of
Madhya Pradesh v. Kusum* related to entertaining applications of prisoners whose
appeals for bail etc. were pending or those whose bail applications had been rejected
and they had moved the High Court in appeal against such rejection. In the instant
case, the respondent, a woman accused was convicted for an offence of murder
punishable under Section 302, IPC and was sentenced to rigorous imprisonment for
life. She had filed an application for release under the Madhya Pradesh Prisoners'
Release on Probation Act, 19541 and the rules framed thereunder in 1964 (Rule 2 in
this case). The circular dated 3-8-2005 issued by Inspector General of Prisons stated
that prisoners whose appeals are pending before the Appellate Court are not entitled
to be considered for the purpose of release on probation. The respondent's prayer was
therefore, rejected by the Probation Board on 8-8-2005 with the approval of the State
Government. In appeal, the High Court of Madhya Pradesh upheld the decision of
the State Government and maintained the legality of the circular issued by the
Inspector General Prisons.
In appeal against the judgment of the High Court, the Supreme Court referred to
its earlier ruling in the case of Arvind Yadav v. Ramesh Kumar and others,887 and held
that, "the convicts have no indefeasible right to be released. The Probation888 Board
and the State Government are required to take into consideration the relevant factors
before deciding or declining the release and the facts of individual case are to be
taken into consideration for deciding the issue of release." In Arvind Yadav's case the
accused Ramesh Kumar was accused in 14 cases filed under various sections of IPC
and the manner of committing murder was gruesome and brutal and therefore, he was
rightly denied release on probation.3 The rules provide for a detailed procedure for
consideration of application for release of prisoners on probation.3 Once rejected, an
886AIR 2000 SC 3564.

887 AIR 2003 SCW 2550.
888 Infact, it should be Parole Board and not the Probation Board.
Parole 517
application for release can be filed again after two years. The Board consists of Home
Secretary of the State, I.G. Prisons or Deputy I.G. and another member. Therefore,
there was no infirmity in the rejection of respondent's application for release in the
instant case and appeal was dismissed.
Parole Violation
The release of a prisoner on parole though meant for his own rehabilitation, may
not necessarily always be a success. At times, the parolee may deviate from the
conditions on which he was released. This results into parole violation and he is liable
to be returned to the prison or the institution from which he was parolled out. At first,
a warrant of arrest is issued and served to the parole-violator and he is finally arrested
and brought back to the prison or the institution by the parole authorities without the
necessity of a fresh trial in his case. He is then given a 'parole-violation hearing' and
offered every opportunity to defend his case in person or through a counsel. If he is
unable to justify his conduct, he is made to undergo the unexpired term of his
sentence. If he has violated parole conditions by committing another crime, then in
that case, he shall be tried for the new offence and sentenced accordingly. But he
shall not be committed to parole second time, i.e., while undergoing a term of
sentence for his subsequent offence.
In India, the Prisons Act (IX of 1894) expressly provides that if any prisoner
fails without sufficient cause to observe any of the conditions on which his sentence
was suspended or remitted or furlough or release on parole was granted to him, he
shall be deemed to have committed a prison offence under Section 48-A of the Act.
Such parolees shall be proceeded against under the appropriate law for parole-
violation.
The American correctional system, however, provides for the return of parolees
to the institution even without the parole law having been violated. This is intended
either to enable the parolee to complete his industrial or technical training which he
had to leave incomplete because of his discharge on parole or to offer him an
opportunity to pick up new trade or a job or to complete the course of medical
treatment and for similar other reasons. The practice of voluntary return of parolee to
the institution for any of the aforesaid reasons is unknown to the Indian law of
parole.
Essentials of an Ideal Parole System
It must be emphatically stated that reformation of the parolee through
surveillance and assistance is the foremost object of parole. But neither supervision
nor assistance alone can make the system effective. The system must therefore,
inevitably include a combination of the two for its successful implementation.1
Excessive supervision over parolees without proper guidance would virtually mean
that the parole authorities are performing the police functions of keeping a close
watch on the prisoner under threat of punishment taking it for granted that the later
would definitely repeat the crime if not kept under surveillance. Conversely,
assistance to parolees without proper supervision will also yield poor results. It is
erroneous to think that parolees can reform themselves merely by affording them
"easy freedom". It is a part of parole officer's duty to ensure that the parolee makes
the best use of the opportunities placed before him after his release from prison.
While handling parolees, priority should be on the protection of society against
crimes rather than undue leniency towards the parolees. The essential requisites of an
ideal parole system may briefly be summarised as follows :—
(1) Emphasis must be on supervision as well as guidance and assistance to
parolees so as to make the system useful to the society in general and the
parolees in particular.
(2) Before release on parole, the parolees must be thoroughly prepared for
parole administration. This task can be assigned to Classification
Committees functioning under the parole system.
(3) The criterion governing selection of prisoners for grant of release on
parole should not be the particular category to which the offender
belongs nor the length of his sentence, but his suitability to respond
favourably to the rehabitative processes and the fact that his social re-
adjustment is more likely to be achieved by allowing him the benefit of
parole than by treatment under detention in prison.
(4) The parolees must be assured an honourable employment and favourable
surroundings at the time of their release on parole. This will inculcate
hope, confidence and social responsibility in them. It would also help
them in overcoming their inferiority complex for being ex-convicts.
______ (5) Since the parolees have to be rehabilitated within the society
1. Sutherland & Cressey : Principles of Criminology (6th Ed.) p. 586.
through various social agencies, it is desirable that the parole authorities
should seek active co-operation of the public in this task.
(6) Parole Boards should be completely free from political pressures and only
persons of proven ability and integrity should be inducted in these
Boards. They should be well qualified full-time officials.
(7) The staff associated with parole agency should also be whole-time
workers. Experience alone should not be the criterion for selecting field
officials but well qualified and trained personnel should be recruited for
this job.
The Object of Parole
As already stated, parole is a penal device which seeks to humanise prison
justice. It enables the prisoner to return to the outside world on certain conditions.
The main objectives of parole technique as stated in the Model Prison Manual are :—
(1) to enable the inmate to maintain continuity with his family life and
deal with family matters ;
(2) to save the inmate from the evil effects of continuous prison life ;
(3) to enable the inmate to retain self-confidence and active interest in
life.889
The Jail Reforms Committee (1983) recommended that besides the system of
parole, there should also be the system of release of prisoners on furlough under
which well behaved prisoners of certain categories should, as a matter of right, have
a spell of freedom occasionally after they undergo a specified period of
imprisonment, so that they may maintain contact with their near relatives and friends
and may not feel uprooted from society. The furlough period should count towards
the prisoner's sentence.
It must be stated that the system of parole aims at meeting the ends of justice
in two ways. Firstly, it serves as an effective punishment by itself inasmuch as the
parolee is deterred from repeating crime due to threat of his return to prison or a
similar institution if he violates parole conditions ; and secondly, it serves as an
efficient measure of safety and treatment reaction to crime by affording a series of
opportunities to the parolee to prepare himself for an upright life in society.
It is generally argued that the efficiency of parole administration is seriously
889 Bhikhabhai Devs hi v. State of Gujarat, AIR 1987 Guj. 136.

Parole 519
jeopardised due to undue political and executive pressures being brought on the
Parole Boards. In result, many undeserving prisoners procure their release on parole
and thus the object of the system is completely defeated. It is to be noted that these
undesirable influences find their way through the parole administration only because
of the quasi-judicial nature of the Parole Board. A definite judicial policy is
therefore, much needed in matters of parole. But again, if the functions of parole are
entrusted to the judicial machinery, it might create new problems because the courts
are likely to take shifting stands on the question of fitness of the inmates for release
on parole due to lack of proper psychological insight into human behaviour.
Moreover, parole being a treatment reaction to crime, it will be grossly unjust to
confine the system strictly within the frame of legal limits. This will eliminate the
chances of reasoned discretion which shall be derogatory to the interests of justice.
Therefore, as a workable alternative, it would be expedient that the executive
functions performed by the Parole Board should be subject to judicial review. This,
in other words, would mean that the Parole Board should assess the suitability of
prisoners for release on parole and provide guidance to the judges in taking final
decision in the matter. This would certainly help in making parole a real success in
reducing the strain on the prisons and at the same time provide adequate after-care
for the released prisoners. The primary goal should be to make the entire system
more equitable. This can be achieved by enhancing the rule of law within the judicial
and prosecutorial rank.890
It must be reiterated that a great majority of persons sentenced to imprisonment
want to return to society as law-abiding citizens and only a few are anti-social and
have no intention of changing their lawless attitude after their discharge from prison.
Therefore prisons do not serve the purpose of training and rehabilitation of all
categories of offenders, particularly those who are long-termers or hardened
criminals. Further, it is also realised that mere treatment in prison or a similar
institution does not help in the ultimate rehabilitation of offenders. The stigma which
the society attaches to the released inmates, makes it difficult for them to return to
community in spite of their sincere desire to live honestly. An ex-convict finds
himself handicapped and stigmatised. Undoubtedly, release of prison inmate on
parole may help him in solving his sodo-psychological problems and make his social
rehabilitation possible without much difficulty. It may, therefore, be concluded that
parole as a part of the after-care programme, serves a very useful purpose for the
resocialisation of convicted prisoners, making them lesser risks for the society. It is
not only more favourable to the social readjustment of the prisoners but at the same
time, is also more conducive to their mental and physical health, since it affords them
an opportunity to live a free and normal life. Paroling of prisoners also relieves the
State of its burden of expenditure on prisons to a considerable extent.
890 Martin L Forst : Sentencing Reform : Experiments In Reducing Disparity, p. 96.

Chapter XXIII
Probation of Offenders
T he problem of easing pressure on prisons has been engaging the attention of

penologist throughout the globe. Undoubtedly, 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 modem times.
The age old custodial measure and institutional incarceration presents two
crucial problems, namely, it increases the dependence of offender and at the same
time decreases his capacity to readjust to normal society after release. Conformity
with the strict prison discipline is no guarantee that the prisoner has really
transformed into a law abiding citizen.891 Other inevitable consequences that flow
from prisonisation of offender are loss of job, separation from family and
contamination due to association with other professional delinquents.892 On the other
hand, reformative treatment measures in the form of guidance and supervision have
proved effective in meeting the needs of delinquents for their rehabilitation in the
community. Probation of offenders has been widely accepted as one of the non-
institutional methods of dealing with corrigible offenders, particularly the young
offenders and the first offenders. 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. With the help of advanced techniques of social case-work, the
probation officer endeavours to bring about the desired change in offender's attitude
to life and his social relationship with the community.
Concept and Definition of Probation
The release of offenders on probation is a treatment device prescribed by the
court for persons convicted of offences against the law, during which the probationer
lives in the community and regulates his own life under conditions imposed by the
court or other constituted authority, and is subject to supervision by a probation
officer.893
The term 'probation' is derived from the latin word 'probare' which means 'to
test' or 'to prove' Etimologically, probation means 'I prove my worth'. Homer
S. Cunnings observed, "Probation is a matter of discipline and treatment. If
probationers are carefully chosen and supervision work is performed with care
and caution, it can work miracles in the field of rehabilitation.
Don M. Gottfriedson observed that "probation is a procedure by which a
convicted person is released by the Court without imprisonment subject to conditions
imposed by the Court. Thus probation is part of the decision-making process of
Judges at the time of sentencing". The object of probation, as of all methods of
treatment, is the ultimate rehabilitation of the offender in the community.
Donald Taft has defined probation as the postponement of final judgment or
sentence in a criminal case, giving the offender an opportunity to improve his
891 Jyotsna Shah : Studies in Criminology & Probation Services in India (1973) p. X.
892 Nigel Walker : Sentencing in a Rational Society, p. 101.
893 Probation and Related Measures (New York) United Nations, Department of Social
Affairs, (1951) p. 287.
Probation of Offenders 521
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. In case of
juvenile probationers, non-criminal procedure is adopted and it is less formal. Thus,
the system of probation involves restrictions on the liberty of probationer and refrains
him from disapproved behaviour, or conversely, compels him to perform certain
required acts which may be irksome or even painful to him.894 The basic purpose is to
keep the delinquent away from evil consequences of incarceration and offer him an
opportunity to lead socially useful life without violating the law.
The philosophy underlying probation is based on the assumption that most
persons who become criminals do so because of their environment and special
circumstances and that in suitable cases it is possible to change the conditions which
led to a person's fall from proper standards and reclaim him as a sound normal
citizen.
Probation is a treatment reaction to law-breaking and an attempt to mitigate the
rigours of the offender rather than making him suffer incarceration in the prison
institution.
Some penologists have defined probation as a method of dealing with specially
selected offenders and consists of conditional suspension of punishment while the
offender is placed under personal supervision and is given individualised treatment.
Probation is often misconceived by some people as an easy let-off or a form of
leniency and not a punishment. But this notion is rather misleading. Probation,
whether it is for juveniles or adults, permits a more normal social experience than
institutionalisation and makes possible varying degrees of control over delinquents
together with the option of sentencing him to an institution if he violates probation
conditions. In other words, probation enables the delinquent to maintain contact with
his family and other social agencies. It means a less routinised and more self-directed
existence. Unlike imprisonment, it makes the offender independent and leaves him
responsible for self-support. It enables the probationer to keep himself away from
criminogenic atmosphere of prison and earn his living rather than leading an idle and
wasteful life. He does not remain a burden on his family or society because he can
earn his living himself. In short, probation offers an opportunity for the probationer to
adjust himself to normal society rather than leading an isolated and dull life in the
prison.
Probation is a Conditional Suspension of Sentence
Probation is a conditional release of an offender under supervision. As a
corrective measure, supervision can be used in two ways, namely, before or after the
custodial sentence. If it is applied to an offender before custodial sentence, it is
known as 'probation' but if it is applied to an offender who has just been released
from a custodial sentence, then it is known as 'parole'. Undoubtedly, probation is an
embodiment of a progressive criminal policy based on individualisation of treatment.
It is rather a selective measure depending on the discretion of the court. The actual
selection for release on probation depends on the careful investigation of personal
case-history and social circumstances of the offender. The investigation is done by a
Probation Officer who prepares a pre-sentence report895 to be filed before the trial
court prior to the final disposal of the case.
The system of probation involves conditional suspension of punishment. An
offender may be released on probation either after the sentence is passed in his case
or without passing of a sentence. In the former case, the sentence is suspended and
delinquent is placed under probation while in the latter, he is put under probation
894 Taft and England : Criminology (4th Ed.) p. 375.

895 Section 7 of the Probation of Offenders Act, 1958.
straightway without any sentence being passed on him. Thus, the suspension of
sentence may refer either to the suspension of the execution of sentence in the former
case or suspension of imposition of sentence in the latter case, depending upon the
discretion of the court.
From the constitutional standpoint, "probation is a status of a convicted
offender during the period of suspension of his sentence in which he is given liberty
conditioned on good behaviour and the State helps him in such an instance of good
behaviour". This is rather a guiding policy in implementing probation.
The offender may be released on probation after the suspension of his sentence
on following two considerations, namely,—
(i) his case may be considered as really hopeful when judicial leniency is
expedient;
(ii) probation may be intended to serve a positive role as a method of
guidance, assistance and supervision of the probationer so that he may
rehabilitate himself for the normal law-abiding life. The suspension of
probationer's sentence is conditioned by his good behaviour during the
period of probation and therefore, it acts as a sufficient deterrent for the
offender and serves as a punitive reaction to crime. In other words, the
system of probation serves to bridge the gap between punishment and
measures of safety, that is, the moral responsibility and the social
defence, and thus it seeks to combine the punitive and the treatment
reaction to crime.
Without under-rating the merits of the system, it must be conceded that from
the legal standpoint it is difficult to conceive of a system in which judicial powers
can be fettered without taking the risk of value considerations.
According to Howard Jones, the following conditions must be fulfilled before
allowing the benefit of release on probations to an accused person :—
(1) No punishment should be imposed initially ;
(2) The offender should be given a definite period to redeem himself ;
(3) During this period, delinquent should be placed under supervision of a
probation officer for two obvious reasons :—
(i) in order to keep the court informed about his progress ; and
(ii) to help him to make the best use of the opportunity given to
him.
(4) If the offender responds favourably, his initial crime should be deemed to
have been scrapped, but if he fails to do so, he may be brought back to
court and sentenced for the original crime as also for any other crime
which he might have committed.
It is thus evident that probation is not a "let-off" as alleged by some critics
because the probationer must either respond favourably to reformation or suffer
imprisonment later. The original offence remains punishable throughout the period of
probation and the offender is liable to be punished in case he violates the conditions
of the probation order. Again, probation is also not a compulsive measure as it rests
on voluntary acceptance of conditions by the probationer. It largely depends on the
willing co-operation of the probationer to refrain from violating probation law and
abide by the terms of probation order.
Object of Probation
The Supreme Court spelt out the object of the Probation of Offenders Act, 1958
in the following words :
"The purpose of the Act is to stop conversion of youthful offenders into
stubborn criminals as a result of their association with hardened criminals of
mature age in case of youthful offenders are sentenced to undergo

imprisonment in jail. Modern criminal jurisprudence recognises that no one is
bom criminal and that a good many crimes are the result of socio-economic
milieu. Although not much can be done for hardened criminals, yet a
considerable emphasis has been laid on bringing about reform of young
offenders not guilty of very serious offences by preventing their association
with hardened criminals. The Act gives statutory recognition to the above
objective."896
The ultimate purpose of this progressive legislation is to reclaim back those
young and first offenders to orderly society, who have for certain reasons fallen into
bad company or gone astray and landed into criminality. The Act is not meant for
hardened and habitual offenders who are beyond redemption and are incorrigible.
Probation and Suspended Sentence—Distinguished
Although probation to some extent has its historical roots in suspended sentence
and both of them are closely linked with court procedure but the two materially differ
in many aspects. All suspended sentences are not probation. The probation must carry
with it some degree of supervision which is not necessary in case of suspended
sentence. As regards the suspended sentence, Judges are restricted by statute in
invoking it. In some cases, imposition of sentence is suspended while in others its
execution is suspended. As to the desirability of one of these forms over the other,
general view is that out of the two, the suspension of imposition of sentence is
preferable. This is because of the fact that in this case, there is lesser stigma attached
on the offender. Commenting on the suspended sentence, Barnes and Teeters observed
that suspended sentence is vestige of the era of retributive justice and should either be
abolished or reinterpreted in the light of the newer philosophy of probation. In their
view, when certain jurists began to place restrictions on the quasi-freedom of the
recipients of the suspended sentence, the rudiments of probation began to emerge.897
Distinguishing probation from suspended sentence, Sir Leon Radzinowicz
observed that probation is far more ambitious and adaptable idea than discharge or
suspended sentence. Under probation, the court prescribes no sentence but instead,
requires the offender to be under supervision of a probation officer and maintain
contact with him for a prescribed period. In England, this period may vary from one
to three years and in parts of United States, it may be upto five years. The probationer
becomes liable to sentence for original crime only when he fails to keep the
requirements or commits another offence. Probation is essentially selective, designed
only for those who have better prospects to reform.898
Origin of the Probation System
The history of probation can be traced back to the medieval concept of 'benefit
of clergy' surviving in England and America until the middle of the nineteenth
century. The privilege of 'benefit of clergy' permitted clergy and other literates to
escape the severity of the criminal law.899 It meant suspension of the execution of
sentence for sometime which could gradually be extended to suspension of sentence
for an indefinite period as long as the delinquent behaved well.
896 Ramji Missar v. State of Bihar, AIR 1963 SC 1088; Ram Naresh Pandey v. State of M.P., (1974) 3
SCC 30; Jagdev Singh v. State of Punjab, AIR 1973 SC 2427; Musa Khan v. State of Maharashtra,
1976 Cri. L.J. 1987 (SC) etc.
897 Barnes & Teeters : New Horizons in Criminology (3rd Ed.), Chapter on Probation.
898 Radzinowicz Leon : The Growth of Crime, p. 308.
899 F. W. Grinel—"The Common Law History of Probation" Journal of Criminal Law,
Vol, XXXII (No. 1), May-June 1941, p. 15.
Probation in U.S.A.
It is generally said that great ideas often have modest beginning. This is true
with the origin of probation as well. In America John Augustus, a shoe-maker of
Boston in 1841 volunteered to stand bail for a person charged with drunkenness in a
local court. The defendant showed signs of reform. The Judge ordered a nominal fine
and released the offender. Fascinated by this incident, John Augustus started standing
bail for more and more offenders and took upon himself the duty of helping and
supervising them during the period of bail. Subsequently, he helped delinquent
women and children also in their rehabilitation. Thus, he saved over two thousand
persons from the rigours of prisonisation. It is from here that the system of probation
began.
John Augustus, was, however, cautious in selecting offenders to be accepted
under his charge. He picked up only those delinquents and accepted them as
apprentices who were not totally depraved but showed signs of reformation. He
arranged to send them to school and provided them with some honest employment
and lodging. He maintained an up-to-date record of all the cases he had handled. This
provided a blue-print for modem probation system. Later, Father Cook of Boston also
took keen interest in the rehabilitation of young offenders. He drew attention of the
courts to the fact that these offenders were mostly the victims of their circumstances
and were corrigible if placed under proper supervision and guidance. He associated
himself with the criminal courts of Boston to advise the Judges in matters of juvenile
trials.
Probation law was formally enacted in Massachusetts State for the first time in
1878 and probation officers were appointed for the city of Boston. The probation
programme was subsequently extended to other cities in the State of America. In
course of time, juvenile courts were established and the system of probation was
extended to these courts also. By the middle of the twentieth century probation
became so popular that it began to be extensively used in cases of adults, juveniles
and women in most parts of the United States.
Expressing his views about the expansion of probation system, Donald Taft
observed that other States were rather slow to follow the Massachussett's example.
Illinois adopted the system of probation in 1899. Thereafter, other States followed
the suit and by the year 1956, all States accepted probation for rehabilitation of their
delinquents. Under the American probation law, the benefit of release on probation
extends to following offences :—
(i) crimes of violence ;
(ii) crimes involving use of deadly weapons ;
(iii) sexual offences ;
(iv) crimes against the Government or treason ;
(v) offences for which specific mandatory punishment is provided ; and
(vi) recidivists.
In some of the American States probation is being extensively i ;ed for all
offenders excepting the recidivists who are excluded from being admitted to the
benefit of probation law. The jurisdiction of Federal Courts as regards admitting the
offenders to the benefit of probation is, however, narrowed down by several statutes
passed during the preceding decades.
Probation in U.K.
In U.K., the system of probation received statutory recognition in 1907 with the
enactment of Probation of Offenders Act in that year. At Birmingham, however, a
separate court for the trial of teenage criminals was established earlier in 1905. The
Probation of Offenders Act, 1907 provided that an offender could be discharged on
probation either after certain sentence being imposed on him or even before the
imposition of the sentence. His release on probation could either be absolute or
conditional, depending on his antecedents, character, age, physical and mental
condition and the circumstances which prompted him to commit the offence.
Probation Officers were separately appointed for adults and children.900 The Act was
amended in 1908 and again in 1914. With the enactment of the Criminal Justice Act
1948, probation was extended throughout
England901 as a measure of correctional method of treatment. The entire country is
divided into a number of probation areas for this purpose each having a fixed number
of probation officers to help and advise the courts. Although probation for women
was introduced in England at a much later stage than for adult males, but it has
yielded wonderful results so far rehabilitation of female offenders is concerned.
The Brooklyn Plan which recommended deferred prosecution for delinquents
provided that a juvenile offender charged with an offence is to be admitted to
probation without being convicted.
Probation of offenders has been considered as an effective method of easing
pressure on prisons. The Courts are provided with an improved range of non-
custodial alternatives to avoid unnecessary incarceration of offenders.
The English Criminal Justice Act, 1982, however, suggested reorganisation of
Probation Committees for the purpose of redressing the situation created by House of
Lord's decision in Cullen v. Rogers.2 The opinion of House of Lords902 that there was
no power to include in a probation order a requirement that the probationer should
attend a day-centre caused considerable alarm. There are at present hundreds of such
centres operating in Britain. The system of probation, supervision and conditional
release on licence is now practised as an effective after-care programme for treatment
and rehabilitation of offenders in United Kingdom.
In deciding whether an accused should be allowed or denied the benefit of
release on probation, the English courts are generally guided by policy
considerations. This contention finds support in the decision in Pickett v. Fesq903
wherein an elderly woman of small means pleaded guilty of a charge of having
attempted to take out of the country £ 85 sterling knowing it well that she could take
only £ 5 sterling under the Exchange Control Act, 1947. She pleaded that the money
had to be taken to Italy where her son was without any work and was in great
financial distress. She was released on probation but in appeal it was held that
respondent's offence being a deliberate one, should not have been taken lightly by the
trial court. The case was therefore, remitted to trial court with a direction that the
probation order be withdrawn and respondent should be punished for the offence
which related to country's economy.
Probation in European Countries
Probation as a measure of treatment of delinquents is practised in several other
countries of the world in different forms. It is being extensively used as an effective
900 Section 3 of the English Probation of Offenders Act, 1907.

901 Section 56 (a) of this Act enables the British Prison Commissioner to apply a system of release
on licence to persons who were below 18 years of age at the time of commencement of the
sentence.
902 The judicial powers of the House of Lords are now vested in the Supreme Court in England
wherein the Twelve Law Lords conduct the judicial proceedings sitting as the highest judicial
court (w.e.f. 01-10-2009).
903 (1949) 2 All ER 705.
after-care remedy for the treatment of juvenile offenders. In France, Germany and
Russia, probation has been adopted as a measure of social defence. In Austria,
probational remedies are mandatory for offenders under eighteen years of age.
Greece accepted probation as a correctional measure in 1951. Similar system is
adopted in Ireland, Israel, Italy, Switzerland, Netherland, and other countries of the
European Union.
Probation in Sweden
Sweden is internationally known for its progressive penal philosophy and
initiative in the correctional field. Only twenty per cent of the total number of
offenders are sent to prison while the remaining 80 per cent are subjected to
correctional treatment method such as probation, parole, half-way houses, work
centres etc. Even the cases of those who are sent to prison are constantly reviewed so
that they can be transferred to non-institutional service as soon as possible. The
supervision of offenders under probation is entrusted to the "Commission of Trust"
consisting of volunteers who seek advice from probation officer. Efforts are also
being made to intensify treatment and supervisory services through probation in non-
institutional sector.
Probation System in Japan
Progressive treatment system for offenders has found statutory recognition in
the administration of criminal justice in Japan. The Japanese Code of Criminal
Procedure, 1922 expressly stipulated the discretionary power of the public
prosecutors in matters of suspension of prosecution and execution of sentence. The
offenders, particularly tine juvenile delinquents, are placed under probationary
supervision.
The system of granting probationary supervision to those who are granted
suspension of the execution of sentence was fully introduced in Japan in 1955.
Almost twenty per cent offenders are allowed probation under supervision while
eighty per cent are given probation without supervision. There is a network of
probation supervision officers to look after the probationers.
Probation in India
In India, probation is used as an institutional method of treatment which is a
necessary appendage of the concept of crime. The western view disfavours the use of
institutional methods in a legal system because it is likely to create problems. In their
opinion, probation service should be exclusively administered by voluntary
organisations and welfare boards comprising sociologists, psychologists,
psychiatrists, etc. and the Judges should not be associated in the functioning of these
agencies. The objective of the institutional treatment through probation is to correct
the effects of the causative factors of criminality in the controlled atmosphere of
probationary supervision, utilising the helpful factors in the offender's personality, his
family situation, attitude etc. This approach helps the probationer to restructure his
life-pattern with renewed vigour and adjust himself in the community through healthy
inter-personal relationships.
The Indian probation law provides that judicial power should be solely vested
in the judiciary. The reason being that if the power of probation is delegated to extra-
judicial agencies which lack judicial techniques, it would create serious problems as
these agencies will be guided by their own value considerations. That apart,
sociologists and psychologists would be concerned only with the problem of
offender's reformation and would not be able to appreciate the legal implications of
reformative measures. Thus, entrusting probation service to social agencies will mean
delegating judicial functions to non-judicial bodies which is against the accepted

norms of justice. Even assuming that probation is highly skilled technique which
needs to be handled by specialised agencies, the fact that it is subject to judicial
review under Art. 226 of the Constitution of India, would make it obligatory for the
Judges to finally take it up for judicial scrutiny.
All correctional measures in the field of penology essentially involve
individualised diagnostic formulation of each delinquent which will determine the
nature of the control and treatment plan for him. This, in other words, equates an
offender to a patient who needs to be cured rather than punished. Probation as a
correctional measure undoubtedly lays greater emphasis on treatment methods. But
from the legal standpoint it is not the question of putting the delinquent in a hospital,
instead it is rather the question of initiating judicial investigation and surveillance in
offender's case under a definite legal procedure. The procedure established under
judicial system requires that once a person is held guilty, the sentencing process in
his case must begin forthwith.
Historical Perspective of Probation Law in India
In India, probation received statutory recognition for the first time in 1898
through Section 562 of the Code of Criminal Procedure, 1898904. Under the provision
of this section, the first offender convicted of theft, dishonest mis-appropriation or
any other offence under the Indian Penal Code punishable with not more than two
years imprisonment could be released on probation of good conduct at the discretion
of the Court.905 Later, the Children Act, 1908, also empowered the court to release
certain offenders on probation of good conduct. Similar provisions existed in the
Children Act, 1960 which were repealed consequent to passing of the Juvenile
Justice Act, 1986. This Act was further substituted by the Juvenile Justice (Care &
Protection of Children) Act, 2000.
The Central Government appointed a committee in 1916 to consider the
provision of the Criminal Procedure Code. Particularly, it suggested revision of
Section 562 and extension of its provisions to other cases also.
The scope of probation law was extended further by the legislation906 in 1923.
Consequent to Indian Jail Reforms Committee's Report (1919-20), the first offenders
were to be treated more liberally and could even be released unconditionally after
admonition. The first offenders were classified under two categories, namely :—
,\
(i) male adult offenders over twenty-one years of age ; and
(ii) young male adult offenders under twenty-one years of age and female
offenders of any age.
The release of offenders on probation could be extended not only to offences
under the Indian Penal Code but also to offences falling under spedal enactments. To
cope up with the extended probation, a number of Remand Homes, Rescue Homes,
Certified Schools and Industrial Schools were
established in Bombay, Madras and Calcutta.907
The Government of India in 1931, prepared a draft of Probation of Offenders
Bill and circulated it to the then Provincial Governments for their views. However,
the Bill could not be proceeded further due to pre-occupation of the Provincial
904 Now Section 360 of the Code of Criminal Procedure, 1973.

905 As many as 156 offences came within the ambit of probation law under the
provisions of that section.
906 Section 157 of the Amending Act No. XVIII of 1923.
907 Sen P. K. Penology : Old and New (1943), p. 169.
Governments.908 Later, the Government of India in 1934, informed the local

governments that there were no prospects of a central legislation being enacted on
probation and they were free to enact suitable laws on the lines of the draft Bill.
Consequently some of the Provinces enacted probation laws909 which assumed
considerable importance because they introduced for the first time provisions
regarding pre-sentence enquiry report of probation officer, supervision by paid and
voluntary probation officer and compensation for injury caused to a person by the
offender's delinquent act. The probation laws enacted by Provinces, however, lacked
uniformity.
After the Indian independence, certain concrete steps were initiated to
popularise probation as a correctional measure of treatment of offenders. A Probation
Conference was held in Bombay in 1952 on the advice of Dr. Walter Reckless, the
United Nations Technical Expert on Correctional Services. This Conference was a
milestone in the progress of probation law in India. The noted American
criminologist, Dr. Walter Reckless addressed the Conference as a U.N. technical expert
and gave valuable suggestions on Prison Administration in India. Consequently, All
India Jail Manual Committee was formed to review the working of Indian jails and
suggest measures for reform in the system. The Committee in its Report910 of 1957
pointed out that there was no liaison between the government, the probation
personnel, the police, and the prison administrators in implementation of the
probation law. The Committee also highlighted the need for a central law on
probation with greater emphasis on release of offenders on probation of good conduct
so that they are reclaimed as self-reliant members of society without being subjected
to deleterious effects of prison life.
Legislative History of Probation law in India
Consequent to the Report of the Jail Manual Committee (1957-59) the
Government of India decided to have a comprehensive legislation on probation of
offenders. To accomplish this objective, a Bill on probation was introduced in Lok
Sabha on November 11, 1957. The motion for consideration of the Bill was moved in
the House911 by late Shri B.N. Datar on November 14, 1957. The Bill was referred to
a Joint Select Committee of the Houses headed by Sardar Hukum Singh as chairman.
The Joint Committee held seven sittings in all. The first sitting was held on
December 18, 1957 while the last sitting was held on February 19, 1958. The
Bill was handed over by the Joint Committee to the Lok Sabha on February 25, 1958
which passed it and it became an Act after Presidential assent on May 16, 1958.
The Probation of Offenders Act, 1958
The Probation of Offenders Act912 (Act No. 28 of 1958) contains elaborate
provisions relating to probation of offenders, which are made applicable throughout
the country. The Act provides four different modes of dealing with youthful and
other offenders in lieu of sentence, subject to certain conditions. These include :—
(1) release after admonition913;
908Kulkami R. A. : Probation of Offenders in India, (1971) p. 5.

909 The C. P. & Berar : Probation of Offenders Act, 1936 ; The Madras Probation of Offenders
Act, 1937 : The Bombay Probation of Offenders Act, 1938 ; The United Provinces First
Offenders Probation Act, 1938 ; The Mysore Probation of Offenders Act, 1943 ; The Hyderabad
Probation of Offenders Act, 1953 and the West Bengal Offenders (Release on Admonition and
Probation) Act, 1954.
910 All India Jail Manual Committee Report (1957) Para 135.
" Pariiampntorv Debates dated 14 November. 1957.
912 For the text of the Act, See Appendix V.
913 Section 3.
(2) release on entering a bond on probation of good conduct914 with or

without supervision, and on payment by the offender the compensation
and costs to the victim if so ordered, the courts being empowered to vary
the conditions of the bond and to sentence and impose a fine if he failed
to observe the conditions of the bond ;
(3) persons under twenty-one years of age are not to be sentenced to
imprisonment unless the court calls for a report from the probation
officer or records reasons to the contrary in writing ;915 and
(4) the person released on probation does not suffer a disqualification
attached to a conviction under any other law.916
It must be stated that the provisions of the Probation of Offenders Act are not
confined to juveniles alone, but extend to adults also. Again, provisions of the Act
are not only confined to offences committed under the Indian Penal Code but they
extend to offences under other special laws such as the Prevention of Corruption Act,
1947 ; the Prevention of Food Adulteration Act, 1954 ; the Customs Act, 1962 ; the
Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities
Act, 1980 ; the Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act, 1974, Narcotic Drugs & Psychotrophic Substances Act, 1985 etc.
Section 11 of the Probation of Offenders Act, 1958 widens the scope of
probation by adding an enabling provision regarding the competence of the Courts to
make order under the Act in appeal and revision and powers of the appellate and
revisional courts in this regard. The higher Courts have been empowered to grant
probation in appropriate cases, which was denied to the accused by the lower court.
They may also cancel probation granted by the trial court, where it is expedient in
order to prevent the misuse of probation.917
As to the release on probation, the Supreme Court in its decision in Ramamtrihy
v. State of Karnataka,918 observed that it really results in suspension of sentence, as the
person released on probation is required to execute a bond under the provisions of
the Probation of Offenders Act, 1958, requiring maintenance of good conduct during
the probationary period and failure to do so, finds the person concerned in prison
again. The Act contains provision of varying conditions of probation and also lays
down the procedure to be followed in case of the offenders failing to observe those
conditions.919
Procedure
The appropriate stage at which probation order may be made by a court is at
the time of pronouncement of judgment. The Judge may make such an order
straightway without calling for a report920 from the probation officer or he may
prefer to call for a report. However, it is always advisable to call for a report from the
probation officer because at times, material available on record in course of trial is
hardly sufficient for the presiding Judge to make up his mind on the point whether
the accused should be admitted to the benefit of release on probation or not. The
court must record a clear finding about the age of the offender after weighing the
necessary evidence.
With a view to avoiding delay in the disposal of the case, it would be proper for
914 Section 4.
915 Section 6.
916 Section 12.
917 Mohd. Aziz v. State of Maharashtra, AIR 1976 SC 730.
918 (1997) 2 SCC 642.
919 Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 at p. 654.
920 Mohd. Aziz, Mohd. Nasir v. State of Maharashtra, 1976 SCC (Cri) 164.
the court to obtain the probation report before the trial is completed. In warrant cases,
the probation officer is directed to prepare probation report of the offender right at
the time the 'charge' is framed.
The Supreme Court in Municipal Corporation, Delhi v. State of Delhi and another,921
held that the High Court before extending the benefit of Probation of Offenders Act
to the accused did not call for a report from the authorities to check upon the conduct
of the accused as required by Section 4 of Probation of Offenders Act therefore, his
release on probation without such a report is wholly illegal. Moreover, the accused
had also concealed the fact that he was convicted on earlier occasion as well.
In the instant case, the accused was a builder who had committed large scale
irregularities and unauthorised construction of eleven shops at ground floor in Delhi
and was convicted under sections 332 and 461 of the Delhi Municipal Act for six
months and a fine of Rs. 5,000/-. His appeal was dismissed by the High Court. Then
he filed a criminal revision wherein he stated that he did not wish to challenge the
conviction on merits but prayed for benefit of release on probation as he had already
faced trial for 12 long years in lower courts and also remained in jail for three days.
The High Court held that the accused deserved to be released on probation in view of
the agony of trial lasting for 12 years suffered by him. The Delhi Municipal
Corporation (DMC) went in appeal against this order of the High Court to the
Supreme Court.
The Apex Court referred to its earlier decision in Ram Singh v. State of
Haryana,922 wherein it was held that sections 4 and 6 of Probation of Offenders Act
indicate the procedure requiring the Court to call for a report from the probation
officer and consider it. As per section 4(1) of the Act, such report is mandatory.923
The Court therefore, set aside the order of the High Court and remitted the matter to
it for fresh disposal strictly in accordance with law.
Other Enactments
Besides the Probation of Offenders Act, 1958, the provisions of Sections 360
and 27 of the Code of Criminal Procedure, 1973 and the Juvenile Justice (Care and
Protection of Children) Act, 2000 also provide for the release of certain offenders on
probation. These provisions may briefly be stated as follows :—
(i) Section 360 of the Code of Criminal Procedure, 1973, provides the
rationale of protection which is extended to young offenders under the
Indian law.
Firstly, the section excludes certain types of offences (for which draconic
punishment is provided) from the purview of the Probation of
Offenders Act, 1958.
Secondly, the section prescribes certain age-limit for offenders to be
admitted for release on probation ; and Thirdly, the section
explicitly provides that probation applies only to the first offenders.
It is thus evident that the law suggests a selective application of the
probation service to only those offenders who are likely to respond
favourably to the rehabilitative processes.
(ii) Section 27 of the Code of Criminal Procedure, 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 sixteen years, may be tried by the court of a
921AIR 2005 SC 2658.

922 (1971) 3 SCC 914.
923 R. Mahalingam v. G. Padmiwathi and another, 1979 Cr.L.J. (NOC) 20 (Mad.).
Judicial Magistrate or by any Court specially empowered or any other

law for the time being in force providing for the treatment, training or
rehabilitation of youthful offenders. It must be noted that the age-limit of
a juvenile was raised from 15 to 16 years to avoid inconsistency with the
provisions of law contained in the earlier Children Act, 1960 and it is
now 18 years under the Juvenile Justice (Care & Protection of Children)
Act of 2000.
(iii) The Juvenile Justice (Care and Protection of Children) Act, 2000
enunciates the measures for custody and control of destitute and
neglected children and also provides for the protection and treatment of
delinquent children in need of care and protection as also the children
who are uncontrollable and victims of one or the other offence. The Act
lays down precisely the procedure to be adopted by the Juvenile Court
with regard to investigation and trial of juveniles.
(iv) The Juvenile Justice (Care and Protection of Children) Act, 2000 which
came into force with effect from December 30, 2000 and extends to
whole of India excepting the State of Jammu & Kashmir, further
provides for the release of children who have committed offences, on
probation of good conduct and placing them under the care of their
parents or guardians or other fit persons executing a bond, with or
without sureties to be responsible for good behaviour and well being of
the juvenile for any period not exceeding three years. Before allowing a
child on probation, the Juvenile Justice
Board may make suitable enquiries.924
Scope of Probation under Section 360 of Cr.P.C. and Probation of Offenders Act
compared
Unfortunately, the provision of Section 360 of the Code of Criminal Procedure,
1973, being rigid, permits no discretion whereas there is always a need to investigate
in each case whether probation will suit to the requirements of the delinquent or not.
There may be a case where a teenager might not be suited for probation, while on the
other hand, an offender who is otherwise a recidivist, might respond well if he is
admitted to the benefit of the probation law. It is therefore, desired that an agency of
well qualified social workers should be assigned the task of preliminary investigation
on the basis of data and record of the offender proposed for release on probation. The
Government of India have set up Welfare Boards to undertake the liaison work with
the judicial authorities under its Five-Year Plans.
It is evident from the foregoing discussion that the probation law in India
permits release on probation of even the adult offenders who are not recidivists and
show potentiality for re-adjustment to normal life in society. Obviously, the
provisions of Section 360 of the Code of Criminal Procedure, 1973 would not apply
in such cases. v
Unlike Section 360 of Cr.P.C., the Probation of Offenders Act has done away
with the distinction on the basis of age or sex and as such all the offenders whether
below 21 or above 21 years of age are equally entitled to avail the benefit of release
on probation of good conduct or after admonition. Moreover, grant of probation is not
confined to first offenders as in case of Section 360 of Cr.P.C. The Court is
competent to release a previous convict on probation if it thinks it proper to do so
having regard to the circumstances of the case including the character of the offender
and nature of the offence. Thus, the scope of the Probation of Offenders Act is far
924 Sec. 15(e) and (f) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
more wider than the provisions of Section 360 of the Code of Criminal Procedure,
1973.
The Supreme Court in Chhanni v. State of Uttar Pradesh,925 once again reiterated
that the enforcement Probation Act 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 P.O. Act is much wider than Section 360 of Cr.P.C. which relates
only to persons not under the age of 21 years, convicted for offences punishable with
fine only or with imprisonment upto 7 years, and any woman convicted of an offence
not punishable With death or imprisonment for life. Again, Section 360 Cr.P.C. does
not provide for any role of Probation Officers in assisting the courts in relation to
supervision and other matters while P.O. Act does provide for it. Further Section 12
of the P.O. Act states that a person released on probation shall not suffer any
disqualification attached to conviction of an offender under any law but the Cr.P.C.
does not contain any such provision. Therefore, by virtue of Section 8(1) of the
General Clauses Act, where the provisions of die P.O. Act have been brought into
force, the provisions of Section 360 of Cr.P.C. will not be applicable.
In the instant case, the appellant was convicted for the offence punishable
925AIR 2006 SC 3051.

under sections 304 Part II, 323/149 and 147 IPC and was sentenced to five years' R.I.
On appeal, the Allahabad High Court altered the convicton to that of simple hurt
under section 323 IPC and the sentence was accordingly reduced to one year. The
appellant raised plea to be given benefit of release on probation under section 360
Cr.P.C. or Section 4 of P.O. Act. The Supreme Court held that rejection of such
application by the High Court was proper as it was made subsequent to modification
of the sentence. The Court, however, directed the High Court to consider the
application considering the peculiar circumstances of the case.
The Supreme Court, reiterated once again in Ramesh Dass v. Raghunath & others/
that release of an accused charged with commission of an offence under Section 326
r/w 149 IPC on probation under Section 360 IPC would be improper as the offence is
punishable with life imprisonment. Therefore, provisions of the Probation of
Offenders Act would be applicable in the case. The respondents in this case, were
convicted under Section 326/149 and Section 325/149 IPC by the Chief Judicial
Magistrate and sentenced to 5 years' rigorous imprisonment and a fine of Rs. 5,000/-
each. On appeal, the Additional District Judge, Karnal reduced the sentence to three
years. The State appealed against this order and the High Court quashed the
judgment of A.D.J. and restored the judgment of the Chief Judicial Magistrate and
directed release of the accused persons on probation under Section 360 Cr. P.C. and
enhanced the amount of fine to Rs. 15,000/-. It was also directed that 50 per cent of
fine shall be payable to injured victim.
In appeal against the judgment of the High Court, the Supreme Court held that
since the Probation of Offenders Act was applicable in the State of Haryana, the
provisions of Section 360 Cr. P.C. relating to release of offender on probation would
not be applicable. Further, Section 360(1) of Cr. P.C. itself provides that the
provisions of this section would not apply if the offence is punishable with life
imprisonment. The case was therefore, remitted to the High Court.
It is significant to note that the power under the Probation of Offenders Act can
be exercised by any magistrate whereas such power under Section 360 Cr.P.C. is
restricted to the Judicial Magistrate First Class. However, Second Class Magistrate
may also exercise the power to release an offender on probation if he is specially
authorised by the High Court in that behalf.
One of the important features of the Probation Act is the provision regarding
placement of the offender under the supervision of a probation officer. But there is
no such provision under Section 360 of the Code of Criminal Procedure, 1973.
The power to grant probation under the Probation of Offenders Act is
discretionary. However, Section 6 lays down a restriction on the Court not to impose
a sentence of imprisonment on offenders below 21 years of age when found guilty of
offences not punishable with imprisonment for life. The Section provides :
"When any person under 21 years of age is found guilty of having
committed an offence punishable with imprisonment (but not with life
imprisonment), the Court by which the person is found guilty shall not sentence
him to imprisonment unless it is satisfied that having regard to the
circumstances of the case including the nature of the offence and character of
the offender, it would not deal with him under Section 3 or Section 4 (release
after admonition or release on probation of good conduct) and if the court
passes any sentence of imprisonment on the offender, it would record its
reasons for doing so."
It has been held that the sentence of imprisonment imposed on the young of
fender below 21 years of age without compliance with the aforesaid provision of
Section 6 would be wholly illegal.926
926 Jai Gopal v. State, 1975 Cri. L.J. 921 (P. & H.).
1. AIR 2008 SC 1298.
The Supreme Court in Gulzar v. State of Madhya Pradesh,927 clarified that benefit
534
of probation under Section 4 of the Criminology
Probation and Penology Act, 1958 and Section
of Offenders
360 of the Code of Criminal Procedure, 1973 cannot co-exist at the same time in
same area. The scope of Section 4 of the Probation of Offenders Act is much wider
as it applies to any person found guilty of having committed an offence not
punishable with death or imprisonment for life. Again, Section 360 Cr. P.C. does not
provide for any role of probation officers in assisting the courts in relation to
supervision and other matters whereas Probation of Offenders Act does contain such
a provision. As provided by Section 8(1) of the General Clauses Act, where the
provisions of Probation of Offenders Act have been applied, the provisions of
Section 360 Cr. P.C. would be wholly inapplicable.
In the instant case the victim (complainant) boarded a bus on 25th December,
1992 at about 7.30 p.m. after having made collection of moneys from his customers
who were merchants of tea-leaves. While he got out of bus to meet one Kailash only
for five minutes, on return he found that his attache containing about 50-60 thousand
rupees cash and receipt books etc. was stolen. He therefore, filed F.I.R. bearing No.
8/60 in the police station, Bakaner. On completion of investigation, the stolen money
was recovered from the accused Gulzar and he was convicted for an offence under
Section 379 IPC. The sentence of the accused for three years imprisonment for the
offence of 379 IPC was upheld by the Indore Bench of High Court of Madhya
Pradesh. The accused therefore, came before the Supreme Court for release on
probation under Section 4 of the Probation of Offenders Act or Section 360 Cr. P.C.
The Apex Court remitted the matter to the High Court to consider whether the
benefits under the Probation of Offenders Act or Section 360 Cr. P.C. could be
extended to the appellant.
In Bishnu Deo v. State of West Bengal,928 the Supreme Court held that provisions
of Section 10(6) and 10(7) of the Immoral Traffic (Prevention) Act, 1956, which
were inserted by the SITA (Amendment) Act, 1978 constrain the Court from
imposing sentence of imprisonment on first female offenders found guilty of having
committed an offence under Section 7 and Section 8 of the Act unless it records
reasons for doing so, on the basis of probation officer's report and other materials
which justifies female's imprisonment.
After the enactment of law of the Probation of Offenders Act, 1958, most of the
States introduced probation law for their offenders. Section 18 of the Act,
927 AIR 2008 SC 383.

928 AIR 1979 SC 971.
however, provides that nothing in the Act shall affect the provisions of the under
mentioned Act :—
(1) The Reformatory School Act, (Sec. 31).
(2) The existing State laws relating to juvenile delinquents and Borstal
institutions.
(3) The provisions of the Immoral Traffic (Prevention) Act, 1956 ; and
(4) The Prevention of Corruption Act, 1988 [Sec. 5 (2)].
Section 14(a) of the Probation of Offenders Act contains a mandatory provision that
whenever the court, in its opinion considers it reasonable to admit an adult offender above
the age of 21 years to the benefit of release on probation, it must first secure a pre-
sentence report from the Probation Officer.929 This report may not be necessary in case the
offender is below twenty-one years of age, but if at all the report is submitted by the
probation officer, it must be taken into consideration. The pre-sentence report prepared by
the probation officer usually contains the details about the antecedents of the offender, his
life history, family background, marital status, educational standard, social and economic
background and the circumstances which led him to commit the offence. The report is to
be treated as a confidential document930 by the court.
After receiving a favourable report from the probation officer about the prospective
probationer, the presiding Judge determines the exact period of probation for the
delinquent. The period of probation may vary from offender to offender depending on his
potentiality for readjustment to normal life in society. Thus, for some probationers a
period of six months or so may suffice while for others even a period of a year or two may
be insufficient. It has been generally accepted that keeping the delinquent under
supervision for an indeterminate period until his rehabilitation, seems to be the best policy
in this regard. In India, the maximum limit for the release of an offender on probation is
three years.931 The probationer can be set at liberty any time during the period of probation
as soon as he is considered fit for release in the opinion of the probation officer. But this
provision has been criticised for two obvious reasons. Firstly, leaving the probationer
entirely at the mercy of the probation officer has its own disadvantages ; and secondly, it
creates resentment among the probationers as they feel that they are being unduly
discriminated by the probation authorities. To obviate these possibilities, some countries
have prescribed a minimum and a maximum limit during which the probationer is kept
under supervision and he can be discharged any time after he has completed the minimum
period.
Judicial Trend
The role of courts in bringing about rehabilitation of offenders need not be over-
emphasised The final verdict as to whether an offender deserves to be admitted to the
benefit of release on probation or not, lies with the court. Obviously, the decision as
regards the release of an offender on probation is to be taken only after his guilt is proved.
Probationary disposition being a post-conviction process, depends largely upon the
probability of the offender to reform himself. Therefore, the Judge has to use his discretion
in the matter most judiciously.
Socio-legal researches on probation reveal that the factors which influence judicial
sentencing, by and large, include age, sex or maturity of the offender, his family and
educational background, nature of crime and the circumstances under which offence is
committed and previous criminal record of the offender, if any. Experience has shown that
929 Ratanlal v. State of Punjab, AIR 1965 SC 444. See also Ramji Missar and others v. State of
Bihar, AIR 1963 SC 1088 and Suja v. State, AIR 1964 Raj. 72.
youth, unblemished previous record, immaturity etc. are generally good grounds for
leniency while recidivism, violence, sex-perversiveness, etc. are sufficient to warrant
severe punishment. These are, however, mere generalisations and do not in any way fetter
judicial discretion in sentencing the offender. The Judge while considering the punishment
can hardly afford to overlook the modem correctional trends in the field of penology. His
decision therefore, plays a vital role in deciding the future of the offender.
A survey of the available case-law on probation would reveal that before 1970's the
courts were hardly responsive to changing trends in modem correctional penology due to
lack of adequate professional training in rehabilitative measures. This contention finds
support in some of the observations made by judicial elites of the country. Thus, Mr. Justice
S. M. Sikri, the former Chief Justice of the Supreme Court of India, in his inaugural address
on the eve of Probation Year on May 7, 1971, inter alia, observed
"Not only the probation officers should be convinced of the advantages of
the probation but the Judiciary and the Bar must become its votaries.
Unfortunately, at present very little serious attention is paid to this aspect
by the Judiciary or the Bar."
Again, Mr. Justice V. R. Krishna Iyer, former Judge of the Supreme Court, expressing
his views on probation and other correctional services in the National Correctional
Conference on the Probation and Allied Measures held in October, 1971 at New Delhi
observed :932
"Twenty-five years of freedom have not freed out judiciary from the
obsolescent British Indian penology, bearing on suppression of crime.
And it is time for our magistracy to bend to the winds of social changes
..................................... "
Similar views were expressed by Mr. Justice K. Sadashivan of the High Court of Kerala
while addressing the National Conference on Probation in October, 1971. He reiterated the
need for the judges and the magistrates to be solicitous to implement the penal reforms
envisaged by the law of probation which is a correctional measure.933
Commenting on the theme of probation law, Mr. Justice R B. Gajendragadkar, the
former Chief Justice of India, observed :934
"Probation, in its proper perspective should lead us to the consideration of
a much larger problem of basis of our jurisprudence and our
administration of criminal law on
human, scientific and rational lines .......... punishment is no longer
regarded as reformative or retributive, but is regarded as rehabilitative."
Expressing concern for the problem of releasing offenders on probation, Mr. Justice O.
C. Reddi of Andhra Pradesh High Court pinpointed the need for Judges and magistrates to
acquaint themselves with the latest techniques of treatment of offenders, in particular with
the system of probation. He warned that mere knowledge about the provisions of probation
law is not enough but the magistracy should have a deeper insight into the problems
relating to probation and the probationer.935
Once again, Justice V.R. Krishna Iyer offered a very dismal picture of judicial trend
towards probation and observed :
"The 20th century approach to crime and punishment is, for us, of
932 Ibid. Vol VIH No. 27 (January. 1972), pp, 26-27.

933Social Defence Quarterly, Vol. VII, No. 27 (January, 1972), published by Central Bureau of
Correctional Services New Delhi, p. 4.
934 Valedictory address before the National Correctional Conference on Probation held at New
Delhi in October, 1971.
935 Inaugural Address read in the seminar on Courts and Probation held at Hyderabad in
March, 1971.
Gandhian vintage but runs counter to the traditional theory of harsh

deterrence writ large in the Indian Penal Code and the Criminal Procedure
Code. The ghosts of Macauley and men of his ilk haunt our criminal
courts still, so much so, that probation fairs ill in the law courts. Twenty-
five years of freedom have not freed our judiciary from the obsolescent
British Indian ideology bearing on suppression of crime.936
It must be stated that while disposing of the offender on probation the Judges are
confronted with the crucial task of striking a balance between the protection of society on
the one hand and the correction of offender on the other. The magistracy cannot afford to
dispose of the convict without taking into consideration the nature and gravity of the
offence and potentialities for reformation of the criminal. Thus it would be seen that
though probation as a treatment reaction to crime presupposes greater emphasis on the
offender than the offence, in practice it involves equal importance to offence as well. This
contention finds support in a number of judicial decisions of the courts.
In Ranjit Singh v. The State,937 the High Court of Patna awarded a sentence of six years'
simple imprisonment and a fine of rupees one thousand to the accused for the offence of
forgery under Sections 467, 468, 471 and 420 of the Indian Penal Code. Denying the
benefit of release on probation to the accused the Court observed that the case deserved no
compassion keeping in view the nature and gravity of the offence and the standing of
accused as a pleader having a lucrative practise.
Again, in Kamaroonissa v. State of Maharashtra,* the Supreme Court confirmed the
sentence of accused, a girl below 21 years of age who was convicted for theft and
observed that it was not desirable to admit her to the benefit of probation. The Court
reiterated similar view in Prem Ballabh v. The State.938
A review of case law relating to probation of offenders in India would indicate that
the courts seem to have exercised utmost caution in interpreting the provisions of
probation law and have generally kept in the forefront the public policy and impact of
offender's act on society.
In Sunna v. State939 the accused aged twenty years was found guilty of an offence
under section 380, I.P.C. for committing theft of a bicyle and some clothes. The Court
ordered his release after admonition under Section 3 of the Probation of Offenders Act,
1958 because there was no previous conviction of the accused and the theft was committed
due to sudden temptation without any premeditation.
In Uttam Singh v. Delhi Administration,940 the appellant was convicted under section
292,1.P.C., for being in possession of three packets of playing cards and some obscene
photographs. He was sentenced to six months' rigorous imprisonment and a fine of rupees
five hundred. Having regard to the age of the accused (he was then 36), and the
circumstances of the case, the Supreme Court refused to allow him the benefit of release
on probation as he was a potential danger to society.
In Abdul Qayum v. State of Bihar,941 the appellant aged sixteen years pick-pocketed
rupees fifty-six. Despite probation officer's favourable report for release on probation, he
was sentenced to six months' rigorous imprisonment by the trial court because of his
association with a seasoned pick-pocket. On appeal, however, the Supreme Court directed
the trial court to place him under probation.
The Supreme Court has always taken a stiff line of approach in dealing with the
936 V.R. Krishna Iyer : Social Mission of Law, (1976) pp. 96-97.
937 AIR 1963 Pat. 262.
938 AIR 1977 SC 56.
939 AIR 1967 Orissa 4.
940(1977) 1 SCC 103.
941 AIR 1972 SC 21.
offenders found guilty of premeditated offences. Thus in Somnath Puri v. State of

Rajasthan,942 the Supreme Court dismissing the appeal observed that the benefit of
probation law cannot be invoked in case of offence of fraudulent misappropriation falling
under Section 409, I.P.C. and Section 5(2) of the Prevention of Corruption Act, 1947 now
Act of 1988 and the High Court of Rajasthan was justified in maintaining the sentence of
the appellant passed by the trial court.
In yet another case,943 the Supreme Court ruled that an accused though under 21
years of age cannot be released on probation if found guilty under Sections 326 and 149,
I.P.C. which is a premeditated offence punishable with imprisonment for life.
Again, in case of Sanchu Ray v. State of Assam,944 where the accused was about 19/20
years of age and had no previous criminal antecedents, was sentenced to one year's
rigorous imprisonment. Keeping in view the fact that the accused was of a tender age and
the offence was committed ten years ago, the Supreme Court directed him to be released
on probation of good conduct with a bond of Rs. 1,000/- with one surety of like amount.
In a criminal appeal, i.e., Raju Singh and others v. State of Madhya Pradesh,945 the
appellants were convicted under Sections 325/34 and 148 I.P.C., the criminal act having
been committed long back in 1985. There was no previous conviction against the
appellants and they had already been in jail for one month. The High Court of Madhya
Pradesh held that in view of the long pendency of the case and harassment to the
appellants for almost a decade, and the antecedents and sentence awarded to them, the
appellants deserve to be enlarged under Section 4 of the Probation of Offenders Act, 1958,
on probation on execution of a bond of good conduct of Rs. 3,000/-each with two sureties
in the like amount for a period of one year. The appeal was thus dismissed with
modification in the sentence and directing the appellants to appear before the ACJM
Bemetra on March 30, 1995 to execute the bond.
The benefit of release on probation is specifically denied to cases involving sex
perversity. Thus, disposing of an appeal946 involving an offence under section 377, I.P.C.,
the Supreme Court observed that having regard to the gravity and nature of the unnatural
offence which involved sex perversity, the High Court was right in disallowing the benefit
of probation to the accused although he had no previous conviction against him. The
sentence of accused was therefore, upheld but modified and reduced to six months instead
of three years.
The Supreme Court took a strict view of the case involving sex-perversity and
refused to allow the benefit of release on probation to the accused in Smt. Devk-i v. State of
Haryana.947 In this case, the petitioner was found guilty of abducting a teenage girl of 17
years and forcing her to sexual submission with commercial object and was convicted and
sentenced by the trial court for three years' imprisonment. The sentence was confirmed by
the High Court. On appeal, the Supreme Court refused to allow the benefit of probation to
the accused keeping in view the moral turpitude and heineousness of the offence.
Again, in Krishna Chandra v. Harbans Singh,* the accused, an educated young man was
found guilty of having committed house-trespass in his neighbour's house and committed
rape on the said neighbour's wife. The Court held that the offender cannot be admitted to
the benefit of probation keeping in view the nature of the offence and depravity of the
offender.
942 AIR 1972 SC 1490.

943 Jugal Kishore Prasad v. State of Bihar, AIR 1972 SC 2522.
944 (1987) Cr. LJ 1378.
945 Criminal Appeal No. 274 of 1986 decided on 21-2-1995. Reported in 1995 (2) Crimes 700.
946 (1982) 3 SCC 9.
947 AIR 1979 SC 1948.
The decision of the Supreme Court in Phul Singh v. State of Haryana,948 is a pointer to
the consistency of judicial trend in disallowing the benefit of probation to offender's guilty
of offences violating sex or morality. In the instant case, the accused Phul Singh, a youth
of 22 years of age without any previous criminal record was overpowered by sex urge and
entered his next door neighbour's house in broad day light and committed rape on latter's
twenty-four year's wife who was alone in the house. The victim complained to her mother,
thereupon the accused was presented and sentenced to four years' rigorous imprisonment
by the Sessions Court. The High Court confirmed the sentence. On appeal, the Supreme
Court upheld the sentence but reduced it
948 AIR 1980 SC 249.

from 4 to 2 years thus blending deterrence with correctional approach. The Court
observed that despite the fact that the accused was young offender, that he had no previous
criminal record, that he had committed the crime in a fit of momentary impulse and was
repentant for his act, that he was related to victim's family who were ready to forgive the
molester keeping in view his relationship with them, no leniency can be shown to the
accused in cases of such "lust-loaded criminality".
The judicial attitude has been against allowing the benefit of probation law to
persons who are educated and experienced in life and deliberately flout law with impunity.
The reason being that if such persons were to be released on probation, the very purpose
with which the Probation of Offender's Act was enacted, would be defeated. This view
finds support in Nabin Chandra Das v. State} wherein the petitioner was a grown up man and
a journalist who not only used obscene language but assaulted a public servant in a public
place. The Court observed that the conduct of the petitioner who was expected to show
greater sense of responsibility manifested a very mischievous disposition. Therefore, the
provisions of the Probation of Offenders Act cannot be applied to such a case considering
the circumstances of the case including the nature of the offence and character of the
offender.
In Siya Saran v. State of Madhya Pradesh} the accused dissatisfied by treatment given to
his brother in the Government hospital by the Assistant Surgeon, first insinuated the doctor
about the improper manner of treatment meted out to his brother and then gave him a fist
blow on his face with the result that a tooth of the doctor was dislocated and his lip was
cut. The appellant was tried and found guilty under Sections 333 and 506, Part II of the
IPC and was sentenced to three years' and two years' rigorous imprisonment respectively
for the aforesaid offences. His appeal to the High Court was dismissed therefore, he
appealed to the Supreme Court.
The Counsel for the appellant pleaded that since the appellant had well settled in life
by taking up the job of a Gram Sevak, he should be released on probation under Section 6
of the Probation of Offenders Act. The Supreme Court rejected the appeal and observed
that the behaviour of the appellant cannot be easily condoned as it would adversely affect
the morals of doctors and nurses working in hospitals and they would be left prone to such
untoward incidents if the appellant was granted the benefit of probation.
It may, however, be stated that the Courts have shown considerable leniency in
extending the benefit of probation to offenders guilty of theft, assault etc. with a view to
offering them an opportunity to reform and rehabilitate themselves. Thus in Rajoo v. State
of Rajasthan,949 the High Court of Rajasthan allowed the benefit of release on probation to
two accused convicted for offences under Section 323 of the Indian Penal Code.
The Supreme Court in Hansa v. State of Punjab950 allowed the release of appellant on
probation of good conduct although he was found guilty of having committed the offence
of causing grievous hurt under Section 325, I.P.C. which is punishable with maximum
sentence of seven years. The Court in this case observed that having regard to the
circumstances of the case and the nature of the offence as also the character of the
offender, it was expedient to allow him the benefit of Section 4 of the Probation of
Offenders Act, 1958.
In yet another case i.e., State of Maharashtra v. Ramji Ranchandra Rokade and another,‘
three accused found guilty of offences under Section 353, I.P.C. were admitted to the
benefit of release on probation by the High Court of Bombay. In this case, the accused, a
cook employed in a Rest House, along with his two sons assaulted a labourer who they
alleged had spoiled the drinking water. While the quarrel was going on, the complainant a
949 (1977) Cr. LJ 837 (Raj).

950 AIR 1977 SC 991.
constable on duty came there and intervened. According to the complainant, the three
accused gave him blows and abuses, while the version of the accused was that the
complainant intervened and gave them blows. The accused were convicted under Section
353, I.P.C. but were allowed the benefit of probation because they had no previous
conviction against them.
Again, the Supreme Court in Prakash v. State of Madhya Pradesh951 ordered the release
of appellant (accused) who was found guilty and convicted for an offence under Section
324, IPC, on probation of good conduct keeping in view the nature of his offence, the
circumstances and antecedents of the offender. In this case, the accused was an employee
of the municipality, was a first offender and his offence was not premeditated and the
injury caused to the victim was not grave or serious. The Supreme Court ruled that these
grounds were sufficient to entitle the accused to be released on probation.
In yet another case, namely, Rajender Dutt v. State of Haryana,952 the accused, a
subordinate employee was found guilty of causing grievous hurt to his superior officer and
convicted under Sections 334 and 353 of the Indian Penal Code. He had assaulted the said
official due to erroneous belief that he was instrumental in getting the accused transferred
elsewhere. The Supreme Court refused to allow the benefit of probation to the accused as
his act was premeditated and could not be said to have been done in excitement or in
emotional distress.
In the case of Mohammad alias Bitiya v. State of Rajasthan* the appellant was charged
under Section 302, I.P.C. but the Sessions Judge convicted him under Section 304, Part II,
of the Indian Penal Code and sentenced him to four years' imprisonment. Against this
order, the State as also the appellant preferred appeals but both the appeals were dismissed.
On verification of the age of the appellant, he was found to be less than 21 years of age on
the date of occurrence of crime. In view of this fact, the Supreme Court directed that the
appellant be released on probation on executing a bond to the satisfaction of the concerned
magistrate for the period of two years.
In Mohd Monir Alcan v. State of Bihar,953 there was a sudden fight between the parties
who were closely related to each other during demarcation of land on 26th Feb. 1992
which was being conducted by the Revenue Amin in the presence of the police havildar
and other officials. The appellant assaulted the deceased during the free fight and was
convicted under sections 304, Part II read with Section 149, IPC and sentenced to three
years imprisonment. On appeal, the High Court of Patna modified the conviction from one
under Section 304 Part II and 323 simpliciter to one under section 304 Part II read with
Section 149 IPC and thus in fact confirmed the judgment of the trial court. In appeal
against this judgment of the High Court, it was pleaded on behalf of the appellant that the
appellant had secured a very prestigious employment (in 1997) and he should be released
on probation of good conduct under section 4 of the Probation of Offenders Act, 1958.
The Supreme Court noted from the documents on record that the appellant had
secured a doctorate and was employed as a Senior Asstt. Professor in the Department of
Stragetic & Regional studies, University of Jammu and had expertised in this subject and
had also portrayed his association with other prestigious organisations worldwide in the
field of strategic studies. Therefore, his conduct and attainments justified his release on
probation. As such, the court dismissed the appeal but directed that the appellant be
released on probation under Section 4 of the Probation of Offenders Act on terms to be
settled by the Trial Court.
In Member alias Gudda v. State of Madhya Pradesh} the appellant caused 19 injuries to
951 (1993) Cr LJ 119 (SC).

952 (1993) Cr LJ 1025 (SC).
953 AIR 2010 SC 698.
the complainant and was convicted under Section 323, I.P.C. and sentenced to R.I. for one
month and a fine of Rs. 500/-. In default of payment of fine, he was to undergo two
months' further R.I. An appeal was filed against this order. The High Court of Madhya
Pradesh held that it was not known to the Court as to who had caused extra injuries
whether it was the appellant or the absconding accused named Vakeel. Be that as it may,
there is no dispute that the appellant is a first offender and there has been no previous
criminal record. He is therefore, entitled to the benefit of Section 3 or 4 and 5 of the
Probation of Offenders Act, 1958. He should, however, pay a sum of Rs, 5,000/- as
compensation to the victim who suffered as many as 19 simple injuries.
The High Court of Madhya Pradesh in Raju and others v. State of M.P.,954 decided that
the benefit of first offender may not be available to an accused who caused simple hurt to
the complainant without any dispute and was convicted for an offence under Section 323,
I.P.C. because award of sentence is not mandatory for an offence under this section and it
may be punishable only with payment of fine. Taking into consideration the totality of the
circumstances, the Court held that accused persons who are rustic villagers deserve to be
let-off on payment of fine only without extending the benefit under Section 3, 4 or 6 of the
Probation of Offenders Act, 1958. Each of the accused was ordered to pay fine of Rs.
1,000/- within thirty days and in default, undergo R.I. for 6 months. If the fine is
recovered, Rs. 3,000/- will be paid to complainant as compensation.
In the case of Sitaram Paswan and another v. State of Bihar,955 the accused was convicted
and sentenced to imprisonment for three months under section 323 IPC and for six months
under Section 324 read with Section 34 of IPC. The
9541999 (2) C Cr J 645 (MP).

955 AIR 2005 SC 3534.
convict had voluntarily caused simple hurt by using lathis and fists. The
defence counsel pleaded that the accused had no previous conviction and was young
therefore, looking to the nature of the offence and circumstances of the case and the
character of the offender, he should be allowed the benefit of Section 4 of the P.O.
Act and released on probation. The Supreme Court, while confirming the conviction
of the appellant (accused) directed that he be released on probation on his entering
into a bond for Rs. 10,000/- within three weeks from the order of the Court.
However, the conviction of other appellant who made assault by using sword was
not interfered with by the Court as his case was not a fit case for release on
probation.
The Supreme Court in Masarullah v. State of Tamil Nadu} allowed the ' benefit of
Sections 4 and 6 of the Probation of Offenders Act to the appellant who was
convicted under Sections 452 and 379 of the Indian Penal Code. Taking a lenient
view, the Court observed that the appellant belonged to a middle class respectable
family but unfortunately he fell in bad company of undesirable elements and the
criminal influence of movie accentuated the dormant criminal propensity in him and
he committed the crime. Under the circumstances, the accused deserved to be treated
leniently and therefore, ordered to be released on probation of good conduct.
In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others,956 the
Supreme Court held that in case of offences under Sections 324 and 452 read with
Section 34 I.P.C. (i.e., beating and trespass), the accused may be released on probation
by directing them to execute a bond of good behaviour for one year. In this case, the
incident of assault (marpeet) took place in a fit of anger during the course of a dispute
between neighbours. The complainant was beaten by the accused persons causing
her four simple injuries. All the parties were well educated and also distantly related.
The incident was more than ten years old. The accused persons were sentenced to
one month imprisonment with a j fine of Rs. 500/- each. The High Court maintained
the conviction but in appeal, the Supreme Court deemed it a fit case for the accused
to be released on probation and allowed the appeal.
In Jawahar v. State of West Bengal,957 the appellant was guilty and convicted for
the offence under Section 454 (lurking house trespass with intention to commit theft)
of the Indian Penal Code because he entered the watch repairing shop and was
caught stealing red-handed by the informant with the help of some other witnesses.
The trial Court, after applying its mind whether the petitioner should be given
advantage of probation law under Section 360, Cr PC declined to allow the benefit
of probation to the accused because the accused had dared to enter into the locked
shop in open day light. He therefore, deserved to be punished under Section 454,
IPC despite his age being little less than 18 years at the time of occurrence (i.e.
4.9.91) and there was no antecedent report against him. The appeal was rejected by
the appellate court and the sentence of the accused for one year and to pay a fine of
Rs. 500/- in default to undergo rigorous imprisonment for one month, was
maintained. In a further appeal, the High Court of Calcutta modified the sentence
imposed against the
convict had voluntarily caused simple hurt by using lathis and fists. The defence
counsel pleaded that the accused had no previous conviction and was young therefore,
looking to the nature of the offence and circumstances of the case and the character of
the offender, he should be allowed the benefit of Section 4 of the P.O. Act and
956 (2004) 7 SCC 659.

957 1995(2) Crimes 740 (Cal. H.C.).
released on probation. The Supreme Court, while confirming the conviction of the
appellant (accused) directed that he be released on probation on his entering into a
bond for Rs. 10,000/- within three weeks from the order of the Court. However, the
conviction of other appellant who made assault by using sword was not interfered with
by the Court as his case was not a fit case for release on probation.
The Supreme Court in Masarullah v. State of Tamil Nadu} allowed the ' benefit of
Sections 4 and 6 of the Probation of Offenders Act to the appellant who was convicted
under Sections 452 and 379 of the Indian Penal Code. Taking a lenient view, the Court
observed that the appellant belonged to a middle class respectable family but
unfortunately he fell in bad company of undesirable elements and the criminal
influence of movie accentuated the dormant criminal propensity in him and he
committed the crime. Under the circumstances, the accused deserved to be treated
leniently and therefore, ordered to be released on probation of good conduct.
In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others,958 the
Supreme Court held that in case of offences imder Sections 324 and 452 read with
Section 34 I.P.C. (i.e., beating and trespass), the accused may be released on probation
by directing them to execute a bond of good behaviour for one year. In this case, the
incident of assault (marpeet) took place in a fit of anger during the course of a dispute
between neighbours. The complainant was beaten by the accused persons causing her
four simple injuries. All the parties were well educated and also distantly related. The
incident was more than ten years old. The accused persons were sentenced to one
month imprisonment with a fine of Rs. 500/- each. The High Court maintained the
conviction but in appeal, the Supreme Court deemed it a fit case for the accused to be
released on probation and allowed the appeal.
In Jawahar v. State of West Bengal,959 the appellant was guilty and convicted for the
offence under Section 454 (lurking house trespass with intention to commit theft) of
the Indian Penal Code because he entered the watch repairing shop and was caught
stealing red-handed by the informant with the help of some other witnesses. The trial
Court, after applying its mind whether the petitioner should be given advantage of
probation law under Section 360, Cr PC declined to allow the benefit of probation to
the accused because the accused had dared to enter into the locked shop in open day
light. He therefore, deserved to be punished under Section 454, IPC despite his age
being little less than 18 years at the time of occurrence (i.e. 4.9.91) and there was no
antecedent report against him. The appeal was rejected by the appellate court and the
sentence of the accused for one year and to pay a fine of Rs. 500/- in default to
undergo rigorous imprisonment for one month, was maintained. In a further appeal,
the High Court of Calcutta modified the sentence imposed against the
petitioner and directed that he be released on probation for two years on his entering into a
bond of Rs. 3,000/- with two sureties of like amount each, one being his father or near
blood relation. The Court assigned following reasons for admitting the accused to the
benefit of release on probation :—
1. that the accused was aged only about 18 years on the date of commission of
the offence ;
2. that the occurrence took place in day-light;
3. that the door of the watch repairing shop was so loose that anyone could
manage entry into it without breaking open the lock and key ; and
4. that no theft had actually been committed as the accused was apprehended
while perpertaing the offence.
958 (2004) 7 SCC 659.

9591995(2) Crimes 740 (Cal. H.C.).
The Court found it to be a fit case in which benefit of Section 6 of the Probation of
Offenders Act could be allowed to the accused.
The crucial question involved in the case of Sudesh Kumar v. State of Uttarakhand,*
was related to interpretation of Section 6 of the P.O. Act which provides that when any
person under 21 years of age is found guilty of having committed an offence punishable
with imprisonment (but not with imprisonment for life), the Court by which the person is
found guilty shall not sentence him to imprisonment, unless it is satisfied, that having
regard to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under Section 3 or
Section 4 and release him on probation. In such case, he shall record his reason for not
allowing the benefit of release on probation to the offender.
While interpreting Section 6 of the P.O. Act, a three-judge Bench of the Supreme
Court in Daulat Ram v. State of Haryana,2 observed that the object of the section being to see
that young offenders are not sent to jail for the commission of less serious offences
because of grave risk of their attitude to life to which they are likely to be exposed as a
result of their close association with hardened and habitual criminals, who may happen to
be inmates of the jail.
Another three-judge Bench of the Supreme Court reiterated the same principle in
Satyabhan Kishore v. State of Bihar,3 and held that Section 6 lays down an injunction as
distinguished from discretion under Sections 3 and 4 not to impose a sentence of
imprisonment on an offender, unless reasons are recorded.
In Masarullah v. State of Tamil Nadu* the two Judge Bench of the Apex Court held that
in case of an offender under 21 years of age, the Court for the purpose of determining the
exact age will take into consideration the date of commission of the offence and not the
date on which he is found guilty and sentence was passed against him.
However, the Supreme Court in Sudesh Kumar v. State of Uttarakhand,5 noted that the
two Judge Bench in Masarullah case had overlooked an earlier decision of a larger Bench
of four Judges given in Ramji Missar v. State of Bihar,6
1. AIR 2008 SC 1120.
2. AIR 1972 SC 2434.
3. AIR 1972 SC 1554.
4. AIR 1983 SC 653.
5. AIR 2008 SC 1120.
6. AIR 1963 SC 1088.
wherein the crucial date to be taken into consideration for determining the age of 21 years
would be the date of conviction and passing of the sentence by the trial Court and not the
date of commission of the offence and this ruling of the Court still holds the field.
Therefore, although the accused was less than 21 years on the date of commission of
offence in the case before it, he was above the age of 21 years on the date of conviction
and punishment by the trial Court. Hence, there is no question of his being allowed the
benefit of Section 6 of the Act for release on probation. More so, when he did not raise this
plea before the trial court and the High Court and was raising the issue for the first time
before the Supreme Court.
Interestingly, the counsel for the appellants argued that while considering pari materia
provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000 the age
of Juvenile to be taken into the consideration is date of commission of the offence and not
the date when he is produced before the competent authority or Court and therefore, the
provisions of Section 6 of the Probation of Offenders Act, should also be construed in the
same light. But the Apex Court clarified the position on these two Acts and held that
provisions of Juvenile Justice Act being benevolent and meant for the care, protection,
treatment, development and rehabilitation of juveniles, they ought to be given an
interpretation which would advance the cause of this beneficial legislation. But as against
this, the purpose of the Probation of Offenders Act for applying the relevant provisions
(i.e., Sections 3, 4 and 6) to the accused are different and cannot be said in pari materia with
those of Juvenile Justice Act, 2000. Therefore, Section 6 of the Probation of Offenders Act
would apply to the accused who is under 21 years of age on the date of imposition of
punishment by the trial Court and not on date of commission of the offence. If on the date
of conviction and sentence by the trial Court, the accused is below 21 years of age, the
provisions of Section 6 of the P.O. Act will be fully applicable.
Removal of Disqualification attached to Conviction
Section 12 of the Probation of Offenders Act, 1958 provides that a person found
guilty of an offence and admitted to the benefit of release on probation under Section 3 or
Section 4 of the Act, shall not suffer disqualification, if any, attached to the conviction of
an offence under such law. It is indeed a salutary provision which facilitates the
rehabilitation of the released probationer. The object of this section is to save the
probationer from various civil disabilities resulting from his conviction. For example, if a
person is debarred from contesting election on account of disqualification, his release on
probation will negative this disqualification and he may contest election. Further, the
conviction of an employee simpliciter without anything more, will not result in his
automatic dismissal from service if he has been allowed the benefit of being released on
probation by the sentencing court. This view finds support in a number of judicial
pronouncements of the Supreme Court. However, removal from service or part of it as a
departmental punishment is not an essential and automatic consequence of conviction on a
criminal charge and therefore, the provisions of Section 12 of the Act relating to the
removal of disqualification attaching to conviction are not attracted in case of removal
from service of the delinquent employee who is released on probation. The judicial trend
in this regard is discernible from the cases cited hereunder :—
In Kehar Singh v. Regional Employment Officer, Chandigarh} the petitioner was convicted
for theft under Section 380 of IPC and was dealt with under Section 4 of the Probation of
Offenders Act, 1958. He was removed from service consequent to the decision of the
Court. On appeal, he was reinstated on the ground that phraseology of Section 12 of the
Probation of Offenders Act is express, explicit and mandatory and seeks to remove
disqualification attaching to conviction in probation cases.
In the case of Divisional Personal Officer Southern Rly. v. T.H. Challappan,960 the Supreme
Court ruled that Section 12 of the Probation of Offenders Act does not contemplate
automatic disqualification of a person released on probation. This case involved disposal
of three appeals by the Supreme Court in all of which points involved were identical.
In one case, a railway pointsman was arrested on August 12, 1972 at Irimpanan
railway station in Southern Railway for drunkenness and indecent behaviour and a
criminal case under Section 51-A of the Kerala Police Act was registered against him. He
was found guilty and was released on probation under Section 3 of Probation of Offenders
Act instead of being sentenced to a term of imprisonment. He was removed from service
on disciplinary ground on January 3, 1973 for misconduct which had resulted into his
conviction. The High Court held that the probationer was removed from service only on
the ground of his conviction without being heard and as no penalty was imposed on him,
the order of dismissal must be quashed. His writ petition was therefore, admitted.
In the second case, respondent Narsingh was a railway Khalasi in Jodhpur railway
workshop and was found in possession of stolen copper weighing four and half kilograms.
He was prosecuted and ultimately convicted by Magistrate under Section 3 of the Indian
Railway Property (Unlawful Possession) Act, 1916. On appeal, the learned ADJ, Jodhpur
while maintaining the conviction of the accused set aside the sentence and ordered his
release on probation under the Probation of Offenders Act. The respondent was removed
from service on February 26, 1971 on the basis of his conviction. Here also, the High
Court allowed the writ petition and quashed the dismissal order.
In the third case, one Abdul Hamid, a peon at railway workshop, Jodhpur was
prosecuted and ultimately convicted under Section 420 of IPC by Special Magistrate,
Jodhpur on September 9, 1970. The Magistrate, however, released him on probation of
good conduct instead of sentencing him. The disciplinary authority i.e., Assistant
Mechanical Engineer, by an order dated February 13, 1971 removed him from service on
the ground of conviction and rejected his departmental appeal. The respondent therefore,
moved an appeal to the High Court under Article 226 of the Constitution which was
allowed by the Court.
In all the aforesaid three cases, the Government went in appeal to the Supreme
Court. The learned counsel for the appellants (Government) in all these cases raised the
issue of Section 12 of the Probation of Offenders Act and stressed that the provision of this
section contemplates automatic disqualification attached to the conviction and not the
obliteration of misconduct of the accused so as to debar the disciplinary authority from
imposing penalty under rules against employees who have been convicted for misconduct.
The respondent's counsel, on the other hand, argued that if the Magistrate does not
choose after convicting the accused, to pass any sentence on him but releases him an
probation, the stigma of conviction is completely washed out and obliterated.
The Supreme Court, quoting the phraseology used in Sections 3 and 4(1) of the
Probation of Offenders Act, held that conviction is not washed out at all. The order of
release on probation is merely a substitution of sentence imposable by Court. Section 12
therefore, does not afford immunity against disciplinary proceedings for misconduct.
In deciding the case of Shanker Dass v. Union of India} the Supreme Court took a
960AIR 1975 SC 2216.

liberal view of the provision of section 12 of the Probation of Offenders Act, 1958 and
ordered the appellant to be reinstated in service. In this case, the appellant misappropriated
Rs. 500 from the Delhi Milk Service and thus committed breach of trust. He pleaded guilty
of the charge and was convicted under Section 409 I.P.C., by the trial court and released
on probation under Section 4 of the Probation of Offenders Act. As a result of this
conviction he was dismissed from service in April, 1964. The Supreme Court while
allowing the appeal, observed that in the instant case the crime was committed under
personal misery compounded by the appalling delays of law. The Court further observed
that a government servant convicted on criminal charge and released on probation, cannot
be said to be liable to be dismissed in view of Section 12 of the Probation of Offenders Act
which is a beneficial provision. The Court therefore, set aside the order of the High Court
of Delhi and reinstated the appellant in service.
In Iqbal Singh v. I.G. Police, Delhi,961 the accused a police head-constable was convicted
for an offence under Section 337 of IPC but was given the benefit of the provision of
Section 4 of the Probation of Offenders Act, 1958. Consequent to his prosecution, the
accused was suspended and subsequently dismissed from service on the ground of
conviction. The Delhi High Court observed that the words "disqualification if any,
attaching to a conviction of an offence" used in Section 12 of the Act would not include a
person's losing his right or qualification to remain or to be retained in service. According
to the High Court, Section 12 of the Act clearly saves the convict from suffering such
disqualification attaching to his conviction. In respect of his conviction, the accused had
the protection of Section 12 and he was saved from suffering any disqualification such as
the one which resulted in his dismissal.
Similarly, in Rajbir Raghubir Singh v. State of Haryana,962 the accused a Government
servant was convicted and placed on probation for good conduct under the Probation of
Offenders Act, 1958. It was held by the Supreme Court that in particular facts of the case,
the conviction should not affect his service.
In State (Assistant Inspector of Labour, Circle II, Nagar Coil v. S. Radhakrishnan,963 the
accused was convicted under Section 25 of the Tamil Nadu
Weights and Measures (Enforcement) Act, 1956, the Madras High Court allowed the
benefit of release on probation to the accused under Section 3(1) of the Probation of
Offenders Act and held that the release was not to constitute disqualification attached to
Section 12 of the Act affecting his service.
But in Hari Singh v. State of U.P.,964 it was held that benefit of probation extended to
the Government servant does not exonerate him from disciplinary proceeding only because
benefit of Section 4 has been given to him.
In the case of State of Karnataka v. M. Chandrappa and another} the State had filed an
appeal against the acquittal order passed by the High Court for release of the accused on
probation. But the Supreme Court dismissed the appeal and observed that it was a fit case
where accused could be released on admonition with direction that his conviction would
not suffer disqualification for holding post and continuing in service. In this case, the
accused assaulted a constable who was merely waiting for bus that would reach him to
Police Station. He was found guilty of offence under Sections 352 and 353, I.P.C. The
accused was a teacher who had come to know that there was some sort of enquiry against
him and this constable had enquired about him. Hence, seeing the constable he abused and
assaulted him under mental pressure. The Supreme Court held that the constable could not
961 AIR 1970 Del 240.

962 AIR 1985 SC 1278.
963 1989 Cri. LJ 1161 (Mad).
9641990 Cri. LJ 67 (All).
be said to be engaged in executing duty at the time of incident and therefore, the accused
was allowed the benefit of Section 3 of Probation of Offenders Act. Similar view was
expressed by the Supreme Court in Rajbir v. State of Haryana also.965
In Trikha Ram v. V.K. Seth* the Supreme Court reiterated that an offender convicted
for a criminal offence and released on probation cannot be dismissed by disciplinary
authority in view of Section 12 of the Probation of Offenders Act as it will operate as a
disqualification for future employment. Hence the dismissal of the accused was converted
into removal from service so that it may help the petitioner to secure future employment in
other establishment.
However, in Union of India and others v. Bakshi Ram,966 the Supreme Court observed
that release of offender on probation does not obliterate stigma of conviction. In the instant
case, the accused was dismissed from service in view of his conviction under Section 10 of
the Central Reserve Police Force Act and the court held that he was not entitled to
reinstatement in service upon getting the benefit of probation of good conduct under
Section 4 of the Probation of Offenders Act, 1958.
The Supreme Court, in this case pointed out that Section 12 of the Probation of
Offenders Act clearly directs that the offender "shall not suffer disqualification, if any,
attaching to a conviction of an offence under such law". But the section does not preclude
the Department from taking action for misconduct leading to the offence or conviction
thereon as per law. Therefore, Section 12 of the Act does not intend to exonerate the
person from departmental punishment. In result, the Supreme Court allowed the appeal
setting aside the order of the High Court and altered the punishment of dismissal to that of
removal from service so that it helps the appellant to secure employment elsewhere.
In Karam Singh v. State of Punjab and another,* the accused was a member of the
Punjab Police Force. He was convicted for the offence under Sections 302/34 and 324,
323, I.P.C. by the Sessions Court. In appeal, his convictions under Sections 302/34 and
324 was set aside but conviction under Section 323 was still maintained by the High Court,
which allowed the accused the benefit of being released on probation. Thereafter, the
accused sought reinstatement in service. The Police Dept, declined to reinstate him in view
of the provisions of rule 16.2(2) of Punjab Police Rules as he was already dismissed from
service. The accused challenged this order of the Punjab Police in the Supreme Court. The
Apex Court held that once the accused was convicted, it forms the basis for taking action
under proviso to Article 311(2) of the Constitution which will be subject to the ultimate
result of the prosecution case. If the case ends in favour of the accused and he gets
honourably acquitted, then the authorities are required to consider his reinstatement. In the
instant case, the accused is still convicted under Section 323 and it is a disqualification
though he was released on probation. Under these circumstances the ratio in Bakshi Ram's
case,967 would be applicable to this case. The Court therefore, dismissed the appeal but his
dismissal was converted into removal from service.
In Dunna Lai v. State of Uttar Pradesh,968 the Allahabad High Court held that when a
convict was placed on probation for good conduct, the employer should not terminate his
service on the ground of conviction during pendency of appeal against conviction. On
application by the employee, the employer should review order of termination when
probation is granted to the convict in appeal. Justice
S.I. Jafri of the Allahabad High Court observed, that "once a convict is placed on probation
for good conduct under the provisions of the Probation of Offenders Act, 1958, the
employee should not terminate his service by virtue of conviction."
965 AIR 1985 SC 1278.

9661990 Cr LJ 1013.
967 AIR 1990 SC 987.
968 1991 All LJ 48.
In Sunil Kumar Parida v. State of Orissa* the Supreme Court ordered the release of the
accused who had undergone a part of his imprisonment, giving him benefit of Sections 3
and 4 of the Probation of Offenders Act so that he could get the benefit of Section 12 of
the Act and may not be adversely affected by the disqualification attached with
imprisonment. The Court directed the accused to appear before the Sub-Divisional
Magistrate of Neelgirima and receive the probation order within six weeks.
Applicability of Probation Law in Public Welfare Offences
The judiciary has taken shifting stands in administering probation law to public
welfare offences such as food adulteration, smuggling and violation of customs and excise
laws, etc. A chronological survey of the cases relating to public welfare offences would
bear testimony to the fact that till early seventies, the courts responded favourably to the
inclusion of these offences within the purview of the probation law and were quite liberal
in admitting such offenders to the benefit of probation regardless of the age and nature of
the offence. This trend is clearly noticeable from the case law discussed in the succeeding
pages.
In Salem Govinda Chetty v. State of Andhra Pradesh,969 the accused was convicted under
Section 16 (1) read with Sections 7 and 2 (1) (g) of the Prevention of Food Adulteration
Act, 1954 for selling "Mysore Pak" adulterated with metanil yellow coaltar dye and kesari
dal, which was prohibited. Keeping in view the advanced age of 60 years of the accused
who was a petty shopkeeper, the learned Judge set aside the order of sentence passed by
the trial Court and released him on probation.
In yet another case, namely, Municipal Corporation, Delhi v. Rattan Lai970 the
respondent, on a complaint from the Municipal Corporation Delhi, was charged under
Section 7 of the Prevention of Food Adulteration Act, 1954, for selling adulterated cream-
biscuits and was convicted by the trial court for six months and a fine of rupees one
thousand or four months' simple imprisonment in default. On appeal, the Additional
District Judge upheld the sentence. The Municipal Corporation filed a revision to the High
Court for enhancement of the sentence of the respondent keeping in view the gravity of the
offence of adulteration. The respondent pleaded for the benefit of Section 4 of the
Probation of Offenders Act. Allowing the benefit of release on probation, the Supreme
Court observed that there was no legal bar to release offenders convicted for food
adulteration on probation under the Act.
Again, in Vishnu Moorthi v. State of Mysore,971 the Court observed that even in an
offence of smuggling which is an anti-social activity affecting the economy of the State,
the offender can be released on probation of good conduct if there are special
circumstances to believe that he has potentialities for reformation.
In re Oil case,972 the petitioner was guilty of an offence under the Gold Control Act,
1968 read with Section 61 of the Tamil Nadu Excise Act, 1971. Allowing the benefit of
release on probation, the Madras High Court observed that the petitioner in the instant case
was the first offender and the only bread winner of the poor family therefore, he could be
admitted to the benefit of Section 4 of the Probation of Offenders Act and the sentence of
imprisonment was set-aside.
In Rahmatulla v. State,973 the High Court of Karnataka ordered the release of the
appellant on probation despite the fact that minimum sentence of three month's rigorous
imprisonment and a fine not less than Rs. 100 was prescribed by (he Karnataka Excise Act
969 AIR 1970 AP 293.

970(1971) Cr LJ 1485.
971(1971) Mys LJ 451.
972 (1993) Cr LJ 544 (SC).
973(1978) Cr LJ 109.
for an offence under Section 32 of that Act.

The benefit of release on probation was also admitted to an accused who was
convicted for an offence punishable under Section 27 (a) (ii) of the Drugs and Cosmetics
Act, 1940. Taking a liberal view the Court in Delhi Administration v. Om Prakash,974 allowed
the benefit of probation to the accused with a note of caution as follows :
"The provisions of Section 4 of the Probation of Offenders Act
are applicable when a person is convicted under the Drugs and Cosmetics
Act. Although aware of the provisions of Section 27(a) of the Act, the
legislature did not in its wisdom exclude the application of the Probation
Act."
The Supreme Court in Arvind Mohan v. Anil Kumar Biswas975 decided whether the
offenders convicted under the Customs Act and the Defence of India Rules, 1962 could be
allowed the benefit of Probation of Offenders Act. Answering in the affirmative, the Court
observed that keeping in view the young age of offenders who were engaged in agriculture
and purpose of purchasing smuggled gold being marriage of the sister of the appellant, the
offenders could be released on probation and the High Court's contention that the
Probation of Offender Act has no application of offences involving contravention of the
Customs Act or Gold Control Rules contained in Part III of the Defence of India Rules,
1962 could not be accepted.
The historic decision in Ishwer Das v. State of Punjab,976 however, made a departure
from the Court's liberal approach to offenders found guilty of offences involving public
welfare. A tendency to keep such anti-social activities outside the purview of the probation
law is clearly noticed in the subsequent decisions. Although the Supreme Court allowed
the benefit of probation in the instant case, but leaving a note of caution, it observed :977
"Adulteration of food is a menace to public health. The Prevention of
Food Adulteration Act, 1954, has been enacted with the aim of
eradicating that anti-social evil and for ensuring purity in the articles of
food. The Courts should not lightly resort to the provisions of the
Probation of Offenders Act in the case of persons above 21 years of age
found guilty of offences under the Prevention of Food Adulteration Act."
In Jai Narayan v. Delhi Municipality,* the Supreme Court refused to release on
probation the offender who was found guilty of an offence of adulterating 'patisa' with
unpermitted coaltar dye on the ground that it was an anti-sodal activity which was
deleterious to consumer's health.
In the case of Ram Prakash v. State of Himachal Pradesh,978 the Supreme Court ruled that
there is no specific bar to extend the application of probation law to an offence under the
Prevention of Food Adulteration Act, 1954, but it could not be granted if the offender was
above twenty-one years of age.979 In this case, the appellant was convicted for selling
adulterated milk of cow and buffalo and was sentenced to six months' rigorous
imprisonment and a fine of rupees two hundred under the Preventic of Food Adulteration
Act. The High Court denied the benefit of probation to the appellant on the plea that
Section 4 of Probation of Offenders Act did not cover adulteration cases. The Supreme
Court, however, repelled this contention of the High Court and allowed the benefit of
probation to the appellant.
974(1975) Cr LJ 177.
975 AIR 1979 SC 1818 (1820).
976 AIR 1972 SC 1295.
977 AIR 1972 SC 1295.
978 AIR 1973 SC 780.
979 Obiter of Khanna J. in Ishar Das v. State of Punjab, AIR 1972 SC 1295.
In Piyarey Lai v. State,980 the High Court of Allahabad stressed that the courts should
not lightly resort to the provisions of the Probation of Offenders Act, particularly in case of
offenders above twenty-one years of age. The Court further observed that although the
application of Probation of Offenders Act is not expressly barred under the Prevention of
Food Adulteration Act, 1954, but the courts should not brush aside the consideration that
the sale of adulterated articles of food have deleterious reaction upon the public health and
therefore, should be sternly dealt with. In the instant case, the accused Piyarey Lai was
found guilty of the offence under Section 7 read with Section 16 of the Prevention of Food
Adulteration Act selling Kampats (a variety of sweets) which were coloured red, yellow,
orange and white by coaltar dye containing rhodamine. The argument of the accused that
he was not the manufacturer of the sweets and hence did not know about the impurity was
not accepted by the Court. Dismissing the revision filed by the revisionist, the Court
enhanced the sentence to six months with fine of rupees one thousand and in default to
further suffer rigorous imprisonment for six months.
The Supreme Court's decision in Pyarali K. Tejani v. M. R. Dange981 further supports the
judicial trend for cautious approach to the application of probation law to adulteration
cases. In this case, the accused was convicted for selling adulterated "supari" with
prohibited sweetner saccharin and cyclamate under the Prevention of Food Adulteration
Act, 1954. Disallowing the benefit of probation to the appellant, Mr. Justice V. R. Krishna Iyer
(as he then was) observed :—
"The kindly application of the probation principle is negatived by the
imperatives of social defence and the probabilities of moral
proselytisation. No chances can be taken by society with a man whose
anti-social operations guised as a respectable trade, imperil numerous
innocents. He is a security risk. Secondly, those economic offences
committed by white collar criminals are unlikely to be dissuaded by the
gentle probationary process."
In Public Prosecutor v. Nalan Suryanarayanamurthy982 the High Court of Andhra Pradesh
taking a strict view held that in a case where the activity of the accused was distinctly anti-
sodal, it would not be expedient to release the offender on probation. The accused in this
case was found guilty of the offence under Section 7 read with Section 16 of the
Prevention of Food Adulteration Act, 1954.
The Supreme Court took a firm stand in disallowing the benefit of probation to cases
involving smuggling activities. Thus in Maharashtra v. Natwar Lai,* the Court refused to
extend the benefit of Probation of Offenders Act to a person convicted for smuggling
under Section 135 (1) and (2) of the Customs Act, 1962 because smuggling of gold not
only affects public revenue and public economy but it is also a menace to society.
The above contention also finds support in the Supreme Court's decision in State of
Maharashtra v. Kapoor Chand Kesarmal Jain} In this case, the appellant aged 24 years at the
time of occurrence of crime, was tried for the offence of smuggling of gold and convicted
by the trial court. On appeal, the High Court ordered the appellant to be released on
probation for the reason that the gold recovered from his possession had already been
confiscated and that he had stood trial for a long period of more than seven years and that
he was financially not in a position to pay the fine imposed on him. The State of
Maharashtra, however, went in appeal to the Supreme Court against this judgment of the
High Court. Allowing the appeal, the Supreme Court observed that keeping in view the
nature of the offence, the character of the accused and the circumstances under which the
offence was committed, it was not desirable to allow the benefit of probation law to such
980(1977) Cr LJ 1034 (1036).

981AIR 1974 SC 288.
982 (1972) 2 APLJ 313.
professional offenders.
In a subsequent case, namely, State of Gujarat v. V. A. Chauhan,983 the Supreme Court
ruled that the benefit of probation cannot be extended to the accused convicted in an
offence punishable with imprisonment for life. In the instant case, the accused was
convicted under Sections 409, 467 and 471, I.P.C. and Section 5(l)(c) read with Section
5(2) of the Prevention of Food Adulteration Act, 1954. The High Court of Gujarat allowed
benefit of probation to the accused and he enjoyed the benefit for the past six years. In
appeal, the Supreme Court observed that "the benefit of probation cannot be allowed to an
accused convicted of an offence punishable with imprisonment for life but in the instant
case, as the respondent is already given the benefit of the Probation of Offenders Act, we
do not think it in the interest of justice to interfere with it at this stage, after so many years.
The appeal was therefore, dismissed and the High Court's decision was maintained by the
Supreme Court.
In M/s Precious Oil Corporation & Ors. v. State of Assam,984 the accused was convicted
for manufacture of lubricating oil and greases without licence under Section 3 of the
Essential Commodities Act, 1955 read with Sec. 7 of the Lubricating Oils and Greases
(Processing Supply & Distribution (Regulation) Order, 1987. His products and
manufactured oil and greases were found to be adulterated. The Supreme Court dismissed
the appeal of the appellant (accused) and denied him benefit of release on probation under
clauses (3) and (4) on the ground that his activity was anti-social and he was a potential
security risk.
The Apex Court in this case, inter alia observed :
"The Kindly application of the probation principles is negatived by the
imperatives of social defence and the improbabilities of moral
proselytisation. No chances can be taken by society with a man whose
anti-social operations, disguised as a respectable trade imperil numer as
innocents. He is a security risk. Secondly, these economic offences
committed by white collar criminals are unlikely to be dissuaded by the
gentle probationary process.985
The Court noted that the 47th Report of the Law Commission of India had also
recommended exclusion of the Probation Act to social and economic offences.
983 AIR 1983 SC 359.

984 AIR 2009 SC 1566.
985AIR 1980 SC 593.
An appraisal of the aforesaid cases involving socio-economic offences would reveal

a remarkable change in the attitude of Courts towards these crimes. The Courts, while
accepting in principle the need for liberal application of probation law, -have not lost sight
of the dangers involved in mild treatment of socio-economic offenders. These offenders
cannot be treated at par with other offenders in matters of punishment because of peculiar
nature of their offence and the consequences flowing there from. These offences being
injurious to public at large, need to be tackled sternly. Commenting on this aspect, Mr.
Justice V.R. Krishna Iyer, the former Judge of the Supreme Court of India observed .-986
"Economic offences are often subtle murders practised on the community,
sabotaging the national economy. They have to be tackled with a new
seriousness..."
The above cases make it abundantly clear that liberal and kindly application of
probation law to public welfare offences would hardly serve the ends of social justice. The
Law Commission in its Forty-seventh Report has also reiterated that the Probation of
Offenders should not be applicable to the socio-economic offences. The Commission, inter
alia, observed :—
"...the justification of all sentencing is the protection of society.
There are occasions when an offender is so anti-social that his immediate
and sometimes prolonged confinement is the best assurance of society's
protection. The consideration of rehabilitation has to give way because of
the paramount need for the protection of society."
No Probation for Convicted Corrupt Persons
The Supreme Court in State Supdtt. Police, New Delhi v. Ratan Lai Arora,987 categorically
refused to extend the benefit of release on probation to the offender convicted under the
Prevention of Corruption Act, 1988. The accused in this case was serving in DESU and
had been convicted for demanding and accepting bribe of Rs. 1,500/- from a consumer and
the trial Court had sentenced him to undergo rigorous imprisonment for 20 months and a
fine of Rs. 2,000/- for offences under Section 13(2) of the Act. The benefit of probation
had been extended to him by the High Court under Section 360 of Cr.P.C. because of his
being in adverse family circumstances and the sum accepted by him was paltry. The other
reasons given by the High Court were that the accused had retired during trial itself and
turned to be of 64 years of age and had already remained in jail for 22 days. The Supreme
Court held that all these reasons are not proper for going below the minimum sentence
prescribed for the offence but confined the awarded term of imprisonment to the period of
six months under Section 7 and one year under Section 13(2) of the Prevention of
Corruption Act, 1988, both the sentences were to run concurrently.
Again, in the case of N. Bhargavan Pillai (dead) by LR's and Another v. State of Kerala,988
the Apex Court ruled that the benefit of release on probation of good conduct cannot be
extended to an accused who is charged of misappropriation of property and corruption
under Sections 409 IPC read with Section 5(2) of the Prevention of Corruption Act, 1988.
In the instant case, the accused was working as Junior Manager on deputation in State
Civil Supplies Corporation and the stock in the godown in his charge was found short by
the vigilance department after due enquiry in the case. Meanwhile the accused retired from
service. He undertook to remit the value of shortage and deposited Rs. 50,000/- as part-
payment thereof. Since charges were proved against the accused, he was sentenced to
undergo RI for two years and to pay a fine of rupees one lakh with a default stipulation of
six months imprisonment. Since the accused died during pendency of the appeal, his legal
986 V. R. Krishna Iyer : Law, Freedom and Change, (1975), p. 88.

987(2004) 4 SCC 590.
988 AIR 2004 SC 2317.
representatives were impleaded for the payment of fine. The Court held that in view of the
specific bar under Section 18 of the Probation of Offenders Act, application of the Act is
clearly ruled out in cases of corruption covered under Section 5(2) of the Prevention of
Corruption Act, 1988. The appeal was therefore, dismissed.
The Supreme Court in State through Supdt. Police, New Delhi v. Ratan Lai Arora}
reiterated that the benefit of release on probation under Section 360 Cr.P.C. or Probation
of Offender's Act, 1958 cannot be extended to an accused who is convicted for an offence
under section 13(2) of the Prevention of Corruption Act, 1988. The Court clarified that so
far application of Section 360, Cr.P.C. is concerned, it cannot be invoked where the
Probation of Offenders Act, 1958 has been enforced and since the Act was already been in
force in Delhi, this section had no application. The order of the High Court of Delhi in
extending the benefit of probation under Section 360, Cr.P.C. was therefore illegal. The
Apex Court further noted that Sections 7 and 13 of the Prevention of Corruption Act, 1988
(49 of 1988) do not empower the Court to show any leniency in imposition of sentence
below the minimum stipulated. Therefore, order of the High Court granting benefit of
probation to the accused was liable to be set aside.
Age of the Offender
The question that often came up for consideration before the courts was whether the
age of the offender for the purpose of application of Section 6 of the Probation of
Offenders Act should be as on the date of commission of the offence or the date when the
offender is convicted. The phraseology used in Section 6(1) of the Probation of Offenders
Act, makes it clear that the age is to be reckoned at the time of the disposal of the case.
The decision of the Supreme Court in Ramji Missar v. State of Bihar989 supports this
contention. In that case, two brothers, Ramji and Baist, were convicted for offences of
attempted murder, grievous hurt and hurt under Sections 307, 326 and 324 IPC. The elder
brother Ramji was below 21 years at the date of occurrence but above 21 years at the time
of passing of the sentence. He was therefore, sentenced to two years' RI under section 324
of the Indian Penal Code. The younger brother, Baist who was 19 years of age, was
convicted of attempted murder and grievous hurt under sections 307 and 326, IPC and was
sentenced to 6 and 4 years' RI respectively. He could not be admitted to the benefit of
Probation of Offenders
Act because offences under Sections 307 and 326 are punishable with imprisonment for
life. Ramji was refused probation by the trial Court because his offence was premeditated.
On appeal, the High Court reduced the sentence of both the appellants but refused them
the benefit of probation. The Supreme Court, however, allowed both Ramji and Baist, the
benefit of probation since Section 6 of the Probation of Offenders Act was found
inapplicable, particularly in case of Ramji.
In a criminal appeal, namely, Rakesh alias Duro Pravinbhai Thakar v. State of Gujarat990
the High Court of Gujarat held that for enabling the accused convicted under Sections 17
and 18 of the Narcotic Drugs & Psychotrophic Substances Act, 1985, to avail the benefit
of Section 33 of the Act, the crucial age of eighteen years should be reckoned at the time
when the convict has committed the alleged offence. The crucial question for
determination before the Court was whether in order to earn benefit of Section 33 of the
NDPS Act, the crucial age of 18 years should be reckoned at the time when the convict has
committed the offence or at the time when the court is called upon to grant benefit of
probation under Section 33 or the NDPS Act. The Court held :—
"We are of the view that if at the relevant time when the alleged offence
was committed, the accused was under 18 years of age then in that case
989 AIR 1963 SC 1088.

9901995 (2) Crimes 129 (Gujarat DB) dedded on 2-3-1994.
merely because of the circumstances entirely beyond his control, viz., that
the trial could not be proceeded with as expeditiously as possible and
terminated within the stipulated period of under 18 years of the convict,
he cannot be blamed to deny his precious right of getting benefit of
probation available under section 33 of NDPS Act. Such a precious right,
as prescribed under the Probation of Offenders Act, can never be
permitted to be circumvented or short-circuited where the accused cannot
be said to be at fault and the trial gets protracted for unjust reasons."
The Supreme Court in State of Haryana v. Premchand} upheld the verdict of the Court
of Session that since the respondent was less than 21 years of age, the benefit of probation
could not be denied to him, particularly, when he was not a previous convict. In the instant
case, the accused who was above 16 years of age had committed an offence of attempt to
rape under Sections 376/511, IPC which attracted punishment only upto ten years and not
imprisonment for life. He was therefore, allowed the benefit of release on probation by the
trial Court under Section 360, Cr. P.C. or Section 4 of the Probation of Offenders Act,
1958. The Court of Session and the High Court declined to interfere and upheld the
decision of the trial Court. Thereupon, the State of Haryana went in appeal to the Supreme
Court against the sentence of the respondent's release on probation. The Supreme Court
dismissed the appeal and observed :
"If the conviction of the accused were to be one under Section
376,1. P.C., he could have been awarded imprisonment for life or
one extending to ten years. But the offence for which the respondent has
been found guilty, is for attempt to rape. Therefore, it is idle to contend
that the respondent has been
held guilty for an offence which would attract imprisonment for life,
disentitling him to the benefit of probation under Section 360, Cr.
P.C. or Section 4 of the Probation of Offenders Act.
Section 57, I.P.C. clearly points out that in calculating fractions of
terms of imprisonment, life imprisonment shall be reckoned as
imprisonment for 20 years. Thus, as provided under Section 511,
I.P.C., the punishment for the offence, for which an attempt has
been made, would be for a term which may extend to one-half of the
longest term of imprisonment provided for the offence. Therefore,
for offence under Section 376/511, I.P.C., the respondent could be
awarded imprisonment for 10 years. On this reasoning, his case for
probation is clearly made out and the appeal is dismissed."
Pre-sentence Report
The Probation Officer is said to be a linchpin in the operation of the probation
system. The pre-sentence report of the Probation Officer is the fundamental
document for the guidance of the Court whether to grant the benefit of probation to
the accused or not. The object of the pre-sentence report as provided in Section 7 of
the Probation of Offenders Act is to appraise the Court about the character of the
offender, exhibit his surroundings and antecedents and throw light on the background
which prompted him to commit the offence and give information about the offender's
conduct in general and chances of his rehabilitation on being released on probation.
The Supreme Court, in the case of Satto v. State of U.P,1 observed that "to deprive the
sentencing Judge of the use of the pre-sentence report, is to undermine the modem
penological procedural policies that have been carefully adopted."
It may, however, be stated that despite the requirement of presentation of pre-
sentence report by the Probation Officer under Section 7 of the Probation of

Offenders Act, the Courts generally have shown scant regard for the report because
of lack of faith in integrity and trustworthiness of the Probation Officers. In their
view, calling for the pre-sentence report would mean unnecessary delay, wastage of
time, undue exploitation of the accused by the probation officer and likelihood of
biased report being submitted by him which would jeoparadise the interest of the
accused and would be contrary to the object envisaged by the correctional penal
policy.
The attitude of the members of the Bar regarding provision relating to pre-
sentence report is also generally negative because of their vested interest. They
oppose the report on the ground that it is manipulated and wholly unreliable just with
the 'sole object of winning more clintage'. Obviously, the prejudice of the Bar for the
Probation officers and their pre-sentence report hampers the cause of probation
service to a considerable extent.
The Place of Probation in the Penal Policy
Probation as a correctional measure occupies an important place in reformative
justice. It seeks to reconcile the conflicting claims of "punitive" and "treatment"
reactions to crime. The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary help and guidance to the
probationer in his rehabilitation and at the same time the threat of being subjected to
unexhausted sentence acts as a sufficient deterrent to keep him away from
criminality.
Probation is useful to society in general and to the offender in particular. It also
enables the probation officer in getting deeper insight of the problem of criminals. It
would therefore, be convenient to assess the utility of probation as a punitive reaction
to crime under the following heads :—
1. Utility of probation from the point of view of the delinquent.—The system
of probation helps the delinquent in rehabilitating himself as a law abiding member
of society. It serves the needs of the probationer in the following manner :—
(i) Probation keeps the offender away from the criminal world. If the
delinquent is set at liberty without adequate guidance and supervision,
he is inclined to feel that his delinquent conduct has been accepted by
society and he will continue his criminal activities unfettered.
(ii) The fear of punishment in case of violation of probation law has a
psychological effect on the offender. It deters him from law-breaking
during the period of probation. Thus, probation indirectly prevents an
offender from adopting a revengeful attitude towards the society.
(iii) Probation seeks to obviate the evils of institutional incarceration and
prevents the offender from contamination and conforming to a criminal
career. Moreover, sentencing an offender to a term of imprisonment
carries with it a stigma which makes his rehabilitation in society
difficult. The release of the offender on probation saves him from
stigmatization and prepares him for an upright living.
(iv) Probation seeks to socialise the criminal as the liberty which he enjoys
during the probation period enables him to pick up those life-habits
which are necessary for a law-abiding member of the community.
(v) Probation enables the offender to attend to his domestic obligations and
thus, contribute to support his family financially by taking up suitable
work according to his capability.
(vi) Probation enables the offender to rehabilitate himself through his own
efforts. This inculcates a sense of self-sufficiency, self-control and self-
confidence in him which are undoubtedly the essential attributes of a

free-life.
(vii) Before the implementation of probation law, the courts were often
confronted with the problem of disposing of the cases of persons who
were charged with neglect of their family. In such cases, there was no
alternative but to send them to prison which was an unnecessary burden
on the State exchequer. With the introduction of probation as a method
of reformative justice, the courts now admit such offenders to probation
where they are handled by the competent probation officers who impress
upon them the need to work industriously and avoid shirking their family
responsibilities.
2. Utility of probation from the stand-point of Society.—Besides the
delinquent, probation also serves a useful purpose for the society as a whole.
(i) It is well known that the interests of society are best served when all its
members play a positive role by seeking their self-rehabilitation. Since
this object is fully achieved by the probation system, it is indeed an
effective method of preserving social solidarity by keeping the law-
breakers well under control.
(ii) During the probation period, the offender is sent to various educational,
vocational and industrial institutions where he is trained for a profession
which may help him in securing a livelihood for himself after he is
finally released. This enables him to lead an upright life.
(iii) Whatever work an offender is doing as a probationer, he is contributing
to the national economy and he no longer remains a burden on society.
3. Utility of probation from the point of view of Probation Officer.—
Correctional task of the probation staff requires closer contact with inmates during his
period of probation. This helps the probation supervisor to get a deeper insight into
the real causes of crime and suggest remedies for their eradication. The system of
probation enables these officials to approach the problem of crime in a practical
manner. It provides an excellent opportunity to the probation personnel to serve the
community as also the nation. Commenting on this aspect, J. L. Gillin rightly observed
that probation system if properly administered, can assist the Judge in socialising
criminal procedure. If probation officers furnish correct information to the Court
about the convicted persons through a careful pre-sentence investigation, the Judge
may individualise the treatment with greater exactness.991
The release of offenders on probation as a reformative measure is indeed a
milestone in the progress of modem liberal trend in the field of penology. Probation
as a measure of rehabilitation shifts the emphasis from deterrence to reformation and
from crime to criminal in accordance with the modem reformative trends of
punishment. The keynote of the Probation of Offenders Act, 1958 is "reformation and
rehabilitation of the offender through the process of individualisation."992
Major Functions of the Probation Officer
The relationship between probation service and the delinquent in correctional
field implies that a probation officer should have a thorough understanding of the
following issues :
(i) the legal implications involved in the case of delinquent to be released on
probation and functions of various personnel and major policy issues
991 Gillin, J. L, : Criminology and Penology, (3rd Ed.) p. 321.

992 Raghumth v. Mrs. T. P. Faria, AIR 1967 Goa 95.

involved in the system of probation ;
(ii) information about offender's antecedents and social and personal
problems leading to his delinquent act. The probation officer should also
be in a position to analyse the personality disorders represented by the
offender and the sub-culture characteristics of his group ;
(iii) attitudes of the delinquent and his readiness to co-operate with the
probation staff;
(iv) knowledge about the functions and responsibilities as a probation officer
and ability to make use of his authority for exercising control over
probationers.
The probation officers employed in correctional services play a vital role in
bringing about the rehabilitation and reformation of offenders and resocialising them
as useful members of society. The major functions of a probation officer may be
(1) Investigation and surveillance.—A thorough inquiry into the life history
and antecedents of the delinquent is necessary for the purpose of securing
information about his failures or successes in meeting the obligations of his legal
status. Proper investigation and surveillance will enable further imposition of
restrictions on liberty of the delinquent, in case he does not respond favourably to the
treatment process.
(2) Use of professional control to modify offender's behaviour.—This again is
a part of the commonly recognised process of professional control based on the force
of State. The control administered by the probation officials over the probationers
under their charge may include :—
(i) revocation of probation order ;
(ii) reporting to the appropriate judicial or administrative authorities the
behaviour which constitutes violation of law ;
(iii) making scheduled and unscheduled visits to the place of delinquents ;
and
(iv) assisting the authorities in making arrest of the delinquent who has
proved a failure in the process of probation.
(3) Acting as a legal authority in delinquent's life with responsibility for value
change.—This task has important bearing upon the treatment relationship. The
probation officials have to associate themselves closely with the delinquent and make
use of their legal authority to ensure correctional treatment of delinquent through
rehabilitative methods. They should proceed with the basic assumption that
delinquent is not one who is to be changed but one whose value considerations need
to be changed.
(4) Decision making.—This is one of the most important functions to be
performed by probation authorities in dealing with probationers. While taking
decisions the probation officials should bear in mind that they are of major
importance to the delinquent as also to the community insofar as they affect the
freedom of offender on the one hand, and safety of the community on the other.
These decisions usually involve calculated risks and must therefore, be exercised
with utmost caution.
According to David Dressier, the functions of Probation Officials involve four
major techniques to be employed for effective supervision over
probationer.1 They are :—

1. Manipulative Technique.—An effort is made to make the offender's
environment more conducive in terms of cordial family relationship, employment,
social adaptability etc. by adopting this technique.
2. Executive Technique.—By employing this technique, the probation/parole
officer helps the offender by referring him to appropriate welfare agencies or social
service organisation or recreation homes etc.
3. Guidance Technique.—The probation official renders assistance and guidance
to his client by using his professional skill. This technique helps the probationer to
develop his personality through self-help, self-reliance and self-discipline.
4. Counselling Technique.—The probation officer utilises this technique in
solving the personality problems of the probationers and rendering them necessary
advice in times of need.
The success of the probation programme largely depends on the quality of
probation staff deployed to handle the offenders who are released on probation. The
probation agents should not only be well trained and skilled but they should also
have adequate time to devote to the probationers. Unfortunately, the situation in
India in this regard is far from satisfactory because of lack of desired awareness
about the probation scheme and the personnel deployed for probation services doing
their job just in a routine manner.
Critical Appreciation Probation as a Correctional Measure
It has now been universally accepted that in order to achieve progressive
correctional standards there must be added emphasis on probation. Its exponents
must interpret the philosophy underlying probation more clearly and initiate a
definite campaign of education that will break down prejudices against correctional
methods and explain their wider objectives.
It must not be forgotten that there are always some pitfalls in best of the
systems which may pose a threat to the system itself. However, this should not
discourage our efforts. Needless to say that probation as a method is much more
cheaper and effective than incarceration. It is a modem technique in the field of
correctional therapy993 which must be used extensively for treatment of offenders.
There are some critics who look probation as a form of leniency towards the
offenders. To quote Dr. Walter Reckless, "probation like parole, seems to the average
laymen a sap thrown to the criminal and a slap at society."994 Some scholars criticise
probation because it involves undue interference of non-legal agencies in the judicial
work which hampers the cause of justice.
Despite the criticism of probation from certain quarters, the fact remains that it
is perhaps the only reformative technique which fully endorses the cause of human
dignity. Probation, in fact, is an opportunity to an offender to "struggle to recapture
self-respect". It lays greater emphasis on individual rather than his act and desires
that potentialities of the offender for rehabilitation must be thoroughly explored
before admitting him to the benefit of probation. It is therefore, abundantly clear that
the system of probation is fully in conformity with the modem reformative trends of
punishment.
In spite of the merits of the probation technique, there are certain pit-falls in the
system which also need to be mentioned. They are :—
(1) The advocates of probation system assert that this correctional method
993 Barnes and Teeters : New Horizons in Criminology (3rd Ed.), Chapter on Probation.
994 Dr. W.C. Reckless visited India in 1952 on the invitation of the Government of India and
surveyed the entire field of correctional administration and gave a valuable report on Probation
and allied services.

of treatment of criminals being compatible with the advances in social
and medical science, is the only scientific approach and hence the
concept of punishment must be modified, if not dissipated. This logic
really destroys the very foundation of our present sentencing justice.
Keeping in view the increasing crime rate and its frightening
dimensions, undue emphasis on "individual" offender at the cost of
societal insecurity can hardly be appreciated as a sound penal policy.
(2) Probation system lays greater emphasis on the offender and in the zeal
of reformation, the interests of the victim of the delinquent's act are
completely lost sight of. This obviously, is against the basic norms of
justice.
(3) Admitting all young offenders and first offenders to probation regardless
of their antecedents, personality and mental attitude, might lead to
recidivism because many of them may not respond favourably to this
reformative mode of treatment. Section 3 of the Probation of Offenders
Act, 1958 provides that the Court at its discretion, can order
unsupervised release of the offender after due admonition in offences
such as theft, cheating etc. This section does not require the Court to call
for a pre-sentence report from the probation officer. As such, the Court
does not possess necessary information regarding character and
antecedents of the offender. As a result of this, there is possibility of
dangerous offenders being released under this provision which may
defeat the very purpose of corrective justice.
(4) In many cases, it is difficult to ascertain whether the delinquent is a first
offender or a recidivist. Therefore, there is a possibility that an offender
who is otherwise a recidivist, might be admitted to probation and he
may not respond favourably to this correctional technique.
(5) Section 4 of the Probation of Offenders Act, which is a key section of
the Act, does not make supervision of a person released on probation
mandatory when the Court orders release of a person on probation on
his entering into a bond with or without sureties. This is not in
accordance with the probation philosophy which considers supervision
essential in the interests of the offender.
(6) Although Section 6 of the Act requires the Court to take into
consideration the probation officer's report when decision to grant or
refuse probation to an offender who is below 21 years is to be
taken, but many a times courts do take decision without such report. This
is again, against the spirit of the philosophy enshrined in the Probation
Act.
(7) Perhaps the lack of real interest for social service among the probation
personnel presents a major problem in selecting right persons for this
arduous job. Prof. Chute attributes lack of properly qualified personnel,
want of adequate supervision and excessive burden of case-work as the
three major causes of inefficiency of the probation staff. Particularly, in
India, probation is reduced to a mere farce and the correctional task is
being handled by persons who are mostly inexperienced and inadequately
trained for this work. The lack of enthusiasm for social service and
inadequate resources for implementation of probation programme are
perhaps the two main causes of slow progress of probation service in
India.
As rightly pointed out by Donald Taft, the acid test of success or failure of
probation is its effect on recidivism.1 But this test can never be accurately carried out
because of a variety of other factors influencing criminality and the quality of
probation also varies according to time and place. It is generally agreed that probation
is one of the most promising methods of protecting society against crime and
criminals. Studies on probation have shown that the advantages of this correctional
method far outweigh its shortcomings. A case study conducted by Morris Caldwell on
1800 probationers during his period of probation supervision reveals that a total of
only 23.1 per cent either violated probation law or absconded. This fairly
demonstrates the success of probation as a method of reforming the offender within
the community itself.2
Some Useful Suggestions
Be that as it may, it has generally been agreed that probation serves as a potential
measure of social defence for reformation of offenders. It has now been accepted as
the most significant contribution to the new penological practices which is expected
to endure, while other methods of treatment may undergo changes beyond
recognition. Probation, together with the juvenile court system, has brought to the
forefront, the personal needs and social problems behind the concepts of crime and
punishment. It has helped in creation of new attitudes towards offenders and extended
the function of criminal justice administration beyond traditional sentencing.
However, with a view to making the system more effective and efficient, the
following suggestions may serve a useful purpose :—
(1) Probation must be based on thorough investigation into the case-history
of the offender and the circumstances associated with his crime. While
treating the probationer, his physical traits and psychological conditions
must be thoroughly considered. It must be remembered that
individualised^ method of treatment essentially implies differed
treatment of offenders according to their individual needs and
personality. This is an important factor in the process of
1. Taft and England : Criminology (4th Ed.), p. 390.
2. An article entitled, "What is Responsible for Probation and Post-probation Outcome?"
published in the Journal of Criminal Law and Police Science (March-Apl. 1957) pp. 667-76.
564 Criminology and Penoiogy
probation.
(2) Prediction Tables should be compiled and used for planning probation strategies.
Such tables may help in anticipating the probable result of correctional treatment
on different offenders. Prediction Tables are being extensively used in the
treatment of probationers in United States and they have proved immensely
helpful in estimation of offender's personality for individualised treatment.
(3) The merger of juvenile courts with those of family courts seems to be an
expedient policy because both of them perform functions which are quasi-
parental in nature.
(4) The success or failure of probation in case of juvenile delinquent largely depends
on his home conditions and family surroundings. Experience has shown that
juveniles from broken homes show scant regard for rehabilitative processes
while those having good family background respond favourably to the
correctional methods of treatment under probation.
(5) The provision contained in section 5 of the probationer of Offenders Act which
provides for compensation by the probationer to the victim of his crime is kept in
suspended animation. The Court should make extensive use of this provision in
view of the emerging trends in victimology and it should be made obligatory for
the court to record special reasons for not passing order for victim's
compensation.
(6) Excessive control and supervision on delinquent tends to make him hostile
towards the probation personnel and he may adopt an attitude of indifference and
non-co-operation towards them. Obviously, no one likes to be kept under
constant surveillance. Conversely, slackness in supervision may also lead to
equally fatal consequences which might retard the progress of delinquent under
probation. Therefore, a sturdy policy of mutual trust and non-interference with
natural processes of growth of the probationer appears to be the best policy so far
treatment of offenders under probation programme is concerned. This will enable
the probationer to develop the qualities of self-help, self-respect and self-
confidence in him. Supporting this contention, Donald Taft rightly suggests that
probation should utilise a balance of watchful control and constructive aid
adapted to the individual needs of the offender.
(7) Recidivists have often proved a failure in the process of probation. It has
therefore, been generally accepted that probation should only be confined to the
cases of juveniles, first offenders and women offenders. Women delinquents
have shown better propensity for rehabilitation and adjustment as compared with
their male counter-parts. It is equally desirable to draw a distinction between a
casual or incidental offender and a professional criminal for this purpose.
Probation is best suited in the case of the former while ill-suited for the latter.
(8) It is generally argued that the system of probation involves discriminatory
processes and therefore, violates the constitutional provisions contained in
Articles 15 and 21 of the Constitution of India. To obviate this charge, it is
suggested that a minimum and maximum limit of sentence may be prescribed
under the law and release of delinquent on probation should be in between these
two extreme limits depending on his corrigibility and response to correctional
treatment.
(9) Though probation as a punitive reaction to crime is extensively being used in
India, yet there is an urgent need to extend the system to rural courts where there
is general lack of social agencies to undertake the task of rehabilitation of
offenders. There are reasons to believe that rural delinquents shall be more
responsive to this correctional method of treatment than the turban offenders
because of their relatively simple life-style.
(10) The quality of probation service must be improved by making the service
conditions of the probation staff more lucrative. This will attract well-qualified
and competent persons to the profession. The probation personnel ought to be

specially trained so that they can discharge their duty as probation officer
competently.
(11) A nation-wide uniform scheme of training for probation personnel with
emphasis on social-work and rehabilitative techniques would serve a useful
purpose to improve the efficacy of probation service in India. The probation
officers should possess legal qualifications so that they are well conversant with
technicalities of law and procedure involved in the process of release of
offenders on probation. Since the probation work is quasi-judicial in nature, the
incumbents to probation service must be duly qualified in legal and social
welfare work.
(12) At present, the work of probation is assigned to different departments in various
States. In some States probation service is placed under the Social Welfare
Department while in others it functions under the Panchayat Department or the
Home Department. It is advisable to have an independent Department of
Correctional Services on the pattern of the State of Gujarat at the national level
to exclusively deal with rehabilitation of offenders, of which probation is one of
the techniques.
(13) It would be useful to organise probation on national level under State tutelage.
International conferences and seminars on probation and its related aspects may
help in popularising this reformative method of treating the delinquents. The co-
operation of different social agencies such as the schools, the family, the
religious institutions and other voluntary organisations including Scout-Guides,
Girl-Guides, Salvation Army, Welfare Boards, Mahila Ashrams, Nari-Niketans
etc. should be solicited so that rehabilitation of offenders may be possible within
the society itself.
Probation as a measure of social defence must involve active participation of
voluntary workers and social service organisations. Public representatives should be
included in the district-level Correctional Advisory Boaids or Probation Advisory
Committees, and their co-operation in finalising schemes regarding rehabilitation of
probationers, supervision of parolees and after-care of released prisoners be solicited.
The National Conference on Probation and Allied Measures held in India in October,
1971 identified the need for co-ordinated voluntary action in correctional field at the
district, State and national level. The assistance from the Central Bureau of
Correctional Services, Government of India may strengthen the probation programme
in the field of social defence.
It must be stated that during recent years most countries of the world are
presently striving hard to evolve out an efficient system for treatment of offenders.
Commenting on global efforts to popularise probation as a reformative method of
treatment of offenders, Torston Erkinson, the Director-General of Swedish Prison
Board observed that the task of correctional system is twofold, namely, to prevent the
society from dangerous criminals and to rehabilitate these criminals so that they can
return to society as law abiding citizens.995 Considered from this standpoint,
probation as a correctional measure should provide useful after-care to the offenders
and a satisfactory security to the society. To achieve this objective, it is desired that
correctional system should not only be confined to probation officers of the Courts
but must also seek active participation of publicmen in treatment of offenders. This
will help to soften the attitude of common men towards criminals and they would
learn to recognise the worth of a human being underneath the offender. For example,
the Swedish courts have sought to integrate the treatment of offenders with the social
order by associating committees of laymen with courts to help the Judges in
X. Dr. Paranjape N. V. : Law Relating to Probation of Offenders in India, (1988 Ed.) p. 16.
Public Participation in Probation Service

recording decisions. This collaboration of lay citizens with the functioning of court
has tended to create an atmosphere conducive to the reformation of offenders. In
United States, many respectable citizens associate themselves with the problems of
inmates and help and advise the latter in the capacity of "Big Brother" or "Big Sister".
They visit correctional institutions meant for young offenders to acquaint themselves
with the problems of inmates and render them all possible help and guidance.
It is rather disappointing to note that participation of public in the correctional
programme for offender's reformation is completely wanting in India. Though efforts
are being made to narrow down the gap between the restricted life of the prison and
free life outside it by resorting to open institutions for inmates, the lack of active
public participation hampers the success of these measures. The offenders who are
not a potential risk to society are being released on furlough and parole after they
have undergone a certain period of imprisonment. Yet, there is greater need for active
public co-operation in the field of probation as the offender has to seek his
reformation within the society itself and the probation officers are merely to help him
occasionally at certain stages.
Experience with probation in India has not been very encouraging. The
application of probation service in this country has rather been fragmentary and
therefore, ineffective. Barring a few States, notably, Maharashtra, Gujarat, Tamil
Nadu and Andhra Pradesh, probation has remained a matter of speculation and rare
application. Adult probation, in particular has remained fairly neglected and needs to
be implemented with rigour and attention. It is high time when working of probation
in India must be restructured to make the system more effective and result-oriented.
The success of probation as a non-institutional therapeutic measure would
mainly depend on its cautious extension and judicious adaptation to adults. A well
organised team of trained probation personnel having aptitude and real zeal for this
kind of work and active co-operation of various agencies such as welfare boards,
voluntary social workers and correctional institutions can certainly make probation a
real success in India. It should, however, be remembered that mere letting off by the
Courts to keep convicted persons out of penal institutions would not serve any useful
purpose unless adequate alternatives for those who need a measure of restraint for
their own reformation as also for the security of the public are embodied in the
scheme. The reform and rehabilitation processes have to be worked out in context of
existing social conditions and for the benefit of the society as a whole. If reformation
in fact benefits the society, the conscience of social justice would be satisfied. But if
the reformation confines to the benefit of the individual offender alone, social justice
shall remain suffocated. This sound note of warning should be the guiding theme of
probation scheme which is essentially a part of reformative justice.1
Chapter XXIV
Juvenile Delinquency
About two centuries ago, Adolphe Quetelet, the eminent Belgiam social
statistician observed that adolescents, particularly the young males are prone to crime,
disorder and delinquency because of their childish impulsiveness or adolescent
conflict. To quote him, "the propensity to crime is at its maximum at the age when
strength and passions have reached their height, yet when reason has not acquired
sufficient control to master their combined influence". Since a nation's future depends
upon young generation, the children deserve compassion and bestowal of the best
care to protect this burgeoning human resource. A child is born innocent and if
nourished with tender care and attention, he or she will blossom with faculties
physical, mental, moral and spiritual, into a person of stature and excellence. On the
other hand, noxious surroundings, neglect of basic needs, bad company and other
abuses and temptations would spoil the child and likely to turn him a delinquent.996
Therefore, expressing his concern for child-care, the noted Nobel Laureate Gabrial
Mistral long ago observed :
"We are guilty of many errors and many faults, but our worst crime
is abandoning the children, neglecting the foundation of life. Many
of the things we need can wait, the child cannot, right now is the time
his bones are being formed, his blood is being made and his senses
are being developed. To him, we cannot answer 'tomorrow'. His
name is 'Today'."
Our children being an important asset, every effort should be made to provide
them equal opportunities for development so that they become robust citizens
physically fit, mentally alert and morally healthy endowed with the skills and
motivations needed by society.997
- Radzinowicz observed that neglected children and juveniles fall an easy prey to
criminality. He asserted that the adolescents claim the highest share in violence due to
their dashing nature, lack of foresight, uncritical enthuasiasm, physical strength,
endurance and desire for adventure.998
It must be conceded that the over-flowing criminality of youth cannot be
attributed to biophysical factors alone. There are other influences such as population
explosion, social, economic and political changes, pattern of education, etc., which
account for the growing incidence of juvenile delinquency, particularly, in developing
and third-world countries. The problem has assumed alarming dimensions in recent
years.
The early penology did not recognise any discrimination between adult and
juvenile offenders so far punishment was concerned.999 The problem of juvenile
delinquency is therefore, essentially of a recent origin. The youngsters between a
certain age-group are easily attracted to the temptations of life and lend into
criminality. As is often said, the child of today is the citizen of tomorrow, the
criminal tendency in youngsters must therefore, be timely curbed so that they do not
turn into habitual criminals in their future life. It is with this end in view that most
countries are presently tackling the problem of juvenile delinquency on priority basis.
996 Justice V. R. Krishna Iyer 'JURISPRUDENCE OF JUVENILE JUSTICE : A PREAMBULAR

PERSPECTIVE'—Souvenir of the International Conference on Shaping The Future of Law
hosted by the Indian Law Institute, Delhi on 21-25 March, 1994.
997 Ibid.
998Radzinowicz & Joan King : The Growth of Crime (1977) p. 17.
999 Sen P. K. : Penology Old & New, p. 149.

Many of them have established separate juvenile courts to deal with young offenders
and the procedure adopted in these courts radically differs from that of a regular trial
courts.
In India, special provisions providing for the care, protection, treatment,
development and rehabilitation of neglected or delinquent juveniles and their trial
and disposition are enacted under the Juvenile Justice (Care & Protection of
Children) Act, 20051000 which are uniformly applicable throughout the country
excepting the State of Jammu & Kashmir.
Movement for Juvenile Justice
The movement for special treatment of juvenile offenders started towards the
end of eighteenth century. Prior to this, juvenile offenders were dealt with exactly
like those of adults. They were prosecuted in criminal courts and were subjected to
same penalties as adults. That apart, they served their sentence in the same prison in
which other hardened criminals were lodged. The obvious result of lodging juveniles
and habitual offenders in the same prison was that these institutions virtually turned
into breeding centres of vices and criminality. The greater evil of the system was that
it exposed young offenders to contamination due to their incarceration with other
criminals.
The period of industrialisation did not bring any remarkable change in the
attitude of reformists towards the young offenders. Juveniles were nothing more than
a pawn in the game of trade. They were even sold as slaves for menial work.
However, the wave of liberalism and legislative reforms during the mid-eighteenth
century brought in its wake a radical change in the attitude of law reformists towards
young offenders. They drew the attention of penologists towards the fact that what a
child requires is not so much of reformation as formation.1001
The crusade against harsnness towards young offenders began in 1772 when
certain special concessions were granted to juvenile delinquents in civil matters, such
as probate, gift and will, etc. The adoption of the principle of parans patriae evolved
by Court of Chancery1002 in England necessitated special provisions for handling the
estates of minors as they could not manage their property themselves. Similar
concessions were later extended to children under the law of crimes and finally the
problem of juvenile delinquency emerged as an independent movement. In modem
era, the penal laws of most countries have adopted the principle that a child below a
certain age1003 is doli incapex, that is, incapable of committing a crime, and hence
cannot be convicted ; whereas a child between the age of seven and twelve can only
be convicted if he has attained sufficient maturity of understanding to judge the
nature and consequences of his conduct on that occasion.1004 This age range,
however, varies from country to country. Thus, the age of responsibility in France
was previously sixteen years which is now extended to eighteen years while under
the Roman law, it is the age of attainment of puberty.
Juvenile Delinquency—What it means ?
Etimologically, the term 'delinquency' has been derived from the latin word
delinquer which means 'to omit'. The Romans used the term to refer to the failure of a
person to perform the assigned task or duty. It was William Coxson who in 1484, used
the term 'delinquent' to describe a person found guilty of customary offence. The
1000 For the Text of the Act, see Appendix VI.

1001 Fitzgerald, P. J. : Criminal Law and Punishment, (1962), p. 260.
1002 Eyre v. Shaftesbury. (1772) 24 ER 659.
1003 Section 82 IPC provides that a child below the age of seven is doli incapex.
1004 Section 83.
Juvenile Delinquency 569
word also found place in Shakespearean famous play 'Macbeth' in 1605. In simpler
words it may be said that delinquency is a form of behaviour or rather misbehaviour
or deviation from the generally accepted norms of conduct in the society.
However, penologists have interpreted the word "juvenile delinquency"
differently. Generally speaking, the term refers to a large variety of disapproved
behaviours of children and adolescents which the society does not approve of, and for
which some kind of admonition, punishment or corrective measure is justified in the
public interest. Thus, the term has a very extensive meaning and includes rebellious
and hostile behaviour of children and their attitude of indifference towards society.
Certain other acts such as begging, truancy, vagrancy, obscenity, loitering, pilfering,
drinking, gambling etc. which vicious persons very often commit are also included
within the meaning of the term juvenile delinquency.1005 It may therefore, be inferred
that a juvenile is an adolescent person between childhood and manhood or
womanhood, as the case may be, who indulges in some kind of anti-social behaviour,
which if not checked, may turn him into a potential offender.1006
Expressing his view on juvenile delinquency, Albert Cohen observed that the
only possible definition of delinquency is one that relates to the behaviour in question
to some set of rules. The rules themselves are a heterogeneous collection of
regulations, some common to all communities and others only to be found in one or
two.1007 Caldwell prefers to leave the term vague and includes within it all acts of
children which tend them to be pooled indiscriminately as wards of the State.1008
Mrs. Ruth Shonle Cavan (USA) observed that "irrespective of legal definition, a
child might be regarded as delinquent when his anti-social conduct inflicts suffering
upon others or when his family finds him difficult to control and he becomes a
serious concern of the community."
Some critics argue that the statutes defining the various delinquent acts are
vague in terms of their contents because they are contrary to the fundamental
principle of criminal law as expressed through the latin maxim nullum crimen sine lege,
which means an act cannot be a crime unless it is so defined under the existing law.
The idea is that there should be certainty about acts which are prescribed as crimes.
For example, a child or an adolescent who is growing up in idleness or wanders about
the street in late night without any purpose or is habitually disobedient or
uncontrolled, is deemed to be a delinquent under certain statutes. This is obviously
not in strict accordance with the definition of crime but such conducts are still treated
as delinquent acts under the statutes relating to juveniles because they are created not
to punish them but to keep them away from such indecent and lascivious conducts
which are detrimental to the development of their personality.
In a broad generic sense, juvenile delinquency refers to "a variety of anti-social
behavior of a child and is defined somewhat differently by different societies, though
a common converging tendency may be noted in those forms, namely, socially
unacceptable tendency of the child at any given time."
It may be noted that a great variety of acts included within the term 'juvenile
delinquency' are otherwise non-criminal in nature and are freely tolerated, if done by
adults. For example, smoking, drinking or absenting oneself from home may be a
permissible conduct for adults but the same is treated as a delinquent act, if
committed by children or adolescents.
1005 Sethna, M. J. : Society and the Criminal (2nd Ed.), p. 329.

1006 It is suggested that this definition of juvenile delinquency is generic rather than specific and
therefore, it might be regarded as incompatible with the fundamental principle of criminal law
which requires a distinct breach of law.
1007 Cohen Albert : "Delinquent Boys", p. 3.
1008 Caldwell : Criminology, p. 375.

It is sometimes argued that delinquency is not a criminal status. But this view
has been repelled by Paul W. Tappen who asserts that euphemistic terminology such
as "hearing" instead of "trial", or "disposition" instead of "sentence" should rot
conceal from us the fact that nature of entire procedure may be little different from
that of a criminal court, but it may be even worse, for it may abandon the
fundamentals of justice in the guise of promoting superior justice.1009
The question of exact definition of juvenile delinquency has always remained a
debatable issue among criminologists. It has been engaging the attention of United
Nations for quite some time. The Second United Nations Congress on the Prevention
of Crime and the Treatment of Offenders held in August, 1960 in London, took up
the problem of juvenile delinquency, and the concensus was that the issue of
definition need not be stretched too far and the meaning of the term 'juvenile
delinquency' be restricted to all violations of criminal law and maladjusted
behaviours of minors which are disapproved by society.
The General Assembly of the United Nations adopted the Convention on Rights
of the Child on 20th November, 1989 which prescribed a set of standard to be
adhered to by all the State parties in securing the best interest of the child.
1009 Tappen Paul, W. ; Juvenile Delinquency, p. 170.

T \siH uii ivsivy j aii u § yy
The Convention also emphasised on social reintegration of child victims, to the extent
possible, without resorting to judicial proceedings. The Government of India ratified
the Convention on 11th December, 1992 and therefore, it became expedient to re-
enact the Juvenile Justice Act, 1986 to meet the requirements of the standard
prescribed by the Convention on the Right of the Child and all other international
instruments. It is in this backdrop that the Juvenile Justice (Care and Protection of
Children) Act, 2000 was enacted repealing the Juvenile Justice Act, 1986.
In the Juvenile Justice (Care and Protection of Children) Act, 2000, the term
'delinquent juvenile' used in the earlier Juvenile Justice Act, 1986 has been substituted
by the words 'juvenile in conflict with law.'1010 It is therefore, obvious that every
conduct prohibited by statute is not to be taken as an act of delinquency. Instead, the
conduct which tends to constitute an offence, not only from the legal standpoint but
also from the angle of prevalent social norms and values shall be included within the
meaning of the term 'delinquency'. For example, smoking, begging, vagrancy, etc.
being harmful for the growing children are intended to be controlled by the
enforcement of the Act.
Similarly, the children who are incorrigible, uncontrollable, destitute or orphans
etc. and need active support and care of the community, and who were termed as
'neglected children' under the repealed Juvenile Justice Act of 1986, have been called
as 'children in need of care and protection',1011 under the Juvenile Justice (Care and
Protection of Children) Act, 2000 which came into force on December 30, 2000.
Under the Act, 'juvenile' or 'child' means a person who has not completed eighteenth
year of age, be he a boy or a girl.
Causes of Juvenile Delinquency
Juvenile delinquency has become a global phenomenon in modem times.
Despite intensive rehabilitative measures and special procedure for tackling the
problem of juvenile delinquency, there is a growing tendency among youngsters to be
arrogant, violent and disobedient to law with the result there has been considerable
rise in the incidence of juvenile delinquency. The main causes for this unprecedented
increase in juvenile delinquency are as follows :
(1) The industrial development and economic growth in India has resulted
into urbanisation which in turn has given rise to new problems such as
housing, slum dwelling, overcrowding, lack of parental control and
family disintegration and so on. The high cost of living in urban areas
makes it necessary even for women to take up outdoor jobs for
supporting their family financially, with the result their children are left
neglected at home without any parental control. Moreover, temptation
for modem luxuries of life lures youngesters to resort to wrongful means
to satisfy their wants. All these factors cumulatively lead to an enormous
increase in juvenile delinquency in urban areas. It has rightly been
commented that today "there is no crime but there are only criminals in
the modem sense of penology". It is therefore, desired that the society be
1010 Section 2(1) of Juvenile Justice (Care and Protection of Children) Act, 2000.
Burt, C. : The Young Delinquents, p. 96.
protected from offenders by eliminating situations which are conducive to

delinquency.
(2) Disintegration of family system and laxity in parental control over children is yet
another potential cause of increase in juvenile delinquency. The British Home
Secretary Mr. Butler once said that the natural consequences of broken homes are
lack of parental control, absence of security and want of love and affection
towards children, which are contributing factors for juvenile delinquency.
(3) Unprecedented increase in divorce cases and matrimonial disputes is yet another
cause for disrupting family solidarity. Discriminatory or step-motherly treatment
with children also has an adverse psychological effect on youngsters. Once a
child feels neglected, he is bound to go astray and this furnishes a soothing
ground for juvenile delinquency.1 The children need affection, protection and
guidance at home and therefore, they have to be handled very carefully. Greater
emphasis should be on preventing them from indulging into criminality rather
than curing them after they have committed the offence. The parents and other
elderly members of the family must provide adequate opportunities for their
youngsters to develop their personality. This is possible through proper
education, training and child care.
(4) The rapidly changing patterns in modem living also make it difficult for children
and adolescents to adjust themselves to new ways of life. They are confronted
with the problem of culture conflict and are unable to differentiate between right
and wrong. This may drive them to commit crime.
(5) Biological factors such as, early physiological maturity or low intelligence, also
account for delinquent behaviour among juveniles. The age of puberty among
girls has gone down by three or four years on an average. Today, Indian girls
attain puberty at the age of twelve or thirteen while they still remain mentally
and psychologically incapable of conceiving about the realities of life. In result,
they fall an easy prey to sex involvements for momentary pleasure without,
however, realising the seriousness of the consequences of their act. It is
therefore, desired that the parents should explain to their children, particularly
the girls, the possible consequences of prohibited sex-indulgences which might
serve a timely warning to them. Special care should be taken to ensure effective
protection to girls against prostitution and child pornography.
(6) Migration of deserted and destitute boys to slums brings them in contact with
anti-social elements carrying on prostitution, smuggling of liquor or narcotic
drugs and bootleggers. Thus, they lend into the world of delinquency without
knowing what they are doing is prohibited by law.
(7) Poverty is yet another potential cause of juvenile delinquency.
Failure of parents to provide necessities of life such as food and clothing
etc. draws their children to delinquency in a quest for earning money by
whatever means. At times, even the parents connive at this for the sake
of petty monetary gains.
(8) Besides the aforesaid causes, illiteracy, child labour, squalor, etc., are
also some of the contributing factors aggravating juvenile delinquency.
It must be stated that the nature of delinquency among male juveniles differs
radically from those of girls. Boys are more prone to offences such as, theft, pick-
pocketing, gambling, eye-teasing, obscenity, cruelty, mischief, etc., while the
offences commonly committed by girls include sex-involvements, running away from
home, truancy and shop lifting. It is further noteworthy that delinquency rate among
boys is much higher than those of girls, the reason being that boys by nature are more
adventurous and enduring than those of girls.
Justifications which the Juveniles may advance against their Delinquent act

David Matza (UK)1012, in his theory of delinquency has attributed the following
justifications or excuses which the juveniles very often advance to explain or
neutralise their criminal activity :—
(1) They usually deny responsibility by claiming that the act was a
result of uncontrollable passion, accident, poverty or parental neglect etc.
(2) The delinquent may take the plea that no one is actually harmed,
either physically or financially by his criminal act. Those indulging in
alcoholism, drug-tracking vagrancy etc. may justify their act on this
ground. They may even perceive it as an act being done for their victim's
good.
(3) He may claim that the victim was also criminal and therefore, he
should not complain or that the victim was the first to start trouble hence
he has no moral justification to attribute criminality to the delinquent.
For example, in the case of sex-offence, the delinquent may allege that it
was the victim who initiated the cause or in case of domestic violence,
that the victim deserved the violence because he or she had misbehaved.
(4) The juvenile offender might claim that since everyone has at
sometime or the other committed a criminal act, hence no one has a
moral justification to blame or condemn him.
(5) The approval of the gang or group or criminal organisation may be
more important to the delinquent than that of his family or society and he
may justify his criminal act on that ground. This is generally true with
juveniles associated with criminal gangs whose loyalty they consider
more important than that of their own family members.
Juvenile Justice in U.K.
While handling the problem of juvenile delinquency, the English criminal
justice administrators have preferred to deal with it outside the framework of
criminal law. Though the problem has attracted nationwide attention, many
reformists feel that delinquency among adolescents is a transient phase and will
disappear as they grow older, hence they need to be tackled differently. Moved by
this consideration, the English penal reformists adopted different procedure and
methods for treatment of juvenile offenders in United Kingdom.
In England, the "Ragged Industrial School Movement" started in the second
quarter of the nineteenth century was perhaps the first constructive institutional
endeavour which enabled the public to appreciate the desirability of corrective
methods of treatment for juvenile offenders. An industrial school was set up for
homeless, destitute and delinquent children. A social activist, Miss Marry Carpenter
did a pioneering work in this field and as a result of her persistent efforts legislation
was enacted which received approval of House of Lords in 1847. She started a
Ragged Industrial School in Bristol. Later, another Day Industrial School was started
at Alberdeen.
In 1838, Parkhurst prison was set up for the treatment of juvenile offenders.
Soon after, the British Parliament enacted the Summary Jurisdiction Act, 1879,
which provided that a child below the age of seven (raised to eight by the statute
subsequently) is incapable of committing a crime and therefore, cannot be convicted.
The Act provided for a simple trial-procedure for juvenile delinquents and stressed
that the Magistrate should recommend individualised treatment for the reformation
of such offenders. Similar legislations were enacted by other countries with a view to
affording special consideration to children and adolescent offenders.
The delegates of the International Congress on Prevention of Crime and
Treatment of Offenders held in Paris in 1895 unanimously agreed on the necessity of
1012 Matza David : Delinquency & Drift (1964) p. 39.

special procedure and greater scope for the discretionary power of the Courts while
dealing with the cases of juvenile offenders. Consequently, an Act called the
Probation of Offenders Act, 1907 was enacted in England which empowered the
courts to grant release to juveniles in appropriate cases. The Act further provided for
the appointment of probation officers who were to visit, supervise and report to the
courts about juvenile delinquents and help and advise the young offenders in solving
their problems.
Juvenile courts were first established in England under the Children Act, 1908.
These courts differed from ordinary courts inasmuch as they were less public, less
formal, and less formidable.1013 The identity of accused or of any juvenile witness
was not to be disclosed, nor photographs etc. could be taken for publication.
Guardianship of the child was the guiding principle in the procedure to be followed
in juvenile courts. The prime duty of these courts was to afford proper care and
protection to the child or young offender and take necessary steps for removing him
from undesirable surroundings and ensure that proper arrangements were made for
his education and training.1014 In addition to criminal jurisdiction, the Children and
Young Offenders Act, 1933, also conferred civil powers1015 to juvenile court in
certain important matters. The Act provided that any child1016 and young person1017
who committed a crime, should be summarily tried by a juvenile court.
The Act contemplated that before commencing the trial of juvenile delinquent,
proper enquiries into his family background should be made in order to find out the
probable cause of his delinquent conduct. However, this task is now assigned to
probation officers who seek co-operation of the parents of the under-trial.
The trial of children and adolescents by a juvenile court could result into two
consequences, namely—
(i) He could either be allowed to return to his home on being discharged,
fined or on an undertaking of attendance at the Attendance Centre.1018
Doubts have always been expressed about the justification for imposition
of fine in cases of juveniles since it is the parents and not the delinquent
child who are penalised under this mode of punishment. There seems no
justification in punishing the parents unless, of course, there is a failure
to exercise due care of the child on their part.
(ii) Another mode of treatment of young offender was to remove him from
his home to a correctional institution or a Borstal.
The Children and Young Persons Act, 1933, provided for the establishment of
Remand Homes1019 in England for the treatment of children and young offenders. The
children and adolescents below the age of seventeen were kept under observation in
these Homes before their trial in a juvenile court. Similar arrangements were
recommended for young adults between the age group of 17 and 21 by the English
Criminal Justice Bill, 1938. But the Bill could not be finally passed due to the
1013 Fitzgerald, P. J. : Criminal Law & Punishment (1962),.p. 261.

1014 Children & Young Offenders Apt, 1933.
1015 The civil jurisdiction of juvenile court extended to three categories of cases which Fitzgerald
characteries as (1) 'beyond control cases', that is when children and young persons are brought
before the court by parents or guardian being uncontrollable, (ii) 'Care and Protection Cases',
that is, when local authority or the police bring the delinquent before the court believing that he
needed care and protection ; and (iii) the child who persistently plays traunts from school could
be brought to the juvenile court.
1016 A person under fourteen years of age.
1017 A person between the age of fourteen and seventeen.
1018 Attendance Centres are set up under the Criminal Justice Act, 1948. Now the Act of 1961
provides normal total of twelve hours attendance which may be extended to a maximum of 24
hours in appropriate cases.
1019 Section 77 of the Act.

outbreak of World War II. The Criminal Justice Act, 1948, however, provided certain
degree of security to young adult offenders through Remand Homes. Two Remand
Centres were set up one each at Ashford and Middlesex in July 1961 for handling
juvenile offenders who were in the age group of seventeen and twenty-one years of
age. With the enactment of Criminal Justice Act, 1982 in U.K., the law relating to
juveniles has been considerably liberalised in accordance with the guidelines set out
by the U.N. Minimum Standard Rules for administering juvenile justice.
Juvenile Justice in U.S.A.
The origin of juvenile courts in the United States can be traced back to the
system of appointment of State Agents in Massachusetts (Boston) in 1869. These
State Agents were to take protective care of juveniles. In 1878, the work of the State
Agent was transferred to probation officer who took care of the juvenile offenders
placed under their charge.
Presently, there is a Juvenile Court in each State of the United States. It is
usually a specialised unit in the State judicial service which is established in the local
community. The legislature determines its proceedings while the higher courts
supervise its functions. The various State agencies such as State Welfare Departments
influence the fiscal policies in relation to the juvenile courts. These Courts are usually
financed by local governments. The Judge is elected and the police, school and other
agencies make frequent referrals to it.
The working of a Juvenile Court in USA is relatively simple and more or less
informal. As first, the police takes custody of the juvenile offender. The police officer
has the discretion either to keep the child in custody or to immediately release him,
admonish him/her or to do both, and allow parents to take the custody of the child.
Next, the police contacts the juvenile court for notification of parents and the person
notified by the Court assumes responsibility of custody of the delinquent. The police
also interrogates the offender and takes his finger prints or photographs. These
records provide important clues for tracing the juvenile.
The Court while trying the juvenile, gives a hearing to probation officer who
apprises it about the antecedents of the delinquent. The juvenile having been placed
under probation officer's protective care, it is for the latter to find a suitable home,
school or employment for the child. In case the child violates any of the conditions of
probation, he is sent to a 'Certified School' or to Children Home by an order of the
Court. The age limit for juvenile trial is seventeen years.
However, at times the waiver of juvenile leads to his trial by an Adult's Court.
Some youngsters who according to statutory age limit are close to adulthood, may
have been involved in repeated offences and prove a danger to society. Such
offenders are sent for trial in. an ordinary court.
Juvenile Delinquency in other Countries
The problem of juvenile delinquency still remains a paradox despite unbriddled
efforts on the part of penologists to curb this menace. Several causes such as poverty,
slum-dwelling, neglect or partiality by parents towards their children, lack of parental
care or social security may be attributed to the unprecedented increase in juvenile
delinquency.1020 The situation in European countries in this regard is, however, not so
alarming as in United States where the problem has touched its climax in recent
years. Ms. Sophia M. Robinson in her learned article entitled "Why Juvenile
Delinquency Programmes are Ineffective" has aptly pinpointed the causes of the
failure of preventive efforts in suppressing juvenile delinquency in United States.1021
1020 Observation made by Prof. Hons Heff formerly Chief of Vienna's Psychiatric
Neurologic University Clinic.
1021 Quoted by David Dressier in Readings in Criminology (2nd Reprint), p. 681.
Norway
In Norway, the criminal cases of young offenders between the age group of 14
and 18 are referred to the Municipal Juvenile Welfare Committee consisting of five
members. This Committee functions to suggest adequate measures with regard to
juvenile delinquents. The enactment of Child Welfare Act, 1953, however, provides
that delinquent child should be allowed to stay at home and the Juvenile Welfare
Committee should take preventive steps by visiting the delinquent's home at frequent
intervals and suggest effective treasures to keep the offender away from criminality.
There is greater emphasis on medico-psychological method of treatment of young
delinquents in recent years.
Turkey
Turkey has shown keen interest in juvenile justice. Even though rate of juvenile
delinquency is not very high, slightest rise in child delinquency excites concern in
that country because of the stronghold of the family institution.
The eminent Turkish scholar Nephan Saratt dealt with socio-cultural pecularities
of the children under 18 years of age who were involved with the police of Istambul
during 1956-68. He observed that thefts, violence, sexual offences, smuggling and
pickpocketing were the most prevalent crimes and delinquency was concentrated in
the age group of 16 to 18 years. The main causes of delinquency were crowded
families, poor housing, unemployment and culture conflict.
International Concern for Juvenile Justice
The immensity of the problem of juvenile delinquency has been engaging the
attention of penologists at international level also. The international Penal And
Penitentiary Commission1022 worked successfully on the prevention of crime and
treatment of offenders untill October, 1951 and repeatedly stressed on the necessity
of rationale and humane treatment methods which could avoid the need of keeping
juvenile offenders in prison in order to disassociate them from the criminal world.
The preparatory meeting of experts in social defence (African Region) for the
Fourth United Nations Congress (Kyoto in Japan held during 17-26 Aug. 1970) on
prevention of Crime and Treatment of Offenders was held in Addis Ababa on 5-7
November, 1971. The consensus in that meeting was that family tensions make the
problem of juvenile delinquency more extensive because of neglect and misbehaviour
of parents.
The pressing problems of juvenile delinquency in developed and developing
countries drew attention of the United Nations to work out some guiding principles
for Juvenile Justice System. The United Nations Asia and Far East Institution made
significant contribution in this behalf as a result of which the Seventh U.N. Congress
on Prevention of Crime & Treatment of Offenders adopted, in September 1985, the
Standard Minimum Rules for Administration of Juvenile Justice.1023 These rules were
subsequently adopted by the U.N. General Assembly in November 1985 and
embodied the following basic principles :
(1) Juveniles in trouble with law should be provided with carefully
constructed legal protection.
(2) Pre-trial detention should be used only as a last resort. Child and juvenile
offenders should not be held in a jail where they are vulnerable to the
evil influences of the adult offenders.
(3) Juvenile offenders should not be incarcerated unless there is no other
appropriate response that will protect the public safety and provide the
juvenile with the opportunity to exercise self-control.
1022 This was called International Penal Commission before 1928.

1023 Briefly called as SMR JJ-

(4) Member nations should strive individually and collectively to provide
adequate means by which every young person can look forward to a life
that is meaningful and valuable.
India, being a U.N. member has responded favourably to this call of the
international body and enacted a comprehensive law on the subject called the Juvenile
Justice Act, 1986.1
Juvenile Justice in India
Available statistics on juvenile delinquency in India reveal that the problem is
not as tense as in the western world. This may be due to variations in living
conditions such as greater family affiliation and parental control, stronghold of
religious convictions and due regard for moral precepts in Indian society. This is not
to suggest that the proportion of juvenile delinquency in India is negligible. The
impact of western civilization and temptation for luxuries and pompous life has
greatly disturbed the modem Indian youth. Consequently, there has been a
considerable growth in crimes committed by juveniles. India like any other country,
also seeks to tackle the problem of juvenile delinquency on the basis of three
fundamental assumptions :—
(i) young offenders should not be tried, they should rather be corrected;
(ii) they should not be punished but reformed
(iii) exclusion of delinquents i.e. children in conflict with law from the ambit
of Court and stress on their non-penal treatment through community
based social control agencies such a Juvenile Justice Board,2 Observation
Homes,3 Special Homes4 etc.
The Indian law contains a more precise and clear-cut definition of juvenile
delinquency. It provides that any violation of existing penal law of the country
committed by a child under eighteen years, shall be an act in conflict with law for the
jurisdiction of the Juvenile Justice Board.
It is significant to note that the Juvenile Justice Act, 2000, lays down a separate
procedure for dealing with the neglected and uncontrollable juveniles who have been
termed as 'children in need of care and protection'. The former are to be dealt with by
the Juvenile Justice Board.
The provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000 clearly indicate that unlike USA and England, the courts in India do not have
jurisdiction in relation to child in conflict with law. That apart, the
1. This Act was repealed and substituted by the Juvenile Justice (Care & Protection of Children)
Act, 2000 (w.e.f. 1st April 2001) see Appendix VI.
2. Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
3. Section 8.
4. Section 9.
term 'delinquency' in relation to juveniles has the same meaning as 'offences'
committed by adults. Thus, there is no difference between the contents of
delinquency and an offence except that an offence committed by an adult person is
triable in ordinary court whereas the juvenile who commits a delinquent act is
proceeded against in the Juvenile Justice Board through a special procedure.
Besides, certain special provisions also exist in the Indian Penal Code and the
Code of Criminal Procedure, 1973 in relation to the young and juvenile offenders
which provide for their special treatment and procedure. They are as follows :—
(1) Sections 82 and 83 of the Indian Penal Code contain elaborate provisions
regarding the extent of criminal liability of children belonging to
different age groups. A child below the age of seven is doli incapex, that
is, incapable of committing a crime.1024 Likewise, a child between seven
1024 Section 82 IPC.

and twelve years of age has only a limited criminal liability.1025 The
contention is to justify a lenient treatment to young offenders because
they cannot appreciate the nature and consequences of their act due to
lack of sufficient maturity and understanding. Under the circumstances,
it would be grossly unjust to treat them at par with the adult offenders.
(2) Section 360 of the Code of Criminal Procedure, 1973 provides that when
any person who is below twenty-one years of age or any woman, is
convicted of an offence not being punishable with death or
imprisonment for life, and no previous conviction is proved against such
person, the court may, having regard to the age, character and
antecedents of the offender, and to the circumstances in which the
offence was committed, order release of the offender on probation of
good conduct for a period not exceeding three years on entering into a
bond with or without sureties, instead of sentencing him to any
punishment. Such 'first offenders' are not to be tried in a criminal court
through the ordinary procedure. Instead, they are to be dealt with and
corrected through special methods or treatment under the law. The object
is to segregate the young offenders from hardened criminals so that they
are not exposed to recidivistic tendencies.
(3) Section 27 of the Code of Criminal Procedure, 1973 further suggests that
a lenient treatment to juveniles has already received statutory recognition
in the Indian law. The section provides that if a person below sixteen
years of age commits an offence other than the one punishable with
death or imprisonment for life, he should be awarded a lenient
punishment depending on his previous history, character and
circumstances which led him to commit the crime. His sentence can
further be commuted for good behaviour during the term of his
imprisonment.
With a view to preventing the juvenile offender from stigmatisation and
embarrassment, the proceedings instituted against him are neither published nor
publicised. His name, address or identity is not disclosed and general public is
excluded from witnessing the trial. The delinquent's parents may, however, be
allowed to attend the trial. The object of these closed-door proceedings is to keep off
the delinquent from the rigours of procedural law and make the trial simple and less
formal.
The guiding principles relating to the treatment of children and young
delinquents are now contained in two Central Acts, namely, the Juvenile Justice (Care
and Protection of Children) Act, 2000 and the Probation of Offenders Act, 1958. The
latter Act provides for release of juvenile offenders on probation. The theme
underlying these legislative measures pre-supposes that youngsters are "naughty" by
nature and therefore, society's attitude towards them should be one of tolerence and
generosity. That apart, the mental attitude of juvenile delinquent at the time of
committing crime certainly differs from that of a confirmed adult criminal. It would
therefore, be grossly unjust to punish the two alike.
Historical Conspectus of Juvenile Justice Law in India
Prior to the enactment of the Juvenile Justice (Care and Protection of Children)
Act, 2000 which came into force w.e.f. December 30, 2000, the Juvenile Justice Act,
1986 was the governing law on the subject. Before this Act was introduced w.e.f.
October 2, 1987, the Children Act, 1960 was operative throughout the country. The
1025 Section 83.


States were, however, authorised to enact their own laws1026 for the care and
protection of the delinquent children and juveniles.
A perusal of the working of the Children Act, 1960 (subsequently repealed by
J.J. Act, 1986) would indicate that greater attention was required to be given to
children who were found in situations of social maladjustment, delinquency or
parental neglect. The justice system as available for adults was not considered
suitable for being applied to juveniles. It was deemed necessary that a uniform
juvenile justice system should be introduced throughout India which would take into
account all aspects of the social, cultural and economic changes in the country. There
was also need for greater involvement of informal systems and community based
welfare agencies in the care, protection, treatment, development and rehabilitation of
children and juveniles.
It must be stated that the Children Act, 1960 was preceded by the United
Nations Declaration of the Rights of the Child in 1959. Thereafter, 113 nations, by
consensus, promulgated the Vienna Declaration & Programme of Action where the
rights of child in general and girl child in particular, received worldwide recognition. It
was resolved that the member States should integrate the Convention on Rights of the
Child into their national action plan. This provided a blue-print for juvenile justice
legislation for developed and developing nations. India, being a signatory to the
Convention, drew up a comprehensive uniform legislation to replace the Children
Act, 1960 and the State enactments framed thereunder. Consequently the Juvenile
Justice Act, 1986 was enacted which came into force w.e.f. October 2, 1987.
The Juvenile Justice Act, 1986 (repealed by J.J. Act, 2000)
The Juvenile Justice Act, 1986 which replaced the earlier Children Act, 1960,
aimed at giving effect to the guidelines contained in the Standard Minimum Rules for
the Administration of Juvenile Justice adopted by the U.N. countries in November,
1985. The Act consisted of 63 sections spread over seven chapters and extended to
whole of India except in Jammu & Kashmir. It provided for the care, protection,
treatment, development and rehabilitation of neglected delinquent juveniles and for
the adjudication of certain matters relating to, and disposition of delinquent juveniles.
The main objectives of the Act were as follows :— 1
(1) It laid down a uniform framework for juvenile justice in the country so as
to ensure that no child under any circumstances is lodged in jail or police
lock-up.
(2) It spelled out the machinery and infra-structure required for the care,
protection, treatment, development and rehabilitation of various
categories of children coming within the purview of juvenile justice
system.
(3) It set out the norms and standards for the administration of justice in
terms of investigation and prosecution, adjudication and disposition, care
and protection, etc.
(4) It sought to develop appropriate linkage and coordination between the
formal system of juvenile justice and voluntary agencies engaged in the
welfare of neglected and socially maladjusted children.
(5) It constituted certain special offences in relation to juveniles and
provided punishment for them.
The Act remained operative for nearly thirteen years when it was repealed and
replaced by the Juvenile (Care and Protection of Children) Act, 2000 which is now
1026 For examples are the Bombay Children Act, 1954, the Madhya Pradesh Children Act, 1970, the
Hyderabad Children Act, 1951, the Saurashtra Children Act, 1956, Assam Children Act, 1971,
the Rajasthan Children Act, 1970, the Kerala Children Act, 1973 and the Haryana Children Act,
1974 etc.
the central law operative throughout the country with effect from December 30, 2000.
The Juvenile Justice (Care and Protection of Children) Act, 2000
As stated earlier, one of the special feature of the J.J. Act, 2000 is that a juvenile
who has committed an offence is not addressed as 'juvenile delinquent', instead he is
called a 'juvenile in conflict with law'. Perhaps the object is to avoid stigma which the
word 'delinquent' carries with it, in case of juvenile offenders.
The trial of a 'juvenile in conflict with law' is held by the Juvenile Justice Board
which has to consider the following issues in respect of the age of the juvenile before
proceeding with the trial:
(i) whether the person before it i.e. Juvenile Justice Board, is within the
prescribed age of 18 years or not; and
(ii) for the purpose of determining the age, the relevant date is the date on
which the offence is committed, and not the date on which the juvenile is brought
before the Board for inquiry and proceedings.
(1) The Basis for deciding whether accused is a juvenile
The Supreme Court in Deoki Nandati Dayma v. State of Uttar Pradesh} held that
entry in the school register as to the date of birth of student is admissible in evidence
to show whether the accused is juvenile or not. Its acceptance shall, however, depend
on the probative value of such entry in the school register, that is, whether it was
proper or not. The Court further clarified that in case of difference of date of birth
between school certificate and medical certificate, the date mentioned in school
certificate should be taken as authoritative because the certificate of medical officer
may be based on mere guess. Allowing the appeal, the Court directed the High Court
of Allahabad to re-hear and dispose of the revision at the earliest as it was already
long pending before it.
The Madhya Pradesh High Court in its decision in Sunil & another v. State,1027
clarified that the Court cannot leave the determination of age of juvenile entirely on
the evidence of juvenile, but it is required to make an inquiry suo motu. In this case,
the ADJ, Chhatarpur had rejected the bail application of the accused on the basis of
ossification test and medical report which showed that the appellant was not a
juvenile. The High Court ruled that ossification test is not a conclusive proof in the
matter and it is the primary duty of the Court to find out whether applicants are
covered by the Juvenile Justice Act or not and the juvenile may not be able to lead
any evidence as to his exact age. "The Court must do participatory justice and
exercise suo motu powers rather than be a silent spectator". The case was therefore,
remanded to the learned ADJ, Chhatarpur for retrial.
In Izaz Ahmad v. State of Madhya Pradesh,1028 reiterating its earlier ruling as to the
manner and the procedure for determination of age of the juvenile concerned, the
Court held that the Sessions Judge is bound to hold an inquiry and record a finding
whether the accused is juvenile or not. In the instant case, the petitioner (accused)
was never produced before the Juvenile Court or any other authority under the
Juvenile Justice Act. As such, there was no occasion for any such authority to hold
inquiry under section 32 of the Act. Therefore, the Court below was directed to itself
hold an inquiry and record a finding and it is only after doing so, it should proceed
with the trial of the case.
In Mohd. Dahaur Mia v. State of Bihar* the petitioner alleged that he was a juvenile
below the age of 16 years under the Juvenile Justice Act, 1986 (now repealed). The
CJM, however, held no enquiry for determination of the age of the accused under
Section 32 of the Act nor did he record any opinion about the age of the petitioner.
1027 2001 (1) C.Cr.J. 149 (C.Cr.J. M.P.).

1028 2001 (1) C.Cr.J. 212 (MP).

The Patna High Court held that in case of a juvenile accused, his bail application has
to be considered only under Section 18 of the Act and bail application under Section
439 of Cr.P.C. would not be maintainable. If a person is aggrieved by an order passed
under Section 18 of the Act, he has a remedy to appeal before the Court of Session
under Section 37 of the Act. The High Court has only the revisional power under
In Ajay Pratap Singh v. State of Madhya Pradesh,1029 the High Court set aside the
charges against the juvenile accused because no inquiry as to the determination of his
exact age was made by the trial Court. In this case, Session Judge had decided vide his
order dated 10th July, 2000 that according to the medical report, the accused was
above the age of 16 and therefore, could not be allowed the benefit of trial under the
Juvenile Justice Act, 1986. On appeal, the High Court ruled that where the accused
has claimed himself to be a juvenile, it is the primary duty of the trial Court to enquire
and ascertain about the exact age of the accused and decide whether he or she is
entitled to the benefit of being tried under the Juvenile Justice Act.
In the case of Dhruvendra Singh v. State of Rajasthan} the High Court observed
that for the purpose of application of the Juvenile Justice Act, the Court should not
depend on the medical report of the accused or his physical built of the body for
determination of the age but should take into consideration the date of birth as
recorded in the school register or any other available evidence as to his age.
In Satbir Singh and others v. State of Haryana,1030 the Supreme Court reiterated that
for the purpose of determination whether the accused is juvenile, the date of birth as
recorded in the school register shall be taken into consideration. In the instant case,
the accused Pritam Singh was co-accused in a dowry death case of his elder brother's
wife. He contended that he was 17 years of age on the date of occurrence i.e. 13th
June, 1989 and was therefore, entitled to the benefit of Juvenile Justice Act, 1986. His
counsel also made an attempt to press the services of Section 20 of the Juvenile
Justice (Care and Protection of Children) Act, 2000. Rejecting the plea, the Apex
Court held that the accused was not a juvenile under Section 2(h) of Juvenile Justice
Act, 1986 which defined 'Juvenile' as a boy who has not attained the age of 16 years
or a girl who has not attained the age of 18 years. And as per his own version, the
accused claimed to be 17 of age at the date of incident of dowry death. Though in the
case of Pratap Singh v. State of Jharkhand,1031 the Constitution Bench of the Supreme
Court held that the provisions of the New Juvenile Justice Act of 2000 would be
applicable even in those cases which were initiated and pending for offences
committed under the Act of 1986, provided the offender has not completed 18 years
of age on 1st April, 2001 i.e. on the date of coming into force of the Act, but the
accused being already 17 years of age on 13-6-89, is not covered by this provision. In
result, the Court directed that he also be taken into custody along with other two
accused and his bail bond be cancelled.
The Supreme Court in Prabhunath Prasad v. State of Bihar* reiterated that in case
of trial of a juvenile accused, the trial court should suo motu hold an inquiry as to the
exact age of the accused so as to eliminate any kind of dispute or doubt as to the
eligibility of the accused for being tried under the Juvenile Justice Act.
In Ku. Anita v. Atal Behari,1032 the High Court of Madhya Pradesh ruled that the
date of birth of the juvenile accused as recorded in the Register of Birth &
Death, are more authentic than the one entered in the medical report and therefore,
the former should be given priority while considering the age of the accused for his or
her trial under the Juvenile Justice Act.
1029 2000 (1) C.Cr.J. 137 (MP).

1030 AIR 2005 SC 3549.
1031 AIR 2005 SC 3088.
1032 1993 (1) C.Cr.J. 240 (MP).
The Supreme Court in Ramdeo alias Rajnath Chouhan v. State of Assam} observed
that for the determination of the age of juvenile for the purpose of his trial under the
Juvenile Justice Act, his date of birth as recorded in the school register may be
accepted provided it is entered by a competent authority. In the instant case, the
accused was a juvenile according to his date of birth as recorded in the school register
but there was no evidence to prove that it was recorded by a public servant or a
competent authority in discharge of his official duty and therefore, it could not be
accepted as an authentic evidence for the determination of the age of the accused.
(2) Relevant date as to determination of age of the Juvenile : Whether it should
be the date on which offence is committed or the date on which the juvenile is
brought before the Court for trial.
In the case of Krishna Bhagwan v. State of Bihar,1033 the full Bench of the Patna
High Court observed that for determination of the age of the juvenile for the purpose
of his trial under the Juvenile Justice Act, the relevant date should be the date on
which the offence was committed. Therefore, where the juvenile accused is within the
age-limit prescribed by the Act, he or she should be tried in a Juvenile Court (now
Juvenile Justice Board under the Juvenile Justice Act of 2000) despite the fact that he
exceeded that age-limit at the time when he was brought before the Court for trial.
Reiterating the same view, the Supreme Court in Bhola Bhagat v. State of Bihar,1034
held that for being entitled to be tried under the Juvenile Justice Act, the age of the
accused on the date of occurrence of the offence should be taken into consideration
and it is immaterial if he exceeds the prescribed age on the date of his being produced
before the Court for trial.
But the Supreme Court in its decision in Arnit Das v. State of Bihar,* overruling
its earlier decision, held that the crucial date to decide the issue whether a person is
juvenile or not, is the date when he/she is brought before the competent authority and
not the date of commission of the offence. The competent authority shall proceed to
hold inquiry as to the age of that person for determining the same by reference to the
date of appearance of the person before it.
In Rajender Chandra v. Chandigarh Administration,1035 the accused was charged
under Section 302/34, IPC on February 27,1997 and was taken into custody the same
day. He claimed himself to be a juvenile and demanded the benefit of being tried
under the Juvenile Justice Act, 1986 (now repealed). The Court of Magistrate First
Class rejected the plea of the accused after holding an inquiry about his age and the
Sessions Court also maintained the trial court's decision. The accused filed a revision
petition against this order and the High Court accepted the petitioner's plea that he
was a juvenile and was entitled to be tried under the Juvenile Justice Act. The
complainant and father of the victim, both appealed against the order of the High
Court to the Supreme Court.
The Supreme Court came to the conclusion that on the basis of BHP, Birth &
Death Register and the High School certificate, the date of birth of the accused was
30th September, 1981 and this was supported by evidence of the parent and teachers
of the accused. The Court held that the burden of proving that the accused was within
the prescribed age-limit for being treated as juvenile is on the accused himself. But
the plea of the accused that he was a juvenile and hence be tried under the Juvenile
Justice Act having been rejected by the trial court and the Court of Session, there
were two distinct opinions about this issue. Therefore, the Court ruled that where
there are two conflicting views about a particular issue, the one which is beneficial to
the accused, should be accepted. Accordingly, the accused was to be treated as
1033 AIR 1989 Pat 217.

1034 AIR 1998 SC 236.
1035 AIR 2000 SC 748.

juvenile and be tried under the Juvenile Justice Act.
In Pratap Singh v. State of Jharkhand} a three-judge Bench of the Supreme Court,
while considering the question regarding the date by reference to which age of a boy
or a girl has to be determined so as to find out whether he or she is a juvenile or not,
observed that there exists conflict between the decisions of the Court in Arnit Das v.
State of Bihar,1036 and Umesh Chandra v. State of Rajasthan.1037 The Bench therefore,
observed that since the question involved is one of the frequent recurrence and the
view of law taken in this case is likely to have bearing on the new Juvenile Justice
Act, 2000, the matter deserves to be heard by a Constitution Bench of the Court.
Consequent to the ratio of the Constitution Bench decision in Pratap Singh v.
State of Jharkhand,1038 a number of amendments of a very basic nature were introduced
in the JJ Act 2000, by the amendment of August 22, 2006 (Act 33 of 2006). In terms
of this amendment even if a juvenile ceases to be so on or before the date of
commencement of JJ Act 2000, the provisions of this Act shall apply as if the said
provisions had been in force, for the purposes and all material times when alleged
offence was committed.1039
The effects of the amendment in 2000 Act were considered by the Supreme
Court in Hari Ram v. State of Rajasthan & Another,1040 wherein the court held that Pratap
Singh Case,1041 is no longer relevant since it was decided before the 2006 Amendment.
The Court further noted that a conjoint reading of Sections 2(K), 2(1), 7-A, 20 and 49
read with Rules 12 and 98 of JJ Act, makes it abundantly clear that all persons who
were below the age of 18 years on the date of commission of the offence even prior to
1 April 2001, would be treated as juveniles, even though the claim of juvenility was
raised after they had attained the age of 18 years on or before the date of
commencement of the Act and were undergoing sentence upon being convicted.
Thus, the Apex Court in Daya Nand v. State of Haryana/ reiterated that in view of
the JJ Act 2000 as it stands after the amendments of 2006 and following the decision
in Hari Ram's case (supra), the appellant cannot be kept in prison to undergo the
sentence imposed by the ADJ and affirmed by the High Court. It is, therefore set
aside and he is directed to be produced before the Juvenile Justice Board for passing
appropriate order.
In this case, the accused was convicted under sections 376/511 IPC for the
offence of attempt to rape and sentenced to five year imprisonment with a fine of Rs.
2000/- with default stipulation.. His plea of Juvenility was disallowed by the trial
court and the High Court. Hence he had moved an appeal before the Supreme Court
which ordered his release.
In Balu alias Bakthavatchalu v. State of Tamil Nadu,1042 the Supreme Court
reiterated that a "juvenile in conflict with law" is to be proceeded in accordance with
the law as laid down in the J.J. Act, 2000, provided he is under eighteen years of age
on the date of commission of offence.
In the instant case, the appellant was prosecuted for committing an offence of
murder under Section 302 IPC on April 20, 1998 and was sentenced by the trial
Court on 30th November, 1998. He filed an application for being sent to Borstal
School in terms of Section 10-A of the Tamil Nadu Borstal Schools Act claiming
himself to be of the age of 18 years on the date of judgment. His application having
been rejected by the trial Court he went in appeal before the High Court which
1036 AIR 2000 SC 2264.

1037 1982 (1) SCALE 335 (SC).
1038 AIR 2005 SC 2731.
1039 Section 2(1) and 7-A of the 2006 Amendment Act.
1040 (2009) 13 SCC 211.
The appellant had produced a large number of documents to prove that
1042 AIR 2008 SC 1434.
dismissed it. He therefore, preferred an appeal in the Supreme Court.

The Apex Court once again made it clear that Section 20 of the J.J. Act, 2000
would be applicable when a person is below 18 years of age as on 01-04-2001, i.e.,
the date of coming into force of the Act of 2000. For attracting the provisions of
Section 20 of the Act two things are required to be proved, namely : (i) on the date of
coming into force of the Act, proceedings in which the petitioner was an accused
were pending; and (ii) on that date, he was below 18 years of age. The Court
therefore, expressed a view that determination of the age of the appellant as on date
of commission of the crime should be done afresh by the Sessions Judge by holding
an enquiry and in case the appellant was found below the age of 18 years on that day,
he should be proceeded in accordance with the provisions of the J.J. Act, 2000. The
Court allowed the appeal on the above terms.
The Supreme Court in Jyoti Prakash Rai v. State of Bihar,1043 held that the
question as to who is a Juvenile' for the purpose of J.J. Act, 2000 is to be decided on
the basis of materials brought on records by parties and the orders passed by the
Court on earlier occasion, would also be relevant.
In this case, the appellant (accused) was found guilty of murdering one of his
school mates on 12-5-2000 by stabbing him to death. His age was estimated as 17
years by the trial Magistrate and since at that point of time, the J.J. Act, 1986 was in
force, a juvenile meant a boy who had not attained the age of 16 years.
he was a juvenile but the genuineness of his school certificate and horoscope had
been questioned as they were found to be forged and fabricated and as a matter of fact
a criminal case was directed to be instituted against the school headmaster. The
appellant was examined by two different Medical Boards on two different dates to
ascertain about his age and both the Boards reached a conclusion that the delinquent
was between 18 and 19 years of age on the date of commission of the offence.
On the above mentioned facts, the Supreme Court held that the test which may
be applied in the given case would be to take the average of the age as opined by the
two Medical Boards and even applying that test, the age of the appellant as on 01-04-
2001 (i.e., the date of J.J. Act 2000 came into force) would be above 18 years.
Therefore, the Court dismissed the appeal holding that the case was not liable to be
interfered with.
In Babloo Pasi v. State of Jharkhand,* the question of presumption and
determination of the age of juvenile under section 49 of the 2000 Act and Rule 22 of
the Jharkhand Juvenile Justice (Care & Protection of Children) Rules, 2003 came up
before the Supreme Court for adjudication. The Apex Court reiterated that the
Medical Board's opinion based on radiological examination is no doubt a useful
guiding factor for determining the age of a person, but such an opinion per se cannot
be conclusive proof the juvenile. The Court held that in the absence of birth certificate
from the municipality or entry relating to date of birth in the school certificate, the
juvenile Justice Board had rightly obtained the opinion of a duly constituted Medical
Board but such an opinion per se could not be taken as a conclusive proof of the
person concerned. In this case, the voter's list showed that the accused was 20 years of
age and medical report showed his age between 17 and 18 years. The Juvenile Board
also took into consideration the physical appearance of the accused and declared him
to be an adult but the High Court in appeal, set aside the order of the Juvenile Board.
On appeal, the Supreme Court held that voter's list though a public document in terms
of Section 35 of the JJ Act, was not sufficient to prove the age of accused and in the
Court's opinion as envisaged in Section 49 of the Act, fell short of enquiry and,
therefore, allowing the appeal, the case was remitted to CJM Deoghar (Who was
heading the Board) to reconsider the age and deal with the case accordingly.
1043 AIR 2008 SC 1696,


As regards the presumption and determination of the age of juvenile for the
purpose of applicability of the JJ Act 2000, the Supreme Court in Eerati Laxman v.
State of Andhra Pradesh,1044 held that a person attains particular age at midnight of day
preceding anniversary of his birthday, that is while calculating a person's age, the date
of his birth must be counted as a whole day and he attains a specified age on the day
proceeding the anniversary of his birthday. The reason being that a legal day
commences at 12 O'clock mid-night and continues until the same hour the following
night. In this case, the accused was born on 10-5-1978 and the offence was committed
at 1 p.m. on 9-5-96, he was therefore, held to be juvenile at the time of offence.
In the case of Sidharth v. State of Bihar,1045 the appellant was found guilty of
conspiracy and murder having caused death of deceased by firing shot from close
range. It was proved that he had actually participated in conspiracy to cause murder
and made all arrangements for the crime. He was therefore, convicted under section
302 read with Sections 120-B and 34 IPC. The appellant (accused) claimed the
benefit of applicability of Section 2(k) of Juvenile Justice Act, 1986 which was
rejected. Thereafter, he made subsequent claim for benefit under the Juvenile Justice
(Protection and Care of Children) Act, 2000 which was also rejected by the CJM on
determination of age of appellant. He challenged the finding of CJM but could not
succeed hence he filed an appeal before the Supreme Court. The Apex Court held that
the decision as to denial of benefit of Juvenile Justice Act, both under the old and new
Act, having become final and conclusive, the same cannot be challenged in
subsequent appeal before the Supreme Court. The appeal was therefore, dismissed.
The Supreme Court in Murari Thakur & Another v. State of Bihar,1046 held that the
plea as benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000, as
amended by the amendment of 2006, cannot be raised for the first time at the stage of
appeal before the Court because neither it was raised before the trial Court nor before
the High court. The question as to age of the accused (appellants) at the date of
occurrence of the offence is a question of fact on which evidence, cross-examination,
etc. is required and therefore, it cannot be allowed to be taken up at this stage when
the appeal is before the Supreme Court. Hence it deserves to be dismissed.
In the instant case, the accused (appellant Mohan Thakur along with Sudhir Thakur and one Sunil
Kumar) committed murder of the deceased in a sugarcane field on 26-8-1998 at 3 p.m. One eye-witness
Dhaneswar, the uncle of the deceased, said that the gruesome act was being committed by the appellants on a
ridge under the Jamun tree. Murari Thakur had caught hold of the legs of deceased, appellant Sudhir Thakur was
sitting on the back of the deceased holding both hands and the third accused Sunil Kumar (though was not the
appellant before the Supreme Court) pressed the neck of the deceased and was cutting his throat with a sharp
edged weapon. The appellants were held guilty under Section 302/34 IPC and sentenced by the Sessions Court.
Their appeal on the ground of delay in filing of F.I.R. was dismissed by the High Court, hence they appealed to
the Apex Court. The plea of benefit under J.J. Act, 2000 was raised by the appellants before the Supreme Court
which was rejected on the grounds stated above and the appeal was dismissed.
A 'Juvenile in conflict with law'1047 is dealt with by the Juvenile Justice Board1048 while the 'child in need
of care'1049 is to be proceeded by the Child Welfare Committee, Children Home and Shelter Home to look after
the interest of the child.
As defined in Section 2(1), 'juvenile in conflict with law' means a juvenile who is alleged to have
committed an offence. He is placed in Observation
1044 AIR 2009 SC 1816.

1045 AIR 2005 SC 4352.
1046 AIR 2007 SC 1129.
1047 Sec. 2 (1) of Juvenile Justice (Care and Protection of Children) Act, 2000.
1048 Sec. 4.
1049 Sec. 2(d).
Home1050 which is meant for temporary reception of such juvenile during the pendency
of any inquiry against him.1051
Section 4 of the Act provides for the constitution of Juvenile Justice Board for the
inquiry and hearing in the case of a juvenile in conflict with law. The section also lays
down the qualifications for appointment, removal etc. of the members of the Board.1052
The procedure in relation to the working of the Juvenile Justice Board is contained in
A new Section i.e. Section 7-A as inserted by the Juvenile Justice (Care and
Protection of Children) Amendment Act, 2006 lays down the procedure to be followed
when claim of juvenility is raised before any court. Sub-section (2) of this section
provides that if the court finds a person to be a juvenile on the date of commencement of
the offence, it shall forward the juvenile to the Board for passing appropriate order and
the sentence, if any, passed by a court, shall be deemed to have no effect.
During the pendency of inquiry or hearing, the juvenile in conflict with law is
placed in Observation Home in which juveniles are kept in three separate groups
according to age i.e. 7 to 12 years, 12-16 years and 16-18 years giving due consideration
to their physical and mental condition and the degree or gravity of the offence
committed by them.
In the case of Sanjay Prasad Yadav v. State of Bihar* the Court was called upon to
decide whether a juvenile (accused) who is found guilty of an offence under section
302/34 IPC and ordered to be kept in Observation Home during inquiry under the
Juvenile Justice Act, has to be shifted to jail in case he/she has crossed the prescribed
age for being treated as juvenile. The Court held that such a juvenile must be continued
to be kept in the Observation Home even if he has crossed the age-limit for juvenile
during the pendency of inquiry against him and he need not be shifted to jail. Citing its
earlier Full Bench decision in Krishna Bhagwan v. State of Bihar,1053 the Court observed :
"Different sections put a strict bar on the juvenile being sent to jail
custody either before an inquiry or after the conclusion of the inquiry in
respect of the offence alleged or proved to have been committed. The
benefit has to be extended not only to an accused who is a juvenile at
the time of commencement of the inquiry but even to an accused who
has ceased to be so during the pendency of the inquiry."
Section 8 of the Act provides for the establishment of Observation Homes for the
temporary reception of the juvenile in conflict with law during inquiry and trial of his
case whereas Section 9 makes provision for Special Homes for juveniles who are found
guilty of an offence. The object of Special Homes is to provide for rehabilitation of the
juvenile whose guilt has been proved. The juvenile in Special Homes are classified in
different categories according to their age, gravity and nature of the offence, physical
and mental health condition etc. and are kept separately.
In Sheela Barse v. Union of India} the Supreme Court had observed that despite
statutory provisions to the effect that children should not be kept in jail, a large number
of children and juveniles were still lodged in jails. The Court observed that there is no
controversy or doubt that the juveniles have to be kept in Observation Homes and not in
jail pending inquiry or trial irrespective of the fact that they have crossed the age-limit
of being treated as juvenile pending inquiry or trial.
1050 Sec. 8.
1051 Sec. 8(2).
1052 For details see Appendix VI.
1053 AIR 1989 Pat 21-7.
In Hava Singh v. State of Haryana,2 the accused an adolescent was convicted under
Section 302/34, IPC and sentenced to imprisonment for life and sent to Borstal School
under the Punjab Borstal Act, 1926. After having completed the age of 21 years, he was
shifted to jail to serve the remaining sentence and he spent over seven years in jail. The
Supreme Court held that the accused was entitled to be released on the ground that he
being convicted by the Sessions Judge, the maximum period of detention as prescribed
under the Act could be seven years which he had already completed in jail.
Section 12 of the Act provides that the juveniles should be released on bail as a
general rule and should be sent to jail only in special cases.
In Gopinath Ghosh v. State of West Bengal,3 the Supreme Court observed that when a
juvenile is brought before the Juvenile Court (now Juvenile Justice Board under the
Juvenile Justice Act of 2000) and in the opinion of the Court, after release on bail he is
not likely to fall in company of hardened or known criminals or exposed to physical,
mental or psychological danger or his release is not going to result in failure of justice,
the bail should be granted to him and he should be released.4
Where the Board rejects the bail application of the juvenile keeping in view the
gravity of the offence and his antecedents, he should not be remanded to jail custody but
sent to Observation Home or any other safe place or institution. ^
Where after holding an inquiry or hearing in the case of a juvenile in conflict with
law, the Juvenile Justice Board finds that the offence is not of a serious nature it may
order discharge of the juvenile after admonition.6
In Jaipal Singh Tej Singh v. Ram Avtar Devilal,7 the High Court of Madhya Pradesh
held that for allowing the benefit of release after admonition to the accused under
Section 15(l)(a), the Court (now Juvenile Justice Board) shall take into consideration the
(i) circumstances of the case; (ii) the nature of the offence; and (iii) the character and
antecedents of the accused or juvenile as the case may be. While discharging the
juvenile after admonition, the Juvenile Justice Board should warn him that he shall have
to face the sentence in case he repeats the offence or commits any other offence. Taking
a similar view, the High Court of Andhra Pradesh in State v. Ghanshyam Das,s held that
"admonition by a Judge is a reprimand, a censure or a re-proof, wanvng die
1. AIR 1986 SC 1773.
2. AK 1987 SC 2001.
3. (1984) SCC (Cri.) 478.
4. Rajesh Kumar v. State of Rajasthan, 1989 Cri. L.J. 560 (Raj.).
5. Sec. 12(3).
6. Section 15(l)(a).
7. 1981 MPLJ 478.
8. 1994 Cri. L.J. 351 (AP).
accused that he is let-off but in case of repetition, he will be punished severely in
accordance with law.
Release of Juvenile on Probation
The Juvenile Justice Board may order the release of juvenile in conflict with law
on probation1054 of good conduct and place him under the care of his parents, guardian
or any other proper person. Having regard to the circumstances of the case, the Board
may also direct the juvenile to enter into a bond, with or without sureties. But the period
of such order of release on probation shall not exceed three years. Besides, the Board
may order the placement of juvenile in a Special Home,1055 but the period of such
1054 Section 15(e).

1055 Section 15(g).
placement—
(i) shall not be less than two years where the age of juvenile is more
than seventeen years but less than eighteen years;
(ii) in case of other juveniles, until they cross the age-limit of 18 years, both for
boys as well as girls.1056
The release of a person on probation being a treatment reaction to crime, offers
an opportunity to the juvenile to reform and rehabilitate himself. It is a violable
alternative for juvenile being placed in jail where there is possibility of his
contamination in association with hardened offenders.1057 But at the same time, the
Board should make sure that release of juvenile on probation is not misused by him for
ulterior purposes.1058
The Juvenile Justice Board is also empowered to order the placement of the
juvenile found guilty of an offence to be placed under the supervision of the Probation
Officer for a period not exceeding three years and the Probation Officer shall submit the
periodical report about the juvenile and his progress in reformation. However, where on
the basis of the report of the Probation Officer, the Board finds that the juvenile is not
keeping good behaviour or it is difficult to keep him under control, it may order the
placement of such probationer juvenile in Special Home.1059
Orders which the Juvenile Justice Board cannot make:
Section 16 of the Act prohibits the Juvenile Justice Board from making certain
orders against the juvenile who is found guilty of an offence. The following orders
cannot be made by the Board—
(i) an order awarding death sentence; or
(ii) an order awarding the sentence of imprisonment for life; or
(iii) an order for imprisonment in default of payment of fine; or
(iv) an order for imprisonment in default of furnishing security.
The purpose of these provisions is to prevent the juvenile from contamination and
stigmatisation.1060
The Act does not permit joint trial of a juvenile with a person who is not a
juvenile.1 The reason being that if the juvenile has to go through the general criminal
procedure of arrest, prosecution, defence, burden of proof, conviction, imprisonment etc.
as in case of adult offenders, the very purpose of Juvenile Justice Act will be defeated.
The Juvenile Justice Board can make an order against the juvenile on his being
found guilty of having committed an offence, only under the Juvenile Justice (Care and
Protection of Children) Act, 2000 and under no other law.
Removal of Disqualification attaching to Conviction of Juvenile
Section 19 of the Act specifically provides that a juvenile who has committed an
offence and dealt with under the provisions of this Act, shall not suffer disqualification,
if any, attaching to a conviction of an offence under such law. The provisions of this
section are analogous to those of Section 12 of the Probation of Offenders Act, 1958
which removes disqualification attaching to conviction.2 It is for this reason that sub-
section (2) of Section 19 requires the Board to issue directions that the relevant records
1056 Sub-clauses (i) and (ii) of Section 15(g).

1057 Munna v. State of U.P., (1982) 1 SCC 545.
1058 Lekh Raj v. State, AIR 1960 Punj. 482.
1059 Proviso to sub-section (3) of Section 15.
1060 Rajesh Khaitan v. State of West Bengal, 1983 Cri. L.J. 877 (Cal.).
of conviction of juvenile should be removed after the expiry of the period of appeal or a
reasonable period as prescribed under the rules in pursuance of the Act. The object of
this section to make sure that conviction of the juvenile does not spoil or tarnish his
future life.
Pending cases—Disposal of
A special provision has been incorporated in Section 20 of the J.J. Act in respect of
pending cases. It provides that notwithstanding anything contained in this Act, all
proceedings in respect of juvenile pending in any Court in any area on the date on which
this Act came into force (i.e., April 1, 2001) shall be continued in that Court as if the Act
had not been passed and if the Court finds that the juvenile has committed an offence, it
shall record such finding and instead of passing any sentence, forward the juvenile to
the Board which shall pass orders in respect of that juvenile in accordance with the
provisions of this Act.
The relevant case decided by the Supreme Court involving interpretation of section
20 of the J.J. Act, 2000 is Jameel v. State of Maharashtra,3 wherein the accused aged about
17 years, who was working as a mechanic in 'Noor Garage' committed unnatural offence
against the victim girl of 6 years by alluring her of a ride of lima bicycle on December
16, 1989. He was convicted for the offence under Sections 363, 376 read with Section
511 and Section 377 IPC and sentenced to suffer rigourous imprisonment of three years
and seven years respectively and a fine of Rs. 2000/- under Section 363 and Rs. 3000/-
under Section 376/511 and 377 respectively by the Additional District Judge, Nanded
and his appeal was dismissed by the Aurangabad Bench of the High Court of Bombay
on January 27, 2005.
In appeal, the appellant's plea of applicability of Section 20 of J.J. Act in his case
was rejected by the Supreme Court on the ground that the appellant having completed
16 years of age on the date of occurrence of the offence (16-12-1989), the provisions of
Section 20 of J.J. Act were not attracted in his
1. Section 18.
2. Hari Chand v. Director, School Education, AIR 1998 SC 788.
3. AIR 2007 SC 971.
case. The reason being that Section 20 refers to cases where a person has ceased to be a
juvenile under the J.J. Act, 1986, but had not yet crossed the age of 18 years when the
pending case was continued in that Court. In other words, these provisions were
applicable only in cases which were initiated under the J.J. Act of 1986 and were
pending when the J.J. Act, 2000 came into force (i.e., 1st April, 2001) and the person had
not completed 18 years of age on 01-4-2001. Since the appellant was above 18 years of
age on 01-04-2001, Section 20 of J.J. Act, 2000 had no application in his case. The
appeal was therefore, dismissed.
In Dharambir v. State (NCT Delhi & Another),1061 the Supreme Court reiterated that the
benefit of the JJ Act 2000 is available to all persons who were below 18 years of age on
date of commission of offence, respective of the fact whether the offence was committed
before or after the commencement of the Act. The proviso to sub-section (1) of Section
7-A. Contemplates that a claim of being a juvenile can be raised before any court and
has to be recognised at any stage even after disposal of the case. In the instant case, the
1061 AIR 2010 SC 1801; See also Mohan Mali & Another v. State of M.P., AIR 2010 SC 1790. wherein
the appellant had already undergone on imprisonment for 9 years for his conviction and sentence
under Section 302, 304, 324, 34 IPC. His daim for juvenility raised in appeal was found to be genuine
hence his sentence was quashed and he was ordered to be released in view of the provisions of
Section 15, 64 and Rule 98.
claim of juvenility was raised in appeal against conviction and sentence under Sections
300, 307, 34 IPC and the appellant had already undergone a period of sentence of two
years four months and four days and war aged about 35 years. The court on inquiry
found that the appellant was below 18 years of age on the date of offence. The
maximum period of detention in special home provided under the Act being three years,,
the Supreme Court quashed the sentence and directed his release.
The Supreme Court in Vikas Chaudhary v. State of NCT Delhi & Another,1062 held that
where the juvenile who was charged of an offence of kidnapping for ransom under
section 364-A of IPC and continued demanding ransom even after causing death of the
abducted victim, his offence converts into a continuing offence and, therefore, the date
of making of last ransom call has to be taken to be the date of commission of offence,
and since the accused had attained the age of 18 years on that date, he was not entitled to
the benefit of the JJ Act 2000 (as amended in 2006).
In this case, the accused has abducted a boy Prakash Chandra of Delhi on 18-1-
2003 and demanded a ransom of Rs. 35 lakh from the victim's father. The body of
Prakash Chadha who was about 17 years of age was recovered on the same day and,
therefore the accused were charged under sections 302/201/120-B read with Section 34
IPC The accused had burnt the dead body by petrol and thrown it in a drain Even after
committing murder of the victim, the accused were giving ransom calls to the father of
the victim on 20th January, 2003, 1st Feb. and 11th March 2003. These calls were
intercepted by the police and the voice of the caller (accused) was identified by the
Central Forensic Science Laboratory in its reports. The accused claimed himself to be a
Juvenile and moved an application for transfer of his case to the Juvenile Justice Board.
His application was dismissed by the ADJ (trial court). On appeal the High Court of
Delhi by its order of March 13, 2009 dismissed the revision petition and bail application
of
the accused holding that he was not a juvenile on 11th March 2003.
In the Special Leave petition filed against the said judgment of the High Court, the
Apex Court held that since the accused continued demanding ransom even after causing
the death of abducted victim, his offence was converted into a continuing offence as
defined in Section 472 Cr.P.C. and therefore, with every call for ransom demand, a fresh
period of limitation commenced. On 11th March 2003. When he made last ransom call,
he had attained the age of 18 years and hence the JJ Act was no longer applicable to
him. His petition was, therefore, dismissed.
The proceedings of the Juvenile Justice Board being of a confidential nature, their
publication is strictly prohibited in the interest of the juvenile. No newspaper or
magazine etc. shall publish the name, address, photograph or details or particulars of the
juvenile or report of proceedings against him. Any contravention of this provision shall
be punishable with fine which may extend to twenty-five thousand rupees.1
Section 22 of the Act contains special provision in respect of juveniles who have
escaped from Observation Home, Special Home or from the custody of a person. The
section expects a liberal and sympathetic approach towards such juveniles. He/she shall
be sent back to the Home or person from where he/she had escaped and no proceedings
shall be instituted against him/her.
Penalties under the JJ Act, 2000
The penal provisions regarding cruelty to juvenile or child, employing them for
begging or giving him intoxicating liquor or narcotic drug or psychotropic substance
1062 AIR 2010 SC 3380.

without prescription of a qualified medical practitioner etc. are contained in Sections 23,
24 and 25 respectively.2 Besides, Section 26 prohibits utilisation of juvenile or child for
any hazardous employment or withholding of his earning and makes the contravention
of this provision punishable with imprisonment which may extend to three years and
fine. This provision is analogous to the provision contained in Article 24 of the
Constitution of India. The offences specified in Sections 23, 24, 25 and 26 shall be
cognizable.3
Children in need of Care & Protection
The provisions relating to child in need of care and protection are contained in
Chapter HI of the Act which consists of eleven sections (i.e., Section 29 to 39). A child
in need of care and protection as defined in Section 2(d) of the Act means a child who is
found without any home or settled place of abode and without means of subsistence or
who is neglected by his parent or guardian or does not have parent and no one is willing
to take care of him or who is likely to be grossly abused, tortured or exploited or who is
found vulnerable and is likely to be induced into drug abuse or trafficking or who is a
victim of any armed conflict, civil commotion or natural calamity.
The Act empowers the State Government to constitute Child Welfare Committees4
for care and protection of children who are in need. The Child
1. Sec. 21(2) as amended by the J.J. Amendment Act, 2006 w.e.f. 22nd August, 2006.
2. For details see Appendix VI.
3. Sec. 27.
4. Sec. 29.
Welfare Committee shall consist of the Chairperson and four other members of whom at
least one shall be a woman and another an expert on matters concerning children.1063
The functions and procedure etc. in relation to Committee are contained in Sections 30
to 33 of the Act.
Section 32 provides that when a report under section 32 of the Act about a child is
received by the Child Welfare Committee, the Committee or a police officer of Special
Juvenile Police Unit or the designated police officer shall hold an inquiry in the
prescribed manner and the Committee may pass an order to send the child to tine
Children's Home for speedy inquiry by a social worker or a child welfare officer. Where
on the basis of inquiry it is found that the child has no family or any ostensible support,
the Committee may allow the child to remain in Children's Home or Shelter Home till
suitable arrangement for the rehabilitation is made for him or till he attains the age of 18
years.
The Act provides for the establishment of Children's Home for the reception of
child in need of care and protection.1064 The Supreme Court has directed that children in
Children's Home should not be subjected to begar i.e., work without wages1065 and they
should be paid adequate remuneration for the work taken from them. These Homes may
be inspected periodically by the Inspection Committees appointed by the State
Government.
In addition to the Observation Homes (for under-trial juveniles) and Children's
Home (for juvenile found guilty of an offence), the Act also provides for establishment
of Shelter Homes under Section 37 for destitute and shelterless children. The main
object of providing Shelter Homes is to ensure protection and restoration of destitute and
1063 Sub-section (2) of Sec. 29.

1064 Sec. 34.
1065 Sheela Barse v. Union of India, AIR 1986 SC 1775; See also Sheela Barse v. State of
Maharashtra, AIR 1983 SC 378.
neglected children.1066
The ultimate aim and objective of establishment of Children's Home and Shelter
Homes is protection and restoration of children who are deprived of the family
atmosphere and are leading a shelterless life. The restoration of child as envisaged by
Section 39 of the Act implies handing over the child to care of his parent or parent by
adoption or foster parent for the purposes of rehabilitation and social re-orientation. For
the purposes of this Section, "restoration of and protection of a child” means restoration
to (a) parents; (b) adopted parents; (c) foster parents; (d) guardian; (e) fit person; or (f)
fit institution.1067
Social Reintegration of Juvenils in Conflict with Law and Neglected Children
The provisions relating to rehabilitation and social reintegration of juveniles in
conflict with law and neglected children are contained in Chapter IV of the Act which
comprises Sections 40 to 45. Four alternative measures for the rehabilitation and re-
orientation of such juveniles and children are suggested in Section 40 of the Act which
are as follows :—
(1) Adoption of orphaned, abandoned, neglected or abused children through
institutional or non-institutional means;
(2) Foster care is used for temporary placement of those infants who are
ultimately to be sent to some institution or individual for adoption;
(3) Sponsorship programme may provide supplementary support to
families, children, Home, Special Homes etc. to meet the medical,
nutritional, educational and other needs of children.
(4) After-care Programme provides necessary supervision and guidance
to juvenile and children after their release from Children's Home or Special
Home so that they may be rehabilitated and lead an honest and industrious
life in future.1068
The Court may allow a child to be given in adoption :—
(a) to a person irrespective of marital status; or
(b) to parents to adopt a child of same sex irrespective of the number of living
biological sons or daughters; or
(c) to childless couples.1069
Miscellaneous Provisions Concerning Juvenile Justice Administration
Chapter V of the Act entitled 'Miscellaneous' incorporates the matters which are
related to the subject-matter of the Act but could not find place in the text of the
enactment. The matters which are related to the administration of juvenile justice have
been incorporated in Sections 46 to 70 of this Chapter.
It is the general principle of law that the inquiry or trial in each case should be
held in the presence of the accused and this principle is equally applicable in case of
juvenile delinquents as well. But if in the opinion of the competent authority, the
presence of juvenile in conflict with law or child is not necessary in proceedings against
him, it may be dispensed with. The personal attendance of accused in inquiry or trial is
generally dispensed with keeping in view the nature and position of parties in the
case.1070 At times it may become necessary to dispense with the attendance of the
1066 Sec. 35.

1067 Vide Section 20 of the J.J. Amendment Act, 2006.
1068 Sec. 41 (Adoption); Sec. 42 (Foster Care); Sec. 43 (Sponsorship) and Sec. 44
(After-care Programme). -1
1069 Section 41(6) as substituted by the J.J. Amendment Act, 2006.
1070 B.B. Das Gupta v. State of West Bengal, AIR 1969 SC 381; Sushila Devi v. Sharda Devi,
juvenile or child if he/she is interrupting the trial or proceedings repeatedly. Therefore,

Section 47 of the Act empowers the competent authority to dispense with the personal
attendance of the juvenile or child who is uncontrollable.
Where the juvenile or child is suffering from a disease which requires a prolonged
treatment or from a physical or mental disorder which may be cured by medical
treatment, he may be sent to the approved place or institution for necessary
treatment.1071 But if he is found to be suffering from a serious disease as specified in
sub-section (2) of Sec. 48, he shall be referred to special treatment centres under the
relevant law.
The provisions relating to presumption and determination of the age of juvenile in
conflict with law are contained in Section 49 of the Act. The case-law on this point has
already been discussed earlier. The law in this regard is governed by the Supreme
Court's decision in Hari Ram v. State of Rajasthan &
1961 Cri. L.J. 819 (MP); Jagatguru Srengeri Math v. State of Mysore, AIR 1969 Mys.
95 etc.
1071 Sec. 47.
Another} which was handed down consequent to Juvenile Justice (Care & Protection of
Children) Amendment Act1072 2006. The Court made it clear that the case of Pratap Singh
v. State of Jharkhand,1073 is no longer relevant since it was decided before the Amendment
of 2006. It has now been finally settled that the relevant date for determining the age of
juvenility of the offender would be the date on which the offence is committed.
The report of the Probation Officer to be made under Section 15 of the Act is
treated as confidential1074 and the competent authority cannot be compelled to disclose
the contents thereof. However, if the competent authority deems it fit, it may
communicate the substance of the report to the juvenile or the child or his/her parent or
guardian and offer them an opportunity of producing relevant evidence about any matter
contained in the said report.
The appeal against the order passed by the competent authority after inquiry and
proceedings in respect of juvenile in conflict with law or the child shall lie to the
Sessions Court and the time limit prescribed for appeal is thirty days from the date of
order.1075 This limit may be extended if the Court finds that there was sufficient reason
for delay in filing the appeal by the appellants.1076 Any cause beyond the control of a
person is generally accepted as a sufficient cause for extending the period of limitation
for appeal. These include death of a person in the family, serious illness, failure of
vehicle or mode of transport in journey, any natural calamity etc. Filing of the appeal in
improper Court was held to be a sufficient cause for extending the time limit for appeal
in the case of Sunder Theatres v. Allahabad Bank, Jhansi,1077
In Ganesh v. Mithalal,1078 the Bombay High Court held that the term 'sufficient
cause' should be interpreted liberally so as to provide opportunity of appeal to the
appellant.
A crucial question raised before the Supreme Court in the case of Ramdeo Chouhan
alias Rajnath v. Bani Kant Das & others,1079 was where a person who is entitled to benefit
under Section 7-K of the JJ Act, 2000 as amended by 2006 amendment regarding the
plea of juvenility, is denied this benefit, will it amount to violation of his human rights
under sections 2(d) and 12(J) of the Human Rights Act (10 of 1994). Answering in the
affirmative, the Apex Court held that Sections 12(J) of the Human Rights Act, enlarges
the jurisdiction of NHRC to enquire into cases where party is denied protection of any
law to which he/she is entitled, whether the denial is by private party, a public
institution, the government or even courts of law.
In the instant case, the accused (petitioner) was convicted under sections 302, 323,
325 and 326 IPC for the murder of four members of a family on March 8, 1992 and was
sentenced to death, this being a rarest of rate case. He claimed the defence of juvenility
which was rejected on the grounds of evidence of medical and forensic experts who
estimated his age as 19 years at the time of occurrence of the crime.
On appeal, the High Court confirmed the death sentence of the petitioner on 1-2-
1999 wherein the counsel for petitioner specifically submitted that he was not
challenging the finding of the trial court on the point of juvenility of the accused
1072 Section 2(1) and 7-A of the JJ Amendment Act, 2006.

1073 AIR 2005 SC 2731.
1074 Sec. 51 (The provisions of this section are analogous to those of Sec. 7 of the Probation of
Offenders Act, 1958).
1075 Sec. 52(1).
1076 Sri Ram Chits Fund Investment (P) Ltd. v. M. Krishnan, AIR 2000 Mad 78.
1077 AIR 1999 Ail 14 (UP).
1078 AIR 1999 Bom 120.
1079 AIR 2011 SC 615.
petitioner. The larger bench of the Supreme Court in its decision on 10-5-2001 held that
there was not an iota of doubt that the petitioner was not a child or near about that age
within the meaning of JJ Act:
The petitioner had already filed a mercy petition on 17-8-2000 before the
Governor of Assam for commutation of his death sentence to one of life imprisonment.
The Governor commuted the sentence of the petitioner on 28-1-2002.
Challenging the commutation the relatives of the deceased filed a writ petition and
also challenged the jurisdiction of Human Rights Commission to intervene in the matter.
The court allowed the review petition and restored the Governors order and held NHRC
had the jurisdiction to move the Supreme Court in the matter.
Section 52(2) of the Act, however, provides that an appeal shall not lie against the
order of acquittal made by the competent authority i.e., the Juvenile Justice Board or an
order made by the Child Welfare Committee in respect of finding that a person is not a
neglected juvenile.
Thus, the decision of the Sessions Court in the case of juvenile in conflict with law
or child, shall be final and there is no scope for further appeal against its order. It may
be noted that similar provisions relating to appeal in case of juvenile delinquents existed
in the repealed Juvenile Justice Act, 1986.
Section 53 of the Act confers revisional powers on the High Court against an order
made by the Board or the Sessions Court. But it has no appellate powers in this regard.
The High Court may itself call for the record of the proceedings in which the Board or
the Sessions Court had passed an order and may do so on a revision petition having
been received in this behalf. The High Court in exercise of its revisional power under
section 53 of the Act, satisfies itself about the correctness, legality and reasonableness
of the order passed by the Board or Sessions Court, as the case may be.
The procedure to be adopted in inquiries, appeals and revision proceedings is laid
down in Section 54 of the Act. The competent authority i.e. Juvenile Justice Board may
amend its orders without prejudice to the provisions for appeal and revision.1080 It also
has the power to discharge or transfer the juvenile or child from one Home to another.
But the period of stay of the juvenile or child cannot be extended by such order of
transfer.1081 Normally, the provisions relating to discharge or transfer of juvenile or
child under Section 56 of the Act are invoked when it becomes necessary consequent to
his no longer remaining a juvenile or a child in need of care or protection.
Section 57 of the Act as substituted by the Juvenile Justice Amendment Act, 2006
provides for transfer between Children's Homes and Juvenile Homes of like nature in
different parts of India. In case of inter-state transfer, consent of the concerned State
Government and prior intimation to the Committee or Board, as the case may be, shall
be necessary.
The Act also authorises the Juvenile Justice Board or the State Government to
make an order for reducing the period of stay of a juvenile or a child in the Children's
Home or the Special Home when it thinks it proper to do so in the interest of the
juvenile or the child, as the case may be.1082
If any juvenile or child kept in Children's Home or Special Home or Shelter
Home is suffering from leprosy or is of unsound mind or is addicted to any narcotic
drug or psychotropic substance, he may be removed to a leper asylum or mental hospital
or a de-addiction treatment centre respectively or to a place of safety for such period as
1080 Sec. 55.

1081 Sec. 56 proviso.
1082 In Re Harold Hamreay & Allen Osland Norvegian Nationals, AIR 1999 Bom 325.
may be recommended by the specialist.1083

Section 59 provides that a juvenile in conflict with law or child in need of care
and protection may be released or granted leave of absence from the Children's Home or
the Special Home on bona fide grounds such as marriage or death of any relative or
serious sickness or accident of parent or any emergency of the like nature. The period of
such leave shall generally not exceed seven days.1084
The Central or State Government may constitute Central or State Advisory Board,
as the case may be, to advise the Government on any of the following matters—
(1) establishment of Children's Home, Special Homes and Shelter
Homes;
(2) management of the aforesaid Homes;
(3) mobilisation of resources for running these Homes;
(4) education, training and rehabilitation of children who need care and
protection;
(5) ensuring co-ordination and co-operation among various official and
non-official agencies and organisations.1085
As provided in sub-section (2) of Section 62, the Advisory Board shall consist of
eminent social workers, representatives of corporate sector, voluntary organisations,
medical professionals, academicians and representatives of the concerned Department of
the State Government. The number of members in the Advisory Board shall be as
prescribed by the Central or State Government, as the case may be.
A new Section 62-A has been inserted in the principal J.J. Act, 2000 by the
Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, which
provides for the constitution of Child Protection Unit responsible for implementation of
the Act. Every State shall constitute such unit for the State and, such Units for every
District consisting of such officers and other employees as may be appointed by the
Government, to take up matters relating to children in need of care and protection and
juveniles in conflict with law with a view to ensure the implementation of the Act
including establishment and maintenance of Homes, rehabilitation and coordination
with various official and non-official agencies concerned.
The Act provides for the establishment of Special Juvenile Police Units for
handling of the juveniles and children under the Act and prevention of juvenile crimes.
These police units shall be specially trained for the purpose.1086
Section 67 extends protection for actions taken under the Act in good faith. The
officials of the Government, voluntary organisations running the children's Homes,
Special Homes or Shelter Homes and other staff associated with the functioning under
the Act are protected for acts done by them in good faith in pursuance of this Act or the
rules or orders made there under.
The State Government may, by notification in the Official Gazette, make rules to
carry out the purposes of this Act.1087 The rules so made should be laid before the
Legislature of the State concerned as soon as possible.
The provisions relating to repeal and savings are contained in Section 69 of the Act
which provide that with the coming into force of this Act, the earlier Juvenile Justice
Act, 1986 ipso facto stands repealed. But the repeal of the Act of 1986 shall not have any
1083 Sec. 58.

1084 Section 59(2) as amended by J.J. Amendment Act, 2006.
1085 Sec. 62.
1086 Sec. 63.
1087 Sec. 68 as amended by J.J. Amendment Act, 2006 vide Section 26.
adverse effect on acts done under that Act.

The provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000
clearly indicate that the object is to save the juvenile in conflict with law or child from
the rigours of criminal law procedure and arduous court trial. The procedure of inquiry
and proceedings under the Act is informal so that the juvenile has not to undergo the
process of conventional criminal trial which involves arrest, prosecution, trial, defence,
burden of proof, conviction etc. The provisions of different Homes to be established
under the Act are intended to prevent prisonisation of juveniles in conflict with law.
Juvenile Justice (Care and Protection of Children) Amendment Act, 20061088
The working of the Juvenile Justice (Care and Protection of Children) Act, 2000
for about five years showed that some of the provisions of the Act merited
reconsideration. Therefore the Act was amended in 2006 with a view to adopting a child
friendly approach in the adjudication and disposition of matters in the best interests of
children and for their rehabilitation and overall development. The Amendment Act, inter
alia, seeks to :—
(i) clarify that the J.J. Act, 2000 shall apply to all cases involving
detention or criminal prosecution of juveniles under any other law;
(ii) remove doubts as to the relevant date in determining the juvenility of a
person and applicability of the J.J. Act;
(iii) to provide alternatives to detention in Observation Home to achieve the
objective of the J.J. Act;
(iv) elimination of association of any police officer from the inquiry process in
case of a child in need of care and protection, as this work is assigned to the
Child Welfare Committees;
(v) extend the scope of adoption of a child to childless parents and to
limit the same under the J.J.. Act to Indian citizens only;
(vi) provide flexible period of leave that may be given to child on special
occasions like examination, marriage of relatives, death of kith and kin or
accident or serious illness or any emergency of the like nature.
Despite the aforesaid innovations and reformative techniques adopted for juveniles
and children under the Act, some penologist are not satisfied with the justice
administration system adopted under the Act. In their opinion, the involvement of
judicial magistrate and police still play a dominant role in the working of the Act which
should have been assigned to social service organisations.
Special Juvenile Police Units
It cannot be denied that the first contact of the delinquent juvenile is always with
the police. Every juvenile offender has to be taken to police station for however short
the period may be, before he is sent to Observation Home or Children's Home. Thus,
other welfare agencies come into picture at a later stage only. The cooperation of these
agencies in dealing with juvenile offenders is no doubt, valuable but from the
administrative point of view, it is only the police organisation which can prevent and
control the ever-increasing quantum of juvenile crimes.
Section 63 of the Juvenile Justice (Care and Protection of Children) Act, 2000
provides that there should be Special Juvenile Police Units in every State to handle
juvenile in conflict with law and neglected children. Each police station should have
such Special Juvenile Police Unit which should be assigned the following functions :—
(1) Supervisory field work.—It should initiate steps to prevent juvenile delinquency
1088 For the Text of J.J. Amendment Act, 2006. See Appendix VII.
at all levels in all forms. This would necessitate intensive field-work including surveys,
identification of juvenile and child delinquency and collection of socio-economic data
about delinquent's family background. The Unit should maintain detailed records and
send periodical statistical reports about juvenile delinquents i.e. juveniles in conflict with
law.
(2) Co-ordination.—The Special Juvenile Police Unit should coordinate and
maintain close liaison with social welfare agencies, Juvenile Justice Boards, Observation
Homes, Children's Home, Shelter Homes etc. and also with the members of the Child
Welfare Committee. It should also help the probation officers in keeping surveillance on
the juveniles in conflict with law under their charge.
(3) Counselling.—The Police personnel constituting the Unit should be well
trained in counselling services and they should seek co-operation of psychologists,
psychiatrists, medical jurists etc. to know about the personality, habits, etc. of juveniles
who are persistent delinquents or addicts.
(4) Training.—In each Juvenile Police Unit, there should be at least one officer
with aptitude and appropriate training and orientation in child welfare who should be
designated as child welfare officer. His main function should be to handle juveniles or
children in co-ordination with the general police.
It may be stated that the Committee on Women Prisoners headed by Justice
Krishna Iyer, in its report submitted to the Government in February 1988 had
recommended deployment of women police for handling women and juvenile offenders
and neglected children because in the opinion of the Committee "women have greater
potential to cool, defuse and de-escalate many situations."
Trial of Juveniles under Cr.P.C. and the Repealed Juvenile Justice Act, 1986
The procedure to be followed in a judicial proceeding against a child or juvenile
offender as laid down in the Children Act, 1960 (later repealed by the Juvenile Justice
Act, 1986) and the Code of Criminal Procedure was challenged in Rohtas v. State of
Haryana1089 wherein the question involved was whether the child facing trial for an
offence punishable with death or imprisonment for life could be tried by the Juvenile
Court or by Sessions Court. The Supreme Court finally ruled that the child shall be tried
under the provisions of the Haryana Children Act, 1974 though the offence is
punishable with death or imprisonment for life. This view was further fortified by a
subsequent decision of the Supreme Court in Sheela Barse v. Union of India.1090 In that case
the Supreme Court reiterated that despite statutory provisions to the effect that children
should not be kept in jail, a large number of children were still lodged in jails. The
Supreme Court therefore, issued a direction that in case of offences punishable with less
than seven years, investigation must be completed within a period of three months
failing which the case must be closed. The maximum time-limit for completion of trial
in such cases was fixed at six months. The Supreme Court, further ruled that there is no
controversy or doubt that the juveniles must be kept in Remand Homes or Observation
Homes and not in jail pending trial or enquiry irrespective of the fact that they have
attained the age of 16 years during trial. But the question arises whether they should be
allowed to remain in the company of under sixteen group of juveniles after they cease to
be juveniles ? "If the company of the criminals kept in ordinary jail can have deleterious
effect on their mental hygiene, it cannot be denied that their continued association with
persons who are under-age i.e. below 16 years, living in the Observation Home may not
1089 AIR 1979 SC 1839.

1090 AIR 1986 SC 1773.
be in the interest of the younger ones." Therefore, the State Governments should make
arrangements so that such juveniles who have crossed the age of 16 are not only kept
away from the evil influence of ordinary criminals but at the same time, are also kept at
a distance from under-sixteen group of persons.
Grant of Bail to Juvenile
The case of Rahul Mishra v. State of Madhya Pradesh,1091 involved the consideration
of grant of bail to a juvenile delinquent. In this case, the accused, a juvenile was
charged under Sections 147, 294, 452, 323, 506, Part II, 307 and 302 IPC and it was
proved that appellant juvenile under the age of 16 was present at the spot when the
crime was committed and therefore, his bail application was rejected. Deciding the
question of grant of bail to a juvenile, the High Court in this case, observed that
"normally juvenile should be released on bail but bail should be refused when grant of
bail itself is likely to result in injustice, that is when it appears that his release on bail is
likely to bring him into association with any known criminals or expose him to moral
danger or his release would defeat the ends of justice. That is, there is likelihood of the
juvenile delinquent to whom the bail is granted, interfering with the course of justice or
he is likely to abscond from the jurisdiction of the court. The Apex Court pointed out
that the juvenile delinquent may appear to be guilty prima facie but he is specially
protected and favourably considered for grant of bail under Section 18 of the Juvenile
Justice Act, 1986 which is now repealed. The Court therefore, directed that the
applicant shall be released on bail on his furnishing a bail bond of rupees ten thousand
only with the surety of the like amount to the satisfaction of the Juvenile Court subject
to reasonable conditions imposed upon him by that court.
Trial of Juveniles where there is no Juvenile Court (Now Juvenile Justice Board)
The Supreme Court in Abdul Mannan and others v. State of West Bengal,* has ruled
that juvenile offenders shall be tried by Juvenile Courts (now Juvenile Justice Board
under the Juvenile Justice Act of 2000) and where such Courts1092 do not exist, the
Additional Sessions Judge will be competent to proceed with the trial of the juvenile
accused as he has all the powers and jurisdiction of the Sessions Judge to try offences
enumerated under the Code of Criminal Procedure as laid down in Section 9(1) & (3) of
the Code. The Apex Court further ruled that if by the passage of time due to juvenile
accused's own act of protracting the trial, he crosses the age of juvenile and becomes an
adult, then in that case, the benefit of Juvenile Justice can be denied to them as no
useful purpose under the Juvenile Justice Act would be served.
In the instant case, the appellants were charged for various offences including
offence of murder punishable under Section 302, I.P.C. T ey were 17 and 18 years of
age on the date of the commission of the offence. Since no Juvenile Courts were
constituted by the State of West Bengal, the appellants were tried by the Additional
Sessions Judge. Their contention that only the Sessions Judge was competent to try the
cases of juveniles and not the Additional Sessions Judge, was rejected by the High
Court on the ground that Section 9(3) clearly provides that Sessions Judge includes
Additional Sessions Judge. As to their contention that the benefit of Juvenile Justice Act
was denied to them even though at the relevant time they were juveniles, the Supreme
1091 2000 (1) C Cr J 86 (MP). The case was decided prior to the repeal of JJ Act 1986 and its
replacement by the JJ Act of 2000.
1092 Now, Juvenile Justice Board under the Juvenile Justice (Care & Protection of Children)
Act of 2000.
Court held that by passage of time they no longer remained to be juvenile offenders due
to their own act of protracting the trial. As the object of the Juvenile Justice Act is to
reform and rehabilitate the juvenile offenders as useful citizens in the society, no useful
purpose would be served in application of the provisions of the Act in case of the
appellants who deliberately kept the trial pending by protracting litigation and
meanwhile became adults. Therefore, no interference of the Supreme Court was called
for and the appeal was accordingly dismissed.
Special Procedure of the Juvenile Justice Board
The procedure followed in the proceeding against juvenile offender under the
Juvenile Justice Act, 2000, differs from that of an ordinary criminal trial, and therefore,
it can be rightly termed as 'special procedure' in view of the following considerations :—
(i) The proceedings cannot be initiated on a complaint from a citizen or the
police.
(ii) The hearing is informal and strictly confidential.
(iii) The juvenile offender while under detention, is kept in separate Observation
Home.
(iv) The young offender may be reprimanded on security or bond for good
behaviour.
(v) The trial of juvenile in conflict with law is usually conducted by lady
magistrate specially deputed for the purpose.
(vi) The procedure followed in the trial of juvenile in conflict with law being
informal, he has no right to engage the services of a lawyer in the case.
(vii) No appeal lies against the order of acquittal made by the Juvenile Justice
Board in respect of a juvenile alleged to have committed an offence. An
appeal shall, however, lie against the order of the Board holding the
juvenile guilty of an offence to the Sessions Court within a period of 30
days whose decision shall be final and there shall be no second appeal.1093
An Appraisal of the Juvenile Justice System in India
It must be stated that the treatment offered to juvenile offenders under the Indian
law is incited by humanitarian considerations but the fact remains that the very concept
of juvenile delinquency goes against the spirit of the law relating to liberty,1094 which
provides that no one can be proceeded against unless he is charged for some specific
offence.1095 Other points which deserve consideration in context of juvenile trial are :—
(1) Assigning the function of apprehending juvenile offender to the police
agency due to lack of an alternative effective machinery goes against the
basic principle on which this corrective system is founded. The contact of
juvenile with the police at the very first stage of trial is contrary to the basic
policy accepted for juveniles.
(2) The effectiveness of juvenile trial, by and large, depends upon the efficiency
of probation officers. It is quite probable that the probation officer might
submit a 'routined' report about a juvenile offender without making any real
enquiry into the offender's case or it may even be a false or a cooked report.
It is therefore evident that the object underlying special trial of juvenile can
only succeed if the probation officers are honest and sincere in their duties.
1093 Section 52 of Juvenile Justice (Care and Protection of Children) Act, 2000.
1094 Art. 21 of the Constitution of India.
1095 In Re Holmes (1955) and In Re Gault, 387 US 1 (1967) decided by US Supreme
Court.
Unfortunately, the probation in India lacks the services of experienced

personnel to be appointed as probation officers. As a result of this, the cause
of juvenile justice is seriously jeopardised.
(3) As stated earlier, extracting confession from young offenders is contrary to
the principles of justice and criminal law of the land.1096 Moreover, while
trying a juvenile's case the magistrate is acting on the evidence of probation
officer. This is something basically wrong. The language problems of the
undertrials and the judicial magistrate may present some difficulty in the
fair trial of the case.
(4) Even from the practical standpoint, the proceedings in a Juvenile Justice
Board present a very dismal picture. In practice, it greatly differs from what
it is expected to be. The informal procedure adopted by the competent
authority or Judicial Magistrate leaves sufficient margin for judicial
discretion which may lead to erroneous judgment.
(5) Despite Juvenile Justice (Care and Protection of Children) Act, 2000 having
come into force way back in 2000, "the State Acts continue de facto in many
States because the new Act visualises structures and functionaries and
expenditures and the States may not be ready for these matters". Therefore,
a very strange situation exists where Juvenile Justice (Care and Protection
of Children) Act, 2000 is adorning the Statute book, but it is not effectively
implemented in many parts of India due to lethargy of the State
Governments.
(6) The Juvenile Justice Act, 2000 lays down that boys and girls under 18 years
of age cannot be imprisoned under any circumstances whatever, and that
they can be tried only by a Juvenile Justice Board, and should be placed in
suitable corrective Home if their own home is not suitable or they may be
put on probation or simply allowed to go home. Further, bail for juvenile is
automatic unless there is a reasonable apprehension that the delinquent may
associate with bad characters. But despite all these beneficial legal
provisions, there are instances where many young and juvenile prisoners are
sent to jail.
(7) Section 21 of the Juvenile Justice Act, 2000 prohibits adverse publicity of
the juvenile which may lead to his identity during proceedings against him.
But the newspapers, magazines etc., are violating this provision with
impunity. The press and media must be made aware of the philosophy and
spirit underlying this provision of the Act.
An empirical study of juvenile delinquency in India shall reveal that the fault lies
not with the policy but with the proper implementation of it. Some critics even argue that
in an anxiety to reform youngsters we lose sight of the basic values of law and its
implications. However, it must be pointed out that treatment of juvenile delinquent is a
progressive movement, hence mechanical application of legal provisions in case of
young offenders should not be unduly stressed. Despite certain shortcomings, the
following facts regarding juvenile
1096 Section 24 of the Indian Evidence Act.

delinquency in India deserve a special mention :—

(1) A large number of juvenile delinquents are found not to be acting on their
own but are exploited by adults. This is particularly true with offences
relating to delivery of illicit brew and liquor and immoral traffic in women
and girls.
(2) Juvenile delinquency in India is typically a male activity and females
contribute only 5 per cent of juvenile arrests in India as compared to 22 per
cent in United States.
(3) Juvenile delinquency is not a nationwide phenomenon as the states located
in Central India particularly Madhya Pradesh, Maharashtra, Uttar Pradesh,
Bihar and Orissa account for more than 50 per cent of India's juvenile
delinquency.
(4) There is little scope for delinquent gangs in India. The Indian society does
not seem to generate conditions which repel the youth from the home to
street.1
(5) Juvenile delinquency in India makes a relatively much smaller contribution
to the total crime picture of the country as indicated in the statistical data in
'CRIME IN INDIA—2007.2 The percentage of juvenile crime to total IPC
crimes for the year 2009 is 1.8 per cent despite an increase in population of
the country. Significantly, there has been a decline in the crimes such as
theft, burglary and culpable homicide not amounting to murder but crimes
relating to women and girls such as kidnapping abduction and rape, have
shown an increase as compared to previous years. It may therefore, be
inferred that the Juvenile Justice (Care and Protection of Children), Act,
2000 has shown favourable results in bringing down the incidence of
juvenile delinquency in India in some specific areas. The comparative year-
wise figures of Juvenile delinquency in India for the period 1999-2009 is
given in the Table below :—
Table showing Incidence and Rate of Juvenile Delinquency under IPC
(1999-2009)
Year Incidence of Percentage of Estimated Rate Mid-Year
Juvenile Crimes (Incidence of Population Crime
Juvenile Total To Total Crimes Per lakh (In Lakh) of Population)
Crimes Cognizable
Crimes
1 2 3 4 5 6
1999 8888 1764629 0.5 9866 0.9

2000 9267 1771084 0.5 10021 O.s
2001 16509 1769308 0.9 10270 1.6
2002 18560 1780330 1.0 10506 1.8
2003 17819 1716120 1.0 10682 1.7
2004 19229 1832015 1.0 10856 1.8
2005 18939 1822602 1.0 11028 1.7
2006 19173 1883763 0.9 11325 1.7
1. S. Venugopal Rao : Facets of Crime, p. 157.
2. Source : The Registrar General of India, New Delhi.
2007 19602 1906892 1.0 11447 1.9
2008 24535 209599 1.2 11613 2.1
2009 26078 21447 1.1 11902 2.1
* Source : The Registrar General of India.

* Actual Population as per 2001 census.
** As per the revised definition of 'Juvenile' under Juvenile Justice Act of
2000. The boys and girls of age group of 16-18 years have been
considered as juveniles onwards the year 2001.
Undoubtedly, the Juvenile Justice (Care and Protection of Children) Act, 2000
is a comprehensive legislation which contemplates the creation and institution of
authorities for the care, protection and correction of juvenile delinquents but the
manner of implementation of this welfare legislation is not really effective in large
parts of India on account of "laggard behaviour of the States."
The juvenile charged for different offences under the Indian Penal Code
during the year 2009 (1st January to 31st December 2009) as indicated in the Table
below clearly shows that the incidence of crime committed by juveniles has not
recorded any remarkable decline despite the amendments made in the Juvenile
Justice Act 2000. The number of burglaries-rioting and rapes committed by juveniles
is specially alarming and a cause of concern for the criminal justice administrators.
Juvenile Delinquency under Different Crime Heads During the Year 2009
Offence Relevant Sections of IPC No of Juveniles Charged
for the offence
1. Murder 302 844
2. Abetment to murder 305 1003
3. Culpable Homicide 304/308 37
4. Rape 376 798
5. Kidnapping 359, 361, 364A, 366A 396
6. Theft 378/380 5253
1512
7. Offences against
Women & girls 354/292/294/509 275
8. Dacoity 395-398 150
9. Making preparation or
Assemblies for dacoity 399-402 72
10. Robbery 392-394 481
397-398
11. Burglary 449-453 2431
12. Criminal Breach
of Trust 407 17
13. Arson 435/436 79
14. Cheating 420 108
15. Rioting 1422

16. Others Juvenile Delinquency 321 607
146/153/159
Treatment of Juvenile in Conflict with Law and Children in Need of Care &
Protection
It would be worthwhile to review the functions of various institutions which are
presently engaged in handling juvenile offenders. Reformation of offenders is the
central theme of domiciliary treatment in these correctional institutions. The
institutions such as Observation Homes, Childrens' Homes, Special Homes, Shelter
Homes, Reformatory Schools and Borstals are meant to eliminate prisonisation of
children and adolescents under a particular age group.
Observation Homes
The juveniles who need only a short-term custody during inquiry or trial are
kept in an Observation Home.1097 This institution is also vised for the custody of
undertrial children and juveniles in conflict with law about whom inquiry is pending
or who are awaiting trial or removal to an appropriate Home or Borstal.
There are Children's Homes for the treatment of neglected children for whom a
short-term regulatory protective care is necessary but a long term residential training
is not necessary.1098 This reform has, however, not resolved the contradictory
approaches of welfare and punishment which still persist. The focus in this
institution is on strict discipline rather than constructive training. The system has,
however, been subjected to severe criticism in Britain due to enormous increase in
juvenile crimes in recent times.
Special Homes
The Juvenile Justice Act, 2000 also provides for setting up Special Homes for
custody of delinquent juveniles. Basic amenities such as accommodation, medical
care, education and vocational training are available to delinquent juveniles in these
Homes.
Certified Schools
The Certified Schools are a modified form of the nineteenth century
Reformatories or Industrial Schools for homeless, destitute and delinquent children.
These Schools are run under the State tutelage for catering to the needs of delinquent
children of different age, sex and religion. The purpose of these approved Schools is
to provide training to those juveniles who are unfit for release on probation. The
Schools are open-insfitutions where young offenders are educated and trained for
normal living. The duration of stay and training in a Certified School varies
according to inmate's requirement depending on the discretion of the School
administrator. This normally ranges from a minimum of six months to a maximum
of three years. In practice, majority of inmates are released much earlier.
Certified Schools have warranted criticism from several quarters. The
1097 Section 8, Juvenile Justice (Care and Protection of Children) Act, 2000.
1098 Section 34, JJ Act of 2000.
working of these institutions has been criticised on the ground that they are far more
comfortable than even the homes of the delinquents. But it must not be forgotton that
the loss of liberty in these institutions is in itself a heavy punishment. On the whole,
more than two-thirds of the inmates return to normal life after their release from the
institution. These schools provide training facilities for inmates to make them
proficient in different trades so that they can engage themselves in some useful
occupation.
Separate Schools & Hostels for the Children of Prostitutes
The children of prostitutes, if not segregated from their mothers, may land into
the career of prostitution which may lead to aggravate juvenile delinquency.
Therefore, a suggestion has been mooted out from some quarters that these children
should be brought up in separate schools or hostels exclusively meant for the
purpose. The question of feasibility of establishing separate schools and hostels for
prostitute's children came up for consideration before the Supreme Court in a social
action writ petition in Gaurav Jain v. Union of India.1 Answering in the negative, the
Apex Court held that segregating prostitute's children by locating separate schools
and providing separate hostels would not be in the interest of such children. The
Court observed that "normally prostitutes do not want children to be born to them.
But once born, it is in the interest of the children and society to separate them from
their mothers and they be allowed to mingle with others and become a part of
society. They should not be permitted to live in undesirable surroundings of
prostitute houses". Particularly, the young girls whose body and mind are likely to be
abused with growing age for being admitted to profession of their mothers should be
separated from the vicious surroundings of prostitute houses.
The Supreme Court reiterated its earlier stand in Vishal Jeet v. Union of India2
and refrained itself from expressing any opinion on the issue of rehabilitation of the
children of the prostitutes through separate schools or hostels for them. The Court,
however, issued direction to constitute a Committee to examine the problem and
report to the Court.
In yet another public interest litigation writ under Article 32 of the
Constitution, namely, Gaurav Jain v. Union of India and others,3 the Supreme Court
reiterated its earlier stand seeking improvement in plight of child prostitutes and
children of prostitutes and observed that "it is the duty of the State and all voluntary
non-government organisations and public spirited persons to come to their aid to
retrieve them from prostitution, rehabilitate them with helping hand to lead a life of
dignity of person, self-employment, education, financial support. Marriage and
acceptance by the family is another important input to rekindle faith of self-respect
and self-confidence in them". The work of rescue and rehabilitation of the child
prostitutes and children should be assigned to the Department of Women & Child
Welfare under the Ministry of Welfare & Human Resources which should devise
schemes for proper and effective implementation of reformative schemes. In
addition, the Supreme Court appointed a Committee to enquire into the problem of
children of fallen women
1. AIR 1990 SC 292.
2. AIR 1992 SC 1412.
3. AIR 1997 SC 3021.
and submit a report. Consequent to the report submitted by the committee the Court
held that the directions given in the order, aim not only at giving benefits to the
children but also to root out the very source of the problem and the Government
should evolve a suitable programme of action for this purpose.
Borstals
A "Borstal" is yet another correctional institution for the long term treatment of
juvenile offenders. The term "Borstal" owes its origin to Borstal village in England
where Rochester Prison was first converted into a reformatory for boys in 1902. The
Prevention of Crime Act, 1908, expressly prohibited the lodging of young
delinquents between sixteen and twenty-one years of age in ordinary prisons and
directed that they should instead be sent to the Borstal. It was due to streneous
efforts of Sir Alexander Paterson that a few more Borstals were opened in England in
subsequent years.
The English Borstal Institutions
Borstals are institutions where adolescent offenders receive training in lieu of
imprisonment so that they can be reformed under conditions which are different
from those of prisons.
Borstal training is exclusively meant for adolescents between the age group of
fifteen and twenty-one. Only such offenders who are found guilty of offences
punishable with imprisonment may be sent to Borstal institution for training. The
maximum period is now two years and release is possible only after the expiry of six
months. After release, the offender remains subject to supervision and recall for next
two years from the date of his release. Before recommending a delinquent for
Borstal training, his suitability and physical as well as mental fitness is thoroughly
examined.
Though booking to a Borstal provides for an effective deterrent to the potential
offender, it is certainly not a prison. Borstals are usually open institutions having no
walls, no bars and no closed cells. There are, however, a few closed Borstals also
which are meant for the treatment and training of hardened adolescent offenders.
Borstal institution prepares the offender for normal life in society by providing
him facilities for industrial training and disciplined life. It is an institution meant for
salvation of young offenders under the State tutelage. Adequate facilities for work,
education and recreation are available to inmates in each Borstal and all possible
efforts are made to make the place homely. Borstals provide for a phased training
programme to inmates. When the inmate reaches the final stage of training, he is
allowed sufficient liberty to move in the society.
Despite rigorous training and discpline in Borstals, the system can hardly be
said to have delivered the goods. This is evident from the fact that there has been a
large number of escapes from Borstals during recent years. The causes which hinder
the success of Borstals are abnormal increase in the number of inmates, lack of
adequate facilities for psychiatric treatment and want of sufficient number of
institutions to cater to the needs of juveniles.
Borstal system in India
Borstals have been established in India under the Borstal School and
Reformatory Schools Act, 1897. These institutions provide for adequate educational
and vocational training to young offenders who are committed by the juvenile
courts.1099 After release, (which may be either absolute or conditional), from a
Borstal institution, the offender is placed under the supervision of an Officer
1099 Now, the Juvenile Justice Board under the JJ Act of 2000.
appointed by the court, if necessary. The various State laws also provide for the
release of juvenile offenders on a bond or security for good behaviour with or
without sureties. At times, the parents or the guardians are ordered to pay fines if
their child who was released on bond repeats the offence.
There are at present a number of Borstals and reformatories functioning
throughout India. The general lack of adequate 'after-care' programme, however,
undermines the utility of these institutions. Particularly, the States of Gujarat,
Maharashtra, Punjab and Tamil Nadu have done a commendable work in the
direction of encouraging Borstal system through a well planned strategy. The young
offenders in these States are released on licence or parole after they have served at
least two-third of commitment in a certified correctional school. Thereafter, they are
placed under the supervision of a probation officer for the remaining period of their
final release. These States have also established After-care Associations and Children
Aid Societies to rehabilitate young offenders released from Borstals and Correctional
Schools.
In the context of institutional rehabilitation through Borstal, it would be
pertinent to refer to the Supreme Court decision in Hava Singh v. State of Haryana &
another2 wherein the accused, an adolescent was convicted under Section 302/34,
I.P.C. and sentenced to life imprisonment and sent to Borstal School under the
Punjab Borstal Act, 1926. After having completed the age of 21 years, he was sent to
jail to serve the remaining sentence and he spent over seven years in the jail. The
Supreme Court held that the accused was entitled to be released on the ground that he
being convicted by the Sessions Judge, the maximum period of detention as
prescribed by the Act could be seven years which he had already completed in jail.
4 -
The States of Andhra Pradesh, Uttar Pradesh and Madhya Pradesh have also
adopted a system of follow-up service which provides for periodical visits of
probation officer to the home of the released juvenile delinquent to watch latter's
progress and give him necessary help and advice for a period of three years from his
release.
Particularly in Maharashtra, a number of Borstals and correctional institutions
for young offenders are operating in the State. More important among them are Saint
Catholine Home, Andheri ; Chembur Children's Home, Mankhurd ; Salvation Army
Girl's Home, Sion ; David Sasoon Industrial School, Mahim, Mumbai; Yarvada
Industrial School, Pune; Seva Samiti, Nasik; Shradhanand Women Orphanage,
Mumbai and Mahila Sevashram, Wardha. The Chembur Children's Home is meant
for children with rural background whereas the David Sasoon Industrial School is a
Ragged school for orphans and vagrant juveniles with urban background. Similar
Borstal institution is functioning under the name of Vidhya-Bhawan at Udaipur in
Rajasthan. There
is a Reformatory School at Jabalpur and Narsinghpur in Madhya Pradesh and
Hazaribagh in Bihar. There are several other voluntary welfare associations
functioning in Pune, Broach, Delhi, Ahmedabad, Surat, Sholapur, Satara, Dharwar,
etc. which are engaged in the rehabilitation of delinquent women and children.
Clinical Service can Serve Best to Prevent Juvenile Delinquency
Studies on juvenile delinquency generally conclude that clinical service can
serve best to prevent youngsters from indulging in criminal behaviour. The all India
Crime Prevention Society established in 1950 is doing a commendable service to
suppress juvenile delinquency on national front. This organisation has now assumed
an international status and has received recognition from United Nations. The Society
has strongly pleaded for the revision of the criminal laws1100 and the law of evidence
to conform to the modem corrective methods of treatment. There is greater emphasis
on probation service for the guidance and supervision of released offenders. This
society has further suggested that adequate employment opportunities should be
provided to ex-convicts and they should be allowed suitable age-relaxation in matters
of recruitment to public services. Another significant point raised by the Crime
Prevention Society for reducing juvenile delinquency is the need for greater police-
public co-operation. The police should actively assist the social agencies which are
engaged in the reformation of offenders. The establishment of Special Juvenile Police
Unit in each police station and deployment of more women in the police force is
certainly a welcome step in this direction.
Empirical researches in juvenile delinquency have suggested that the only
alternative to suppress criminality among children and adolescents is to provide them
proper education and training in schools and homes. A well planned scheme of
education will intellectually prepare them to accept social responsibility. Active co-
operation between the teacher and delinquent's parents is also necessary to solve the
problems of teenagers and reduce the incidence of juvenile delinquency. Setting up of
Guardians Guide may prove useful for this purpose. The educational institutions may
perhaps serve best to intensify preventive programmes and suppress juvenile
delinquency. Community programme through public-police participation in
rehabilitative techniques for juveniles and young offenders may also help
considerably in reducing the incidence of juvenile delinquency.
It may be stated that the problem of juvenile delinquency is intimately related to
other social problems and therefore, it can be effectively tackled by devising
measures to secure community cooperation and public support through voluntary
service organisations. Needless to say that the institution of 'family' has a significant
role to play in resolving this socio-legal problem.
It has been generally accepted that children become delinquent by force of
circumstances and not by choice. It is possible to reform the anti-social attitudes of
children by improving the unfavourable surroundings and giving them suitable
training. Therefore, there is need to adopt a 'social therapy' approach towards juvenile
delinquents and this should constitute the basic philosophy underlying administration
of juvenile justice in India and elsewhere. Ultimately, it may be reiterated that there is
need for effective control, supervision and assistance of the offender in the whole
juvenile correctional process. It is desirable to establish at various levels people's
committee to tackle the problem of juvenile delinquency right from the time of
apprehension of the offender to his final rehabilitation in the community. That apart,
monitoring of the working of the Juvenile Justice Act and the functionaries working
thereunder is also equally important. For this purpose, it has been suggested that an
Ombudsman for juvenile justice with statutory powers to watch, report, inspect and
audit the institutions functioning under the Act should set up to give it a more
democratic dimension and at the same time exercise effective control on bureaucracy
in performance of this social task.
The working of the Juvenile Justice (Care and Protection of Children) Act,
2000 has shown that the pattern of implementation of the Act reflects a quantitative
1100 The old Code of Criminal Procedure, 1898, was repealed and replaced by the Code of
Criminal Procedure, 1973. The Indian Penal Code and the Law of Evidence however, needs to be
thoroughly revised and restated.
approach by increasing the number of Juvenile Justice Boards, Child Welfare

Committees, and juvenile institutions so as to cover a larger area. The time has now
come when greater attention needs be focused on qualitative aspect of the working of
the Act. For example, only those magistrates should be selected for Juvenile Justice
Board who have special background or training in child psychology and welfare
work. The appointment of the panel of two social workers to assist Juvenile Justice
Board will be more helpful. There is need to activate the Advisory Boards mandated
in Section 62 which would ensure better coordination between the various segments
of the juvenile justice system. It would be worthwhile to appoint visitors for each
Juvenile Home who may act as a spokesperson for the inmates. The selection and
training of right kind of personnel will also prove useful in solving the problems
associated with the smooth functioning of the juvenile justice system in India.
It hardly needs to be emphasised that the Juvenile Justice Act is a beneficial
statute which aims at fulfilling the constitutional mandate contained in Article 39(f)
by ensuring care and protection of neglected children and juveniles who are in
conflict with law. It is therefore, the bounden duty of the State to initiate adequate
measures to safeguard children and juveniles against exploitation, deprivation and
criminalisation as they are a valuable national asset, besides being the future citizens
of India. The Act as modelled and amended has the potential to achieve this end
provided it is implemented in a right earnest manner by the enforcement agencies.
The amendment of the Act in 2006 has taken note of some of the lacunae which were
left unaddressed in the original Juvenile Justice (Protection & Care of Children) Act
of 2000.
Chapter XXV
Recidivism
Thetheever-increasing recidivism is undoubtedly a crucial problem for penologists in

control of crime and rehabilitation of offenders. The term 'recidivism'
connotes persistent indulgence in crime. The jails of most civilised countries are full
of prisoners and the court rooms jammed with undertrials. The offenders are locked-
up, released, rearrested and re-sentenced. Many of them go undetected and they are
never convicted or sentenced. Considerable public money is wasted on prisons and
other correctional institutions for combating crime but the problem still persists.
American records show that more than fifty per cent of prisoners admitted to the
State and Federal prisons and reformatories have been found to be recidivists.1101 The
Indian statistics, however, reveal that there is a slight decline in the incidence in
recidivism in recent years.
Who is a Recidivist ?
Before analysing the causes of recidivism it seems pertinent to consider as to
who is a 'recidivist'. As John W. Mannering points out, "criminological literature is
replete with descriptions of the personality and background characteristics of
recidivists and hypotheses as to why they persist in crime."1102 In his opinion
recidivists or crime-repeaters are often characterised as being basically anti-social,
aggressive, highly competitive, indifferent to well-being of others and exceedingly
egocentric. In general, it may be said that an offender who has a long criminal record
and has been a frequent inmate of penal or correctional institution and who shows
scant regard for institutional adjustment, can be characterised as a "recidivist". Such
an offender is obviously a poor risk for social adjustment.
From the socio-legal point of view, the term 'recidivism' may be defined as the
habit of relapsing into crimes by the criminals and recidivist is a person who relapses
into crime again and again
Causes of Recidivism
The personality of recidivists and social factors underlying recidivism being
complex, the real problem confronting penologists is the proper identification of
criminals for rehabilitative processes and assessment of the extent of effectiveness of
these treatment methods. Experience has shown that certain criminals are "better
risks" for rehabilitative processes while others may not respond favourably to the
correctional measure of treatment. This reflects upon the futility of reformative
measures of punishment for certain categories of offenders and at the same time
raises a very pertinent question as to why recidivists repeat crime even at the risk of
facing severe punishment. As Kathleen Smith rightly comments, "the professional
criminal that we are dealing with today is no poor, deprived, demented, moron. The
crimes he succeeds in, speak for him. He is often a technical expert and a
psychological one ; he is clever, patient, observant, scientific as well as greedy and
vicious. The most severe penalties which are awarded by courts are so inadequate
and so ineffective that they leave a major crime so glaringly profitable that they
invite people to make it their career".1103
1101 Dressier David : Readings in Criminology & Penology, (1966), p, 614.

1102 John W. Mannering : Significant Characteristics of Recidivists NPPA Journal IV
(July 1958), pp. 211-17.
1103 Kathleen J. Smith : A Cure for Crime, p. 53.
According to G. B. Void, "prevalence of recidivism offers a serious stumbling

block to a too ready acceptance of the idea of readily achieved reformation".1104 He
prefers to classify criminals into four major categories for the purpose of analysing
the problem of recidivism :—
(1) Psychologically disturbed criminals who commit crime because of their
mental depravity or emotional instability. Such psychopathic
personalities should be treated in a mental hospital rather than a penal
institution. According to Void, almost thirty per cent of offenders belong
to this category.
(2) Criminals who are relatively unskilled, less educated and possess
proportionately low level of ability. Such offenders are psychologically
normal persons but they suffer from inferiority complex and are
therefore, not able to withstand the hazards of modem complex society.
The ultimate result is that they try to overcome their shortcomings
through an unrealistic self-assertion and lend into criminality. The
appropriate remedy for such offenders is to develop self-sufficiency,
honesty and competitive ability in them by institutionalising them in an
appropriate penal or correctional institution. Since prison life is
essentially non-competitive and provides for an intensive training of
inmates to prepare them for an upright living in the society, such
criminals can best be treated in prisons and reformatories. About forty
per cent of the total population of criminals is covered under this
category.
(3) The third category of criminals comprises persons who are
psychologically normal and possess proper education but their
identification with law violators makes them criminals. Thus, persons
who indulge in communal activities of political rivalry are often included
in this category of criminals. In such cases, neither imprisonment nor
reformation can serve any useful purpose. Only ten per cent of the
criminals fall under this category.
(4) The fourth category of criminals consists of hardened criminals who are
professional in crimes and have embraced criminality as a regular way of
life. Such criminals quite often organise themselves into regular group
associations and syndicates and usually carry on their activities in a well
planned and organised manner. These criminal organisations generally
operate at prostitution houses, gambling dens and illicit liquor shops.
They are habitual and hardened criminals well aware about the possible
consequences of their crime, yet they prefer to chance their skill in
criminal activities rather than earning their livelihood through legitimate
means. Apparently, there are lesser chances for rehabilitation of such
criminals as they commit crime deliberately in a calculated manner.
About twenty per cent of the total criminals constitute this category of
offenders.1105 The organised gang of drug traffickers belongs to this
category of recidivists.
They carry on their illegal activities in a regular chain which extends from the
main dealer down to the large number of users at the base. Each one of them relies on
another and the gang operates as a well organised network. Drug offences are largely
consensual.
1104 Void G. B. : Theoretical Criminology, (1958) pp. 297-301.

1105 Void G.B. : Theoretical Criminology, (1958) pp. 297-310.
Recidivism 619
Recidivism—Psychological Perspective
Some criminologists believe that recidivism depends to a large extent on the
responses to the initial criminal act of the offender. In particular, it may depend on
whether the offender is detected and, if so, how his actions are treated. The
possibility of his abandoning criminality or becoming a persistent criminal will
depend on the administrative and community responses which will interact to change
his attitude for organised criminality.
As pointed out by Sir Robert Mark, permanent and determined criminals do not
regard the present criminal justice system as sufficiently deterrent. They are aware of
the limitations of the police and the system of criminal justice and find crime to be
highly profitable and rewarding.1106 In India, professional criminals get the protection
of resourceful patrons and get the advantage of slow moving criminal justice system.
The need of the time therefore, is to realise that cure for crime lies not only in speedy
criminal justice but in certainty of punishment rather than its severity.
Penologists have expressed divergent views about the co-relationship between
intelligence and recidivism. Goring, the noted penologist in his study on recidivist
concluded that with increasing degree of recidivism there is a small but regular
regression in the mean intelligence of convicts. Professor Gillin was, however,
opposed to this view and observed that Intelligence Quotient (I.Q.) has no statistical
relationship with the success or failure in crime.
Dr. Sutherland seeks to tackle the problem of recidivism from the psychological
standpoint. He attributes two major causes for recidivism,1107 namely,
(i) Social psychology of the offender ; and
(ii) Inadequacy of reformative techniques.
Commenting on the social psychology of criminal as a cause of recidivism,
Sutherland pointed out that urbanised regions are more prone to recidivism than rural
areas. The congested dwellings, slums, high cost of living and highly mechanised life
in cities and urban places offer sufficient opportunities for offenders to carry on their
criminal activities undetected and unnoticed for years. Therefore, criminality
becomes a habit with them and finally turns them recidivists. The living in rural
areas, on the other hand, is relatively cheaper and simple and offers lesser chances
for criminality. That apart, there are almost no chances of escape from detection in
rural places due to their geographical limitations, it makes these areas unsuited for
crime and recidivism. Dr. Sutherland further concludes that men by temperament 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. The
stigma of prisonization makes him shim and avoid the normal society. He therefore,
finds no charm in free life and prefers a routined life of a prison to which he is well
accustomed. Another psychological reason for non-adjustability of released inmate to
normal life is that he begins to feel that the law-abiding members of society look at
him with suspicion, distrust and doubt. Thus he suffers from inferiority complex arid
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 criminals
by reason of their criminal tendency organise themselves into groups and associations
1. Sir Robert Mark : Policing A Perplexed Society, p. 67.

1107 Sutherland and Cressey : Principles of Criminology (6th Ed.) pp. 592-5.
and devote to loyalties and attitudes which tend to persist in the criminal world. 1108
The offender who talks of reformation is ridiculed by his fellowmen and at times even
aggressive and violent methods are used to prevent him from disassociating with the
criminal group. All possible efforts are made to convince him that he can make
fortune only by continuing his criminal career. That apart, continuous association of
the offender with a particular criminal group inculcates a sense of faithfulness,
devotion and loyalty in him for his fellow-criminals. He therefore, feels obliged to
help those who helped him earlier in his criminal activities.
There are certain activities in society which are either criminal by themselves or
are very close to criminality. Persons who undertake these activities adopt many of
the criminal traits as a part of their business routine. For example, hoarding,
smuggling, black-marketing, racketeering, tax evasion, bribery, fraud and
infringement of trade marks, copyrights or patents, hacking the computer systems
etc., are some of the crimes which are customarily followed by the members of
business community as a part of their day to day dealings. In India, political grafts,
pressure tactics and corrupt practices1109 are widespread and have become so common
that offenders committing these offences hardly lose any social status even if they are
caught and punished for any of these offences.
The pathological personality-traits such as mental disorder, emotional
instability, egocentrism and mental conflicts also lead to persistence in criminality
among recidivists. In such cases, treatment through correctional processes does not
serve any useful purpose because the personality traits of these criminals remain
unchanged and they continue their criminal behaviour undeterred of the
consequences.
Inadequacy of correctional measures in treatment of offenders is yet another
cause of recidivism. A large number of failures in parole, probation and reformatories
certainly reflect upon the ineffectiveness of correctional services in cases of hardened
and habitual offenders. These rehabilitative measures prove effective only in selective
cases where the offender is specifically recommended for such treatment after careful
observation by the experts. It must be noted that in the present context, when
unemployment, poverty and economic depression, are rampant, many persons take
these correctional institutions as convenient places of shelter where they can be sure
of atleast two square meals a day. Therefore, they deliberately indulge into
criminality to find a legitimate entry into the prison institution where they feel more
homely and secure than the outside competitive life in the normal society.
Attributing short-term sentences as a potential cause of recidivism, S. Adolph
Prins, the noted penologist of Belgium, once observed that "mechanical
apportionment of punishment to guilt usually results into short terms of imprisonment
and the multitude of minor punishments means the incessant coming and going of
habitual delinquents ; it means that prison becomes a hostelry, that the prisoner goes
free in good time and remains in a state of war against society ; it means in a word
that the Judge enlarges, without being aware of it, the records of recidivism."1110
Recidivistic Offenders
Studies on recidivism generally reveal that there are some specific offences
1108 Goswami, P. : Criminology, (1964) p. 116.

1109 Commonwealth Games Scam (2010); 2-G Spectrum (Tele-com licencing) Scam (2011), Pune
based businessman Hasan Ali's money laundering scam are only a few instances to substantiate
this view.
1110 S. A. Prins : Criminal tei et Repression, (1888) p. 93.
Recidivism 621
which are more likely to be repeated by recidivists than the others.1111 Thus theft,
robbery, burglary, larceny, gold-chain snetching and forgery are referred to as the
most common recidivistic crimes while homicide, assault, rape, embezzlement,
money laundering and income-tax frauds are not so often likely to be repeated. The
most recidivistic offences committed by male offenders are narcotic-law violation,
fraud, burglary and auto-thefts while sex offences are most likely to be repeated by
women delinquents.
Measures to combat Recidivism
The classical theory of punishment upheld infliction of sufficient pain and
suffering on the offender as an effective measure to bring about his reformation. The
modem psychological and psychiatric trends in the correctional field, however, do not
favour infliction of pain and suffering on the offender. It is now generally accepted
that severity of punishment makes the offender more revolting and he becomes
indifferent to society. This impedes his chances for rehabilitation to normal life. Thus
deterrent punishment does more harm than good to criminals so far their reformation
is concerned.
Medieval penologists believed that expiation or penance was also an equally
effective method of suppressing recidivism. In their view, leaving the offender to
himself in complete isolation without any contact with outside world, provides him
sufficient opportunity for penance and remonstrance. But this view does not find
support in modem times as it has been proved beyond doubt that solitary confinement
of prisoners leads to their degradation and
1111 Dressier David : Readings in Criminology and Penology, p, 619.

makes them averse to normal life in the community.

The old method of keeping the offender under constant surveillance has now
also become obsolete and outdated for the reason that it carries with it a sense of
distrust for him. The offender's consciousness of being under a constant surveillance
makes him hostile and indifferent towards the security guards who are deputed to
keep a watch on him. Alternatively, the modem techniques of open jails, probation,
parole, etc., are devised to afford maximum liberty to the inmates so that they
develop a feeling that they are being trusted.1112 This inculcates a sense of
responsibility and trustworthiness among them which helps considerably in their
rehabilitation and resocialisation.
Corrective work inside the prison institution and keeping inmates engaged
during the period of their incarceration is perhaps the most effective method of their
ultimate reformation. The process of putting inmates to work reduces monotony of
prison life and at the same time keeps them physically and mentally fit. The talents of
inmates are also properly channelised and they get an opportunity to prove their
worth and ability through labour and hard work.
With the advance of science, technology and human knowledge the old
mechnical methods of repressing recidivism have lost their significance and new
clinical methods are now devised for the reformation of criminals. Modem penal
science lays greater emphasis on individualised treatment of offenders which, in other
words means shifting the focus from crime to the criminal. Thus, every endeavour is
made to ascertain the cause of criminality to be cured through a process of diagnosis
and institutional treatment. Expressing his views on reformation of offenders, Dr.
Sutherland observed that criminality is now considered as a defect or a symptom of
disorder which can be treated on individual basis without reference to offender's
group just as the biological disorder can be treated on an individual basis.1113 This
proposition is carried further to explain that an offender commits crime due to
psychological disorder in him rather than the biological defects. At times, an offender
is unable to overcome his egoistic tendencies and anti-social impulses and suffers
from emotional conflicts which make his social adjustment difficult. The modem
method of treatment seeks to mitigate these emotional maladjustments for bringing
about the reformation of offenders. Criminality is now regarded as a mental disease
to be cared by clinical treatment through the process of psycho-therapy and
psychiatry. The ultimate aim is to make the inmate realise the undesirability of his
unacceptable behaviour and assist him to follow a socially acceptable course of
conduct.
Despite this holistic and individualised approach, the modem penological
researches have shown that correctional programmes have failed to deliver the goods
because of over-emphasis on individual traits of the offender rather than his group.
Speaking about criminality, Danish penologist Dr. George Sturup comments, "it is a
poor service to science to anticipate progress by excessive propaganda endeavouring
to turn the medical experts who are such excellent collaborators in the administration
of justice into magicians".1114 Today, a number of professionally trained personnel
are engaged by law-courts and other correctional agencies to assist in the treatment of
criminals. Several social agencies are also at work to help and guide the offenders in
the process of their reformation yet the problem of recidivism continues to persist.
1112 Sethna, M.J. : Society and the Criminal (3rd Ed.) p. 234.
1113 Sutherland & Cressy : Principles of Criminology (6th Ed.) p. 598.
1114 Andreas Aulie : Criminology, Criminal Policy and Propaganda, published in Studies
In Penology (IPPS), p. 27.
Recidivism 623
This sufficiently demonstrates that the importance of clinical and corrective measures
should not be over-emphasised and greater reliance be placed on existing penal
sanctions and legal methods for minimising the recurrence of recidivism. This would
perhaps be a more rational and realistic approach to the problem of recidivism.
Sir Lionel Fox, the chairman of the British Prison Commission, expressed great
concern for the growing tendency of recidivism among offenders and suggested
some concrete measures to curb it.1115 He pointed out that almost ninety per cent of
the discharged criminals wish to live an honest and upright life but the society denies
them this opportunity on account of its hostility and distrust for them. With a view to
solving this intricate problem of released offenders, Sir Lionel Fox introduced Hostel
System in England in 1953 which was extended throughout England in subsequent
years. United States followed the suit and started similar institutions in the name of
Pre-release Guidance Centres. These Guidance Centres are meant for those juveniles
and young offenders who are to be paroled out having completed their institutional
treatment. These Centres also provide adequate guidance and offer work
opportunities to inmates in commercial firms and private undertakings. They are well
equipped with recreational facilities and have all amenities of a normal living. The
system has been found useful in bringing down the incidence of parole violations. A
similar system has recently been also devised for adult offenders.
As a veteran prison reformist, Sir Lionel Fox further suggested that if the society
is receptive to ex-prisoners, recidivism can be considerably reduced. In his opinion
no amount of after-care plan can successfully bring down the incidence of recidivism
unless there is a change in society's attitude towards offenders. This is possible
through proper understanding and education. He was distressed to find that many
prisoners on release carry with them the stigma of prisonisation and hide it as a
secret disgrace to avoid being shunned by the society. It is unfortunate that they have
to do so and it is terribly wrong that society should force them to do so.1116
Despite far reaching development in correctional practices and improvement in
the administration of criminal justice, the steep rise in crime-rate has so often been a
cause of concern for penologists and law-refonners. It has been suggested that
excessive conservatism and mass illiteracy are the two potential causes of growing
recidivism in India. It is therefore, desired that an offender be treated as a person
who has deviated from the normal path and gone astray in social life for certain
reasons. It must be borne in mind that confinement of the criminal in prison or a
similar institution makes him suffer considerably and therefore, he should be treated
sympathetically after his release so that he can readjust himself to normal life in
society. There is greater need for change in society's outlook towards ex-prisoners in
order to prevent their lending back into the world of criminality.
Like any other country, the problem of recidivism has reached alarming
dimensions in India. The available statistics on recidivism in India indicate a wide
fluctuation in different States. Significantly, the percentage of recidivism has shown
a declining trend during the preceding three years. The statistical figures indicating
the extent of recidivism in India during the preceding years are shown in the table
shown below:—
Table Showing Recidivists Convicted During 2001-2009)1117
Year Number of Recidivists convicted in the past
1115 Sir Lionel Fox was the Chairman of the British Prison Commission during 1942-60.
1116 Studies in Penology edited by Lopez-Rey & Germain (1964) p. 48.
1117 Source : CRIME IN INDIA—2009, Published by the National Crime Record Bureau,
(NCRB), New Delhi.
Recidivism in India
Once Twice Thrice or more
2001 173575 51822 16687
2002 151422 36905 11840
2003 138596 41133 14701
2004 121691 44458 13855
2005 167379 50306 16534
2006 163218 48213 15329
2007 160129 47996 14987
2009 179384 51349 25316
Out of the total number of recidivists about 9.0 per cent were habitual offenders
who were convicted thrice or more in the past. Andhra Pradesh has reported the
highest recidivism i.e., 33.5% while amongst the Union Territories Chandigarh had
the highest tendency of recidivism in the country. The cities like Jabalpur, Delhi,
Hyderabad, Bhopal and Chennai had a large number of recidivists.
It must be stated that incidence of recidivism in urban areas is far more than
those of rural regions. Again, sex-wise, males are more prone to recidivism than
female offenders perhaps because of their physical strength and adventurous
temperament.
Supreme Court on Recidivism :
The Supreme Court has suggested liberal use of parole as a penological
innovation to check recidivisim through its decision in Suresh Chandra v. State of
Gujarat1118 and Krishan Lai v. State of Delhi.1119 The Court has stated that parole has the
effect of premature release and it is an accepted mode of incentive to a prisoner as it
saves him from extra period of incarceration and preventing from turning a recidivist.
The apex Court once again emphasised the reformative aspect of penal justice in
Mohd. Giasuddin v. State of Andhra Pradesh1120 and observed, "the State has to
rehabilitate rather than avenge". Mr. Justice Krishna Iyer, speaking for a two-judge
Bench, pointed out that "the sub-culture that
1118 (1976) 1 SCC 654.

1119 (1976) 1 SCC 655.
1120 AIR 1977 SC 1926.
Recidivism 625
leads to anti-social behaviour has to be countered not by undue cruelty but by re-
culturisation."1 These directives of the Supreme Court certainly go a long way in
combating recidivism.
Prevention of Recidivism
Some of the measures which may be suggested for suppressing recidivism are
as follows :—
1. The modem correctional methods of treatment of offenders essentially
involve classification of criminals into different categories so that they can be
adequately punished or sent to an appropriate institution. From this point of view of
possibility of offenders turning into recidivists, they may be classified into following
categories :—
(i) innocent convicts ;
(ii) insane criminals ; , ,
(iii) criminals by accident;
(iv) occasional criminals ;
(v) habitual offenders ;
(vi) white collar criminals ;
(vii) political offenders.
This classification rests on the responsibility of the criminal to his act. For
example innocent convicts are those who are convicted and imprisoned due to
erroneous or misguided judgment of the law court. They are therefore, innocent
persons who have been wrongly implicated, sentenced and brought to prison or a
similar institution. Obviously, such persons should be dealt with leniently because
by nature they prefer to avoid the company of recidivists and hardened criminals.
The insane criminals, on the other hand, commit crime due to certain mental
disorder and are considered irresponsible to their crime. They are therefore, suited to
clinical methods of treatment rather than penal servitude. Normally such criminals
are not recidivists.
The criminals by accident are also called "situational criminals”. They are not
habitual or professional offenders but lend into criminality per chance. Their crime
is never premeditated but is the result of momentary impulsiveness or soothing
opportunity in which the offender finds himself placed incidently. This is often true
with many of the sex offenders. There are no recidivistic trends among such
criminals.
The crimes committed by occasional criminals are often well planned and pre-
meditaled but these criminals do not accept criminality as a profession. The
treatment of such occasional offenders should depend on their psychological and
psychiatric condition. These offenders are most likely to turn recidivists if not
properly handled. They should therefore, be treated cautiously.
A habitual offender or a person habitually addicted to crime is one who is a
criminal by habit or by disposition formed by 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. Perhaps, imprisonment is the only alternative to prevent habitual
offenders from repeating crime.
There is yet another category of criminals known as white collar criminals.
They are persons of high social status who commit crime in course of their legitimate
1. cited in Ramamurthy v. State of Karnataka, (1997) 2 SCC 642.


business. These criminals are seldom detected or if detected, hardly punished.
Moreover, there is no social condemnation for such white collar criminals. It is for
this reason that there has been an enormous rise in white collar crime in recent
decades. The remedy suggested for repressing white collar criminality is to award
severe punishment to white collar criminals through stringent laws.
It must be stated that the aforesaid classification of criminals holds good to
both, male as well as the female offenders. It is, however, a different matter that
women generally commit offences which by their very nature, are hard to detect and
even if detected, are rarely reported or prosecuted. That apart, despite equality of
men and women before law, the fact remains that courts treat women more leniently
than men in matters of sentencing.1121
2. Experience has shown that individualised 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. It is for this reason that the power of the
Judge to keep a recidivist under detention for an extra-period than the term of his
sentence prescribed for that particular offence, has been withdrawn1122 in Britain.
3. Recidivists should be kept in prisons equipped with maximum security
arrangements. They should be under constant surveillance so that society is fully
protected against these miscreants.
4. 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 inculcate hope, self-confidence and self-
respect in the offender which would enable him to adjust himself to the conditions of
normal life in society.
It is also realised that mere treatment in penal institutions does not help in the
ultimate rehabilitation of habitual offenders as it cannot bridge the gap between the
individual experience and the stigma society attaches to the recidivists. It has
therefore, been rightly said that the punishment for crime never ends with the
completion of the prison-term but it rather continues as a life-long record and
sometimes it becomes difficult for the offender to return to the society as a decent
law-abiding citizen despite his sincere and genuine desire to live honestly. The
discharged prisoners are confronted with multifarious problems such as
stagmatisation, social neglect, financial handicaps and so on. Therefore, it is of vital
importance to develop after-care services as an essential requisite in the correctional
field. This can help in arresting recidivism in two ways, namely, (1) by bringing
about social rehabilitation of the offender, and (2) extending vocational rehabilitative
services. There is need for effective control, supervision and assistance of the
offenders in the
1121 Herman Mannheim : Comparative Criminology, Vol. II, p. 693.

1122 Barnes and Teeters : New Horizons in Criminology, (3rd Ed.) p. 59.
Recidivism 627
community. Since criminal is the product of the community, it is for the community
to devise ways and means to tackle this problem. Perhaps, setting up of People's
Committees to tackle the problem of recidivism right from the time of apprehension
of an offender to the final disposal of his case, may help in preventing recidivism to
a considerable extent.
5. Dr. Walter Reckless has suggested that there are two major factors which
contribute to recidivism. They are psychological aspects and social pressures.
According to him, psychological desires or propensities, such as restlessness and
aggression might be internal elements which drive a person towards recidivism.
Further, the external factors which may push a person towards criminality and
repetition of crime could be social pressures such as poverty, family conflicts,
neglect, lack of opportunities etc. Studies have shown that recidivists generally lade
in four elements which are essential attributes of a law-abiding citizen. They are :—
(i) lack of attachment to family and the community;
(ii) want of sense of responsibility and commitments;
(iii) disregard for morality and social values; and
(iv) absence of beliefs that forbid delinquency. If all these elements are
inherent in a criminal, he is less likely to become a recidivist.
Some recidivists chose criminality because it brings them recognition and
position and this is often a motivation for them to indulge in crimes. The notorious
sandalwood smuggler Veerappan1123 who was operating in dense forests bordering
Kerala and Tamil Nadu and committed as many as 138 murders and killed nearly
2000 elephants during the past twenty years is an illustration on the point.
Roshia Bob (1989) claims that the factors accountable for recidivistic tendency
in criminals may be countered by inculcating in them the elements of affection,
status, autonomy security and self-consciousness which may dissuade them from
committing crimes.
6. Last but not the least, 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 delay's. 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.
It must be stated that twenty-first century materialism has contributed
substantially to the growing incidence of recidivism. The concepts of morality,
mutual respect, fear, love and faith have lost their importance in modem 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 modem "criminal"
and award punishment which may suit the individual
1123 Veerappan was killed in an encounter with STF on 18th October, 2004 in the
Satyamangalam forest.
offender, the society as also the ends of criminal justice. Punishment as a form of
incapacitation seems inevitable in case of recidivists but it should not be unduly
harsh, barbarous or cruel in nature, else it would have an adverse effect on the
offender.
It is true that for centuries it was believed that crime could be effectively
controlled by inflicting severe punishment or penalties on the offenders, particularly
the recidivists, so that they would be made to realise their guilt, repent and pay for
their crime and at the same time could be restrained from repeating the crime in
future. In this manner, the society could be protected from the onslaught of criminals
by a rigorous method of punishment and intimidation. However, with new
developments in the field of psychology, sociology and criminal science, the
criminologists have realised the futility of this conventional approach to crime and
criminals. Therefore, the modem trend is therefore, to treat crime as a social and
individual phenomenon and prevent its recurrence or repetition by adopting an
attitude conducive to the re-socialisation and reformation of the criminal within the
community itself through an intensive treatment and after-care programme.
\
Chapter XXVI
Crime Prevention
P revention of Crime and protection against criminals may broadly be defined as

anything which reduces the incidence of crime. The focus is on making the
environment safe from crime and reducing the potential for crime in high-risk
situations. According to Brantingham (1976), the crime prevention strategy involves
three areas of action which he calls as primary, secondary and tertiary preventive
measures for ensuring crime-free environment reducing high-risk potential and
halting the possibility of future crimes respectively. Even the U. N. Universal
Declaration of Human Rights, 1948 had emphasised that crime prevention involves
multi-facted programmes for protection of witnesses and victim's assistance,
compensation, reparation, reconciliation, restoration and re-integration etc.
Primary prevention.—Primary prevention refers to location such as residence,
school, neighbourhood, community or society and involves altering the environment
in such a way that the root causes or at least facilitating factors of crime are
eliminated. Primary prevention can be based on social disorganisation theory which
stated that residential mobility and heterogeneity leads people to have little or no
interest in their neighbourhood and they prefer to move out leaving the area crime
prone.
Secondary prevention.—This refers to reducing opportunities for crime and
increasing the risks for committing crimes. It has lot to do with law enforcement
practices. This prevention technique has been criticised on the ground that persons
who lead deviant life styles, such as drug-addicts, peers etc. hardly respond to legal
prohibitions.
Tertiary prevention.—This term is derived from the field of medicine to
describe procedures to be followed after a threat of crime is manifest. This includes
personal injury or property insurance as well as self-protective measures by those
who have been victimised previously.
The Present Scenario
The mounting toll of criminality and alarming rise in juvenile delinquency has
become a problem of national concern all over the world. Most countries now
recognise that prevention of crime and treatment of offenders is not an isolated
problem ; that social defence and correction cannot be considered as unrelated to the
total culture and the social and economic fabric of society.1124 This is evident from
the fact that the 'battle against crime does not end at the court-room door but
continues through imprisonment to release and beyond". Despite improved
correctional methods and recent innovations in criminal procedure and sentencing
law, the problem of crime and criminal continues
unabated as a challenge to "new era of penology".1125
With the changing trends in penology, the old penal philosophy which rejected
any intervention by the behavioural sciences stands completely discarded. The age-
old belief that harsh and lengthy punishments are necessary for the security of the
society has become obsolete in the present context. Currently, the approach of
1124 Perlman & Allington : The Tasks of Penoloev (Third Ronrint 10 m _ •

1125 Perlman & Allington : The Tasks of Penology (Third Reprint 1970) Preface.
penologists to crime prevention centers round five major considerations, namely :

(i) The offender is essentially a human being. Therefore, greater stress
should be on individualisation of the offender for his reformation ;
(ii) The object of imprisonment is to bring about prisoner's re-socialisation
through the process of rehabilitation ;
(iii) There is greater need for legislative participation in the Jiaping of
correctional policy and subjection of correctional theory and practice to
the rule of law in the administration of criminal justice.1126
(iv) Control of delinquency implies ecological interpretation of sociological
problems. Therefore, in order to hold in check the incidence of crime,
the conditions conducive to criminality must also be kept under control.
(v) There is need for 'socialising' the administration of criminal justice by
greater public participation and intervention by representatives of the
community, both in criminal court proceedings and in the execution of
sentences. Thus, criminal justice and the community must be brought
closer together, since those who judge and those who are judged are
both parts of the same society. Social participation in the administration
of criminal justice is possible through introduction of jury system,
honorary magistrates, people's assessors, technical advisers and
administrative Boards.1127
Twentieth century pragmatism has brought in its wake a new wave of
reformation in the realm of penal justice and correctional services. The shift of
emphasis from "crime" to "criminal", that is, from the criminal act of the offender to
his personality, has brought about revolutionary changes in the field of penology and
criminal science. The modem systems of probation, parole, juvenile justice
reformatories and open institutions have proved potentially helpful in elimination of
isolationism from which preventive and correctional schemes have suffered for long.
New scientific methods are now devised for crime detection and apprehension of
criminals. The working of prison institutions has been remodelled to suit the modem
corrective methods of treatment of offenders. All these measures speak of the
growing concern of modem penologists for crime prevention.
The progress of penal science in different parts of the world has been more or
less on a uniform pattern. The old brutal and barbarous methods of punishment are
abandoned in favour of modern correctional measures. Sentencing procedures have
been radically changed to suit the requirements of the individual offender. As rightly
pointed out by Justice Theodore Levin, "the courts in sentencing of convicted persons
must be something more than mechanical instruments of punishment".1128 The Judge
should not lose sight of the fact that it is the, human being who stands before him as
a criminal. The modem criminal law administrators are not relieved of their
responsibility merely by sentencing and sending the convicted person to prison or a
similar institution ; but they have an active role to play in making the rehabilitation
of the offender possible through institutional methods.
Reviewing the progress of sentencing procedures in context of prevention of
crime, Curtis Bok suggests that we are presently passing through the fourth phase of
1126 Silving : "Rule of law in Criminal Justice" in ESSAYS IN CRIMINAL SCIENCE

(1961 Ed.). Chap. 5.
1127 Agarwal R. S. : Prevention of Crime (1977 Ed.) p. 46.
1128 Theodore Levin was the Chief Judge of the United States District Court for the
Eastern District of Michigan.
Crime Prevention 631
criminological development.1129 The earlier three phases, as pointed out by the

learned author are as follows :—
The first phase covering the period of seventeenth century and the first-half of
the eighteenth century when punishments were generally brutal, barbarous and harsh,
and the emphasis was on deterrence and retribution.
The second phase which covered the period of later half of the eighteenth
century and early decades of nineteenth century is remarkable in the history of penal
science because emphasis shifted from crime to criminal and individualisation of
offender became the cardinal principle of penal reforms.
The third phase of criminological development covers the period of past one
hundred years when "treatment" and not "punishment”, became the guiding principle
for all penological reforms. Greater emphasis was on the treatment of offenders
through clinical methods rather than confining them inside the closed prisons. A
number of minimum security institutions such as open air camps, prison-farms, etc.
were established for the rehabilitation of offenders.
In most countries, unprecedented rise in recidivism is perhaps the most
disturbing problem in relation to crime prevention in present times. The problem of
recidivism has always been discussed in the recent international conferences on
prevention of crime and treatment of offenders. It has been generally accepted that
recidivists and hardened criminals must be punished with long-term sentences to
ensure their elimination from society. 'There are, however, certain penal reformists
who firmly believe that correctional programmes can be equally effective in case of
recidivists as in case of other offenders. In their opinion the reformation of offender
must be sought within the society itself. Significantly, the working of open jails for
the rehabilitation of dacoits from Chambal ravines and Bundelkhand regions of
Madhya Pradesh had shown beyond doubt that even the most hardened and
dangerous criminals can be corrected and redeemed to society as law-abiding citizens
if they are properly treated through correctional institutions.
Another reason so often attributed to rise in crime-rate is the widespread
discrimination in the treatment of persons accused of crime on grounds of social
position and financial status. The criminal law procedure should be so amended as to
eliminate needless arrest and detention of suspected offenders. Persons should be
detained in custody only when absolutely necessary.
1129 Curtis Bok : Problems in Criminal Law. (1952), p. 58.

Making a headway in this direction the Supreme Court in one of its recent
judgment.1130 has ruled that a person can be put behind bars under a preventive
detention law only if the ordinary criminal law of the land i.e. IPC and other local or
special penal law is not able to deal with a situation.
Ordering release of eight persons including the petitioner Rekha who was put
under preventive detention law in April 2010, on charges of selling date-expired
drugs the Apex Court quashed the order of the Madras High Court which had
dismissed Rekha's habeas corpus petition.
Highlighting the need for custody and detention only when it is absolutely
necessary, the court interalia, observed :
"In our opinion, Article 22(3) (b) of the constitution which permits
preventive detention is only an exception to Article 21 which
guarantee's right to life and liberty. An exception is only an
exception, and cannot ordinarily nullify the full force of the main
rule, which is the right to liberty in Article 21. The Apex Court
observed that if a person is liable to be tried or is actually being
tried, for a criminal offence which can be dealt with under IPC or
any other penal statute, then preventive detention law cannot be
invoked in such cases. In other words, if the ordinary penal law can
deal with a situation, recourse to preventive detention law will be
illegal.
Rationality in punishment requires that criminal law should not allow any
disparity in trial or sentencing on the basis of social status of the offender. Courts
have at least four main types of sentences for mentally normal adults at their disposal.
They are admonition, fine, imprisonment and probation.1131 They must make use of
these methods rationally keeping in view the requirement of the accused who is
standing trial before them.
Besides the necessity for a change in legal attitude towards correctional
services, there is a need for greater legislative participation in shaping of penal
policies. The law should be flexible so as to adapt itself to the changing socio-
economic needs of society.1132 It is heartening to note that this principle has been
fully recognised by the Indian law-makers. The liberalisation of abortion law1133 and
the changes introduced by the Criminal Law First and Second Amendment Acts,
1983, in law relating to rape and dowry deaths1134 consequent to Mathura Bai's Rape
case,1135 are some of the illustrations to support this contention. Relaxation in legal
restrictions on gambling and liquor-consumption has not only reduced crime statistics
relating to these offences but also eliminated other allied crimes which were closely
linked with these illegal activities.
Recent trends in correctional measures have proved beyond doubt that only
1130 Directed by three judge bench headed by Justice Markanday Katju of the Supreme
Court dated April 6, 2011.
1131 The present trend is to offer compensation to the victims of crime by the courts by
way of punishment to guilty offenders.
1132 The Third United Nations Congress on the Prevention of Crime and Treatment of
Offenders, Agenda item (1965).
1133 The Medical Termination of Pregnancy Act, 1971. The Act came into force on April
1, 1972.
1134 See Shanti v. State of Haryana, AIR 1991 SC 1226 ; Sarojini v. State of M.P., (1993) 4
SCC 532 ; Brij Lai v. Prem Chand, AIR 1989 SC 1661.
1135 AIR 1979 SC 185.
one-fourth of the total population of criminals consists of incorrigible offenders

while the majority of them are corrigibles and respond favourably to the treatment
methods. It must be reiterated that treatment of offenders through modem clinical
methods symbolises society's preparedness to accept delinquents as trustworthy
citizens. The concept of individualised treatment through correctional measures
presupposes that offender is a deviant who can be redeemed to normal life in society
if adequate opportunities for rehabilitation are offered to him. The system of parole,
probation, indeterminate sentence and open prisons are some of the rehabilitative
techniques which find place in the modem penal programmes of most countries of
the world. Needless to say that these measures are intended to remove or reduce
offender's disposition to repeat the offence or break the criminal law in any way.1136
The corrective devices inter alia include :
(i) Custodial measures which deprive the offender of his liberty and test his
responsiveness to self-control, discipline, etc., within the institutional
life, help him to live as a law abiding citizen after his release.
(ii) Semi-detention method is intended to restrict liberty without completely
separating the offender from his occupation or family.
(iii) Reformative measures such as probation and parole enable the offender
to rehabilitate himself within the society.
Distinction between Crime Prevention and Treatment
Though prevention of crimes and treatment of offenders, both are directed
towards the same end, i.e., elimination of crime and criminals from the society, but
the two differ in their approach and methodology. The main points of distinction
between prevention and treatment are as follows :—
(1) Crime prevention is a stage prior to incidence of crime whereas treatment
follows the commission of crime and conviction of the offender.
(2) The object of crime prevention is to check the occurrence of crime while
the purpose of treatment is to prevent repetition of crime.
(3) Crime prevention essentially involves elimination of conditions which
are conducive to crime causation but treatment involves reformation of
the offender to reclaim him as a useful member of the community.1137
(4) In crime prevention, is the police which plays a major role and the courts
and prison institutions have only an indirect role to play. As against this,
in the treatment of offenders, the court and correctional institutions have
a vital role to play and the police merely acts as an assisting agency.
Prevention of Juvenile Crimes
The constantly mounting toll of juvenile delinquency is presenting a major
threat to problem of crime prevention in recent decades. Commenting on the problem
of juvenile offenders, Thad F. Brown observed that the crime problem of the day is to a
large extent a problem of youthful offenders.1138 In India, the legislation on Juvenile
Justice (Care and Protection of Children) Act, 2000 is a beneficial statute fulfilling
the constitutional obligation under Article 39 (f) and seeks to provide security and
protection to neglected and delinquent juveniles within the framework of law. The
Act for the first time recognises that the 'child' is a national asset and it is the duty of
1136 Nigel Walker : Sentencing in a Rational Society (1972) p. 98.

1137 Sutherland & Cressy : Principles of Criminology (6th Ed.) p. 590.
1138 Thad F. Brown's article entitled 'Crime Prevention and the Youthful Offender',
published in the Police Year Book, 1957, pp. 77-80.
the State to look after the child with a view to ensuring development of its
personality.
Despite special trial arrangements for youthful offenders in juvenile Boards and
institutionalising them in a reformatory or Borstal, there seems no remarkable
progress in mitigating this evil. Although prevention of crime is primarily a police
function but the parents and guardians can actively help in preventing their children
from landing into delinquency or anti-social behaviour. The institution of "family" or
"home" plays a vital role in controlling juvenile delinquency. The neglect of wards
by their parents is perhaps the basic cause of juvenile misbehaviour. The parents
should therefore, be made legally liable and even penalised in case of failure on their
part to exercise parental control or supervision over their children.
Some criminologists have drawn attention to the fact, that juvenile delinquency
is the result of the influence of mass-media, movies, television, etc., on human mind,
particularly the teenagers. The television and films have the maximum impact on the
viewers due to their audo-visual impact. Most of the films and T.V. serials depict
scenes of sex, violence which pervert the minds of youngesters and they often tend to
imitate the same in real life situations. Likewise, pornographic literature also has an
unwholesome influence on the impressionable minds of the youths. It is therefore,
desired that censorship mechanism should be strengthened and the producers and
directors of films, television etc. should be made to realise their social responsibility
in creating a healthy socio-cultural environment in the society.
Criminality and domestic violence in families also deserve attention in the
context of crime prevention. The world today is witnessing a rapid change in values
culminating in a breakdown of time-honoured family system. The emotional
pressures and frustration often end in family violence and victimization of women
and children. Poverty, dependency of women and insufficient housing generally lead
to violent behaviour in the family. Though family violence appears to be an age-old
phenomenon, it was not questionable in the past due to patriarchal family system. It
is in the wake of women's movement in early 1970's in Europe and late 1980's in
India, that attention of sociologists and criminologists was drawn to this kind of
violence and need for its prevention became eminent. It is generally agreed that in
India and elsewhere, the victims of domestic violence are mostly adult women,1139
married or otherwise, and unwanted children. Though husbands and old parents may
also be victims, but in rare cases only.
1139 The incidents of dowry-deaths and wife beating or burning are common occurrence
in India in recent years.
The acts which are included in family violence are women battering and their
physical and sexual abuse causing them untold pain and suffering. Violence against
children includes use of physical force causing injury and neglect.
Every kind of domestic violence is generally viewed as private affair and it
becomes extremely difficult for law enforcement agencies to intervene in domestic
violence incidents. Hardly ten per cent of women dare to file complaint against their
husband or in-laws and get them arrested. Most women who approach the police
really do not want to initiate formal proceeding but instead only look for help.
Therefore, general public disapprobation seems to be the only remedy for offences
involving domestic violence.1140
It is being increasingly felt that marital rape is a common form of domestic
violence. There is proposal before the Law Commission for inclusion of marital rape
as an offence under the criminal law, but most crimilogists believe that the provision
may be misused and that our society is not yet prepared for such a law.
Yet another potential cause of recidivism is mushrooming of slums due to rapid
industrialisation. This has resulted into tremendous rise in slum-related crimes. Most
of these slums are dens of illicit distillation, gambling, drug-peddling and even
prostitution. Besides, there are frequent scuffles, attempted murders and illegal
relations leading to heinous crimes. Slum-dwellers also indulge in burglaries and
chain-snatching. Some psychologists feel that it is futile to think that crimes in this
section of society will ever disappear completely as it is an off-shoot of our socio-
economic system. Slum related crimes have assumed the form of a growing industry
in which most of the beginners in crime turn into recidivists and pose a serious threat
to national economy and society.
From the foregoing discussion it is evident that social conditions and penal laws
have a dose bearing on the problem of crime prevention. Again, crime being a
relative term, the concept of "criminal" also varies from place to place depending on
the relevent provisions of criminal law. These conceptual differences arise from
variations in legal definitions. For example, murder under the Indian Penal Code is
more or less similar to that of a manslaughter under the American criminal law.
Therefore, amending substantive law of crime according to need of the time would
indirectly help in reducing the incidence of crime at a given place. It is for this
reason that the American Law Institute prepared a Draft of Model Penal Code in
1965. The Republic of Germany also prepared its retribution orient'd Draft Penal
Code in 1962. The New Swedish Penal Code which came into effect from January 1,
1965 lays greater stress on rehabilitation rather than retribution or deterrence. It must
be stated that there is an urgent need for the re-statement of Indian penal law and the
law of evidence which are more than 140 years old1141 and are hardly suited to the
changed socio-economic and political conditions of the Indian society. The ultimate
object of criminal law should be to create conditions which are conducive to
progress and prosperity of the community and afford "safe life" to people in
general.1142
Suggested changes in Criminal Law & Procedure
1140 Year 2001 is referred to as the Year of Women's Empowerment. Though India has
adopted the Prevention of Domestic Violence Against Women Act, 2005 which is a progressive
legislation, but it needs to be gender-neutral, providing equal protection to both men and
women.
1141 The Indian Penal Code was enacted in 1860 and the Evidence Act in 1872.
1142 Hall Jerome : Studies in Jurisprudence and Criminal Theory, p. 253.
From the point of view of social perspective and suppression of criminality, the
following changes in the Indian criminal law and procedure may be suggested to
make it responsive to the needs of the Indian society :—
(1) The existing law does not sufficiently provide for reparation or
compensation to victims of the crime for injuries caused or loss suffered
by them due to the offender's criminal act. Punishment of the accused
may offer some consolation to the victim but it offers no pecuniary
satisfaction to him. It is, therefore, desired that compensation be
awarded to the injured parties particularly, in cases of crime relating to
property. The payment of compensation may be made from the money
recovered by the State from the offender by way of fine. It is further
suggested that imposition of heavy fines instead of imprisonment in case
of crimes relating to property seems to be a rational policy in the present
context of penological development. It is heartening to note that more
recently, a judical trend is developing to award compensation to the
victims of police atrocities or deaths or serious injuries caused due to use
of third degree methods by police officials.1143 The compensation is to
be paid by the guilty official who is accountable for these wrongs.
(2) The existence of double sets of law for certain offences present
difficulties for the magistracy to determine punishment for offenders in
such cases. For example, the law relating to bribery in India is governed
by two different sets of laws, namely, Section 161 of the Indian Penal
Code1144 and the Prevention of Corruption Act, 1988. So also is the case
with the offences relating to trafficking in girls and minors for immoral
and illegal purposes.1145 It is therefore, desired that dichotomy of legal
provisions for the same offences should be avoided to make sentencing
more definite and effective. The other examples are adulteration laws,
pollution laws, nuisance etc.
(3) In view of the changed socio-economic conditions of the present time,
there is an urgent need to re-classify the offences contained in the Indian
Penal Code. With the growing political indiscipline in the country and
criminalisation of Indian politics, it has become necessary that political
offences be included in the Penal Code under a separate chapter. The
cases of defections, resort to corrupt
practices,1 booth-capturing, rigging, etc., during election campaigns and such other
offences should be made severely punishable under the Penal Code itself. Likewise,
white collar crime should also find place in the Indian Penal Code under a distinct
head.
Speaking about the magnitude of corruption in India, Bertrand de Speville, the
International Anti-corruption expert who was appointed as consultant to the State
Government of Andhra Pradesh, (May 2001) was startled to find corruption so
rampant in almost every department of the State Government. According to him, it is
1143 See Neelbati Behra v. State of Orissa, AIR 1993 SC 1960 ; Gauri Shanker Sharma v.
State of U.P., AIR 1990 SC 709 ; Saheli v. Police Commissioner, Delhi, (1990) 1 SCC 422 .
1144 Sections 161 to 165-A are omitted by the Prevention of Corruption Act, 1988 w.e.f.
September 9, 1988.
1145 The relevant provisions are contained in Section 372 of the Indian Penal Code and
there is also a special enactment, i.e., the Immoral Traffic Prevention Act, 1956 as amended in
1986.
either need or greed which is responsible for making an individual a corrupt person
and it is not correct to think that rich people are less corrupt and poor people are more
proneto
. Gieed is the motivation (or corruption for everyone.
practices,1146 booth-capturing, rigging, etc., during election campaigns and
such other offences should be made severely punishable under the Penal
Code itself. Likewise, white collar crime should also find place in the Indian
Penal Code under a distinct head.
Speaking about the magnitude of corruption in India, Bertrand de Speville, the
International Anti-corruption expert who was appointed as consultant to the
State Government of Andhra Pradesh, (May 2001) was startled to find
corruption so rampant in almost every department of the State Government.
According to him, it is either need or greed which is responsible for making
an individual a corrupt person and it is not correct to think that rich people are
less corrupt and poor people are more prone to corruption. Greed is the
motivation for corruption for everyone.
(4) Crimes relating to person should be punishable with a term of imprisonment
while those relating to property should preferably be punished with fine or
reparation of damages to the affected parties. Unwanted long terms of
sentences should be avoided to make rehabilitation of the offender possible
after his release. Likewise, too short a sentence will also defeat the object of
punishment. A rational policy in this regard would be to determine the term
of sentence according to the gravity of crime, sociology of the offender and
his personality traits.
(5) As to the retention or abolition of capital punishment, the generally accepted
view is that its abolition should not be over-emphasised. The retention of
death sentence undoubtedly serves as an efficient deterrent for recidivists and
hardened criminals. The retention of this penalty in the statute book is further
justified on the ground of protection of society from dangerous and
incorrigible offenders. It would therefore, be expedient to retain death
penalty, though in practice, it may be sparingly used in rarest of rare cases as
held by the Supreme Court in the historic case of Bachan Singh v. State of
Punjab.1147 This contention also finds support in the report of the Law
Commission of India.
(6) The modem western trend favours deletion of all such offences from the Penal
Code which are solely dependent on morality. In England, homosexuality is
no longer an offence if committed in non-public place. Likewise, in India
many States have scrapped prohibition laws because they are convinced that
it is difficult to put a check on liquor habits of people by imposing external
legal restrictions unless the liquor addicts themselves voluntarily give up
drinking being convinced that it is a vice. So is also the case with gambling and
1146 The Tahelka Dot Corn's exposure (20th March, 2001) on corruption in high ranks is the latest
illustration showing how politicians, bureaucrats and armymen do not flinch from taking bribe even
at the cost of nation's security. The Common Wealth Games scam and 2-G spectrum fraud involving
politician Kalmadi and Telecom-Minister A. Raja respectively (2010-2011) are yet glaring instances of
deep rooted corruption involving crores of rupees.
Dowry is another illustration on the point. Despite stringent provisions of the Dowry Prohibition
(Amendment) Act, 1986, doubts are being expressed about the abolition of dowry in actual practice.
The Declaration provides that except where otherwise specified, the term 'women' encompasses "girl
children".
"satta" etc., which have become a common menace these days. It is true that
there are many offences which cannot be suppressed by legal penalties alone
unless the members of society voluntarily begin to think that what they are
doing is morally wrong and against social interest.1 However, keeping in view
the Indian taboos it is difficult to agree with the western view that most sex-
offences should be deleted from the statute book because they largely depend
on moral perceptions. Unquestionably, this cannot be recommended as an
effective measure to reduce sex-crimes in India.
(7) Elimination of violence against woman should be among the priorities in the
field of crime prevention and criminal justice administration. The Model
Strategies formulated under the UN Declaration on the Elimination of Violence
Against Women2 (1993) have been adopted in India in the form of Prevention
of Domestic Violence Against Women Act, 2005, which provides that any act
of gender biased violence that results in or is likely to result in, physical, sexual
or psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or
private life must be sternly dealt with. Many quarters suggest that the Act is
gender-biased and provides for preferential treatment to women but in fact, it is
not so. The Act aims at ensuring that any inequalities or forms of discrimination
that women face in achieving access to justice, particularly in respect of acts of
violence, must be redressed.
(8) Though the Habitual Offenders Act in various States provide for regulatory
measures such as reporting by the habitual offender about his whereabouts or
residence at fixed intervals, domiciliary visits of police officers to the residence
of potential offenders, extemment, security bond under section 110 of the Code
of Criminal Procedure, 1973, etc., but these measures have not proved to be
very effective in controlling recividism. Therefore, it would be advisable to set
up corrective institutions on the pattern of Maharashtra and Uttar Pradesh for
selective offenders keeping in view their age, health, antecedents for their
rehabilitation and re-socialisation. Suitable work or vocational training may be
provided to inmates in these correctional institutions.
(9) It has been realised that vagrancy may be a potential source of criminality. The
English and the American criminal law have made statutory provisions in their
vagrancy laws to keep the suspects and undesirable persons well under control
and prevent them from indulging into disorderly behaviour. In India, during the
East India Company rule, Regulation X of the Bengal Regulation XXII of 1873
provided that the police could apprehend a person who was
without any means of subsistence and who could not give a satisfactory
account of himself and the magistrate was empowered to employ such person
for some 'public work'. During the British rule in India, Section 109(b) of the
Code of Criminal Procedure, 1898 empowered a magistrate of the first class
to secure bond with security for good behaviour for a person who was of
doubtful antecedents. No such provision is, however, incorporated in the
Code of Criminal Procedure 1973. It is therefore, felt that an anti-vagrancy
law may be enacted in the country to prevent vagrants from being turned into
criminals. It would be a forward step towards crime prevention.
(10) The misuse and abuse of the law of preventive detention such as FERA,
MISA, COFEPOSA, etc., in recent years particularly during emergency
period, have led to serious re-thinking to repeal these statutes. In most of the
cases, the final authority for detention is the officer-in-charge of the police
station whose report is generally rubber-stamped in ton by Superintendent of
Police or the District Magistrate. The law relating to preventive detention
therefore, needs to be modified so as to prevent its abuse and misuse.1148
The recent judgment of the Supreme Court handed down in Rekha's case
decided on 6th April 2011 prohibiting the use of preventive detention for
offenders who are charged with any offence under the Indian Penal Code or
any other special or local penal criminal law, is indeed a welcome step in the
direction of preventing misuse of preventive detention law by the police or the
investigating authorities.
The Court ordered the release of petitioner Rekha alongwith seven
others who were placed under preventive detention law since April 2010 on
charges of selling date expired drugs and quashed the order of the Madras
High Court and allowed the appeal.
(11) The system of collection of intelligence and reporting should be overhauled
so that facts are reported correctly. Many a times persons prompted by evil
motives such as spite, jealousy, anger and self-interest do not even hesitate to
set the law into motion against their enemies or rivals. Therefore, if the
intelligence and police personnel perform their duties honestly without being
influenced by external pressures or party politics, then only respect for law
enforcement agencies can be restored.
(12) Undoubtedly, crime control is the responsibility of police agency but there is
need to recognise the role and importance of State agencies other than the
police, such as customs and excise officials, revenue authorities, medical and
other social service agencies in prevention of crime. They may help in dealing
with particular
offences, offenders and victims pertaining to their respective field. For
example, in drug-trafficking the Customs and Excise professionals may
be involved. Similarly, corporate offences, may involve factory officials
or environmental agencies. The active cooperation of these State
agencies in prevention of crime pertaining to their respective field will
certainly help the police agency in its crusade against crime prevention.
It must be stated that crime problem is a complex and complicated one.
1148 The repeal of the TADA in May, 1995 is perhaps a right step in this direction. Its substitute
POTA (Prevention of Terrorist Activities Act, 2002 has also been repealed by the Unlawful Activities
(Prevention) Amendment Act, 2004 which contains provisions relating to prevention of terrorism in
the principal Unlawful Activities (Prevention) Act, 1967.
The crime results from multiple factors intricately inter woven with one
another. Therefore, efforts of police alone to control crime will meet
with limited success, unless there is a multi-pronged attack from
different agencies of society and also an endeavour is made to eradicate
the real causes of crime, like poverty, ignorance, unemployment,
deprivation etc.
(13) Frequent interference in investigation of cases by politicians or
politically motivated prosecuting machinery headed by politician
lawyers who are more interested in party in power, has distorted the
image of criminal law administering agencies, particularly the police.
Therefore, there is a manifest need for determined efforts to deal with
this problem more effectively.
(14) Crime reporting in India continues to be faulty even to this day. As a
result of this, crimes are either suppressed, minimised or not reported.
The reporting procedure therefore, needs to be overhauled.
Problems involved in Crime Prevention
An objective evaluation of crime prevention programme further suggests that
there is a growing need for enhancing the existing powers of the police relating to
arrest, interrogation and search of suspected persons. Police officials should be
empowered to arrest a suspected offender even without a warrant. Experience has
shown that much time is lost in observing the procedural formalities of law which
afford sufficient opportunity for the offender to escape detection. Moreover, it is quite
often noticed that proceedings against the apprehended person are dropped on flimsy
grounds of procedural irregularity or jurisdictional error etc. As a result of this, many
offenders go unpunished due to procedural flaws in the system of arrest, detention,
interrogation and search which certainly threatens the security of society. That apart,
the police in India is looked with distrust and bias. They are generally accused of
misuse of power. In situations warranting stem action the police is often criticised for
atrocities and excesses. Public criticism has a demoralising effect on police officials
and they find it difficult to perform their law enforcement duties with confidence
without an active support from the public. The lack of public-police co-operation ,is
therefore, a contributing factor for the failure of efforts to cope with the rising
incidence of crime and delinquency.
It must be recognised that the devastating effect of corruption is perhaps the
major obstacle in effective implementation of the crime prevention programmes. In
order to promote integrity, honesty and responsibility among public officials with a
view to preventing corruption, adequate measures need to be taken to evolve
transparent systems of procurement and developing codes of conduct for judicial and
prosecution services. The menace of corruption has assumed transnational
dimensions over the years affecting all societies and economies. Therefore, it has to
be encountered with stringent regulatory measures both at the national as well as the
international level. In India, notorious criminals often manage to escape detection and
prosecution by resorting to corrupt practices or bribing the concerned officials which
has a negative impact on common man thereby tarnishing the image of criminal
justice administration system.
Another important aspect of crime problem relates to certain new offences such
as bank-robberies,1149 forgery, counterfeiting, causing death by slow poisoning or

committing theft or robbery by administering anesthetics, etc. which are of a
comparatively recent origin. They are essentially an outcome of modem
developments in science and technology.
The development of Information Technology and widespread use of electronic
communications has brought with it new challenges in the form of computer related
crimes on global networks which require new legal and technical mechanisms to
combat and fight these cyber offences. These crimes are committed from or against a
computer or network and they differ from terrestrial crimes in four ways, namely,
(i) It is easy to learn how to commit them;
(ii) they require relatively less resources as compared to damages caused,
(iii) they can be committed without being physically present on the spot; and
(iv) they are not clearly illegal.
The real problem faced in combating these crimes is that the existing laws are
un-enforceable against such crimes because of the transnational nature of cyberspace.
The cyber criminals can defy the conventional jurisdiction of foreign nations by
originating an attack from almost any computer in the world, passing across multiple
national boundaries, or designating attacks that appear to be originating from foreign
sources. Therefore, there is need for an International model legislation to tackle cyber
crime.1150
Politicalisation of democratic institutions and party-politics of politicians have
added new dimensions to the crime problem. Group rivalries, caste based politics and
vote-catching malpractices have a devastating effect on public order and tranqaillity
as the incidents of tensions, assaults, violence, arson, kidnapping and even murders
are common occurrence in the state of political turmoil.1151 Prisonisation is hardly an
appropriate remedy for such offenders. Moral education and creative awareness
about social responsibility may perhaps bring these law-violators on proper track.
Terrorism is yet another crime problem of recent origin. Terrorists indulge in
large scale violence and anti-social activities which have disturbed public life. The
States of Punjab, Jammu & Kashmir and even Assam and north-east border regions
are in the grip of terrorism these days. The terrorists risk their life under a compelling
moral conviction and indulge in a kind of heroic aura. They are fully aware that their
life is at stake but the fascination of violence and risked death for possible martyrdom
tends to make them law violators. Needless to say, that death penalty is hardly a
suitable punishment for terrorists as it would mean accepting their misconceived
values. Perhaps, deprivation of civil rights and public indignation may be a better
alternative for such murderous offenders.
1149 With the expansion of banking in rural areas, bank robberies in India have become a
common occurrence.
1150 CBI's first Cyber Crime Digest released on 23rd Feb., 2001. It covers cyber crimes such as
pheakers, fraud, hackers, pornography, viruses, pedophiles, harassment, e-mail, security, Data
Diddling, piracy, stalking etc. For details See Dr. Vishwanath Paranjape's : Dimension of Cyber
Crime & Preventive Laws in Law (2010) CLA.
1151 The anti-reservation stir launched by the students against the implementation of Mandal
Commission Report in Aug-Sept. 1990 is an illustration on the point in which there were large
scale arsons, road blockades, Bundhs and self-immolation attempts by the students. Several lives
were lost and property worth crores of rupees was destroyed in this mass agitation. The agitation
launched by Gurjars of Rajasthan in 2008 and again in 2011 blocking road and rail traffic for
days together to pressurise the government to accept their demand for reservation as OBC in
government jobs etc. is another illustration on the point.
The Asian and Pacific Regional Preparatory Seminar held in Bangkok on 29-31
March, 2004, emphasised the need for international cooperation to fight against
terrorism and links between terrorism and other criminal activities which are a threat
to internal and external peace and security. The seminar recognised that action
against terrorism could not be effective within the framework of the mandate of the
Terrorism Prevention Branch as recommended by the United Nations. Regional
cooperation to counter terrorism was the need of the time.1152
Growing awareness of criminals about new methods of criminality and devices
to escape detection makes it necessary for the law enforcement agencies to acquaint
themselves with the newer techniques of crime and device measures to ensure crime
detection. Some of the more recent detection devices are the use of fingerprints or
foot-prints, forensic ballistics, truth-telling drugs, tapes, polygraph lie-detector,
computers, etc. These methods have proved immensely useful in spotting out
criminals. The admissibility of confession made by the accused under the influence
of truth telling drugs has, however, been seriously questioned by certain legal
authorities. They argue that such a confession cannot be accepted as a reliable piece
of evidence because it can hardly be said to have been made voluntarily.1153
It must be realised that criminality cannot be dealt with effectively without
adequate knowledge of forensic science. Unfortunately, this area has remained fairly
neglected in India. Therefore, there is need to develop expertise in the field of
forensic science which may be used in investigation and detection of crimes. More
recently, the science of hypnotism is also being used for crime detection and police
officials are being trained in this branch of knowledge at the Forensic Training
Institute at Calcutta.
Utilisation of the services of 'police dogs' (Sniffer Dogs) in spotting out
criminals is one of the most significant developments in the area of crime detection in
recent times. The device is extensively being used in tracing out the offenders and
detecting crimes which are committed under mysterious circumstances.1154 It is
significant to note that in cases where the services of police sniffer-dog are utilised
for the detection of crime, it is necessary to ensure that the place of its occurrence
must be left completely untampered. The sniffer-dog must be brought to the place of
crime within fortyeight hours of its occurrence. There is again a controversy about
the evidentiary value of the detections made with the assistance of police-dogs. The
American Courts accept police sniffer-dog as a valid piece of evidence against the
accused provided it corroborates with other evidence in the case. But if this evidence
is not corroborated by other evidence, then in that case, it cannot be accepted as an
evidence sufficient enough to warrant conviction of the accused. The Indian law also
takes a similar stand in this regard. The reason advanced for the necessity of
corroboration of police-dog's evidence is that these trained dogs may err in tracing
out the offender correctly.1155 Moreover, they being animals, can neither speak nor be
subjected to cross-examination.
Crime control essentially involves the services of well trained personnel who
1152 ASIAN Declaration on Terrorism (2002).

1153 R. Deb : Principles of Criminology, Criminal Law and Investigation, Vol 1 (2nd Ed.)
p. 47.
1154 The services of Police sniffer dogs are being extensively utilised for detection of
terrorist activities in India and elsewhere.
1155 More recently, some sniffer dogs are also given special Narcotic Training in the National Dog
Training Centre, Delhi after their basic obedience training. The police dogs from Nepal, Bhutan,
Mouritius, Thailand, etc., are also being trained in this training centre.
possess adequate knowledge about different kinds of offences and the related
statistical data about crime and criminals. It must be remembered that the magnitude
of the various form of crime in a particular State can be ascertained by an analysis of
the crime statistics. The crime statistics generally do not present a true picture of
crime incidence because many a crimes remain undetected and many more
unreported. Moreover, statistics being the measuring rod for gauging the efficiency
of the institutions connected with crime and criminals, the police, the courts and the
prisons, may be inclined to furnish deceptive figures about their performance.
Despite this possibility, the fact remains that statistics do play an important role in
crime detection. Rise in crime statistics of a particular area draws the attention of law
administrators to locate the cause of mounting criminality in that region and suggest
measures to combat it. Crime statistics therefore, provide necessary guidance and
clue to those who are concerned with the prevention of crime. Computerisation of
statistics is sure to put a check on the possibility of manipulations of manual statistics
and present a true picture of crime incidence. It is heartening to note that the police
headquarters of most of the States have a separate Computer-Department of their
own for this purpose.
In India, the CRIME IN INDIA published by the National Crime Bureau,
Ministry of Home Affairs, Government of India, brings out annual survey of
incidence of total cognizable crimes under the Indian Penal Code and the local and
special laws. Although these statistics do not reflect the actual extent of
crime in the country as a whole, distinct trends are, however, easily discernible
from them. It is on the basis of these statistics that strategies for prevention of crimes
and repetition thereof are planned by the criminal law administrators.
Law's delay has often been treated as a potential hindrance in crime prevention.
With the loss of time between the incidence of crime and punishment of the offender,
the gravity of crime is completely lost. It is therefore, desired that criminal trials
should be speedy and offenders should be expeditiously punished so that the law
does not lose its deterrent effect.
The increasing role of psychology and psychiatry in the field of penology has
helped in understanding the problem of crime and criminals in its proper perspective.
Criminality is now attributed to psychiatric defects in the offender. It is now
universally accepted that infliction of pain and suffering through imprisonment
serves no useful purpose for the rehabilitation of offenders. As stated earlier, the
basic philosophy that underlies the modem clinical methods is that the offender
should be treated and not punished. It is because of this fundamental perception that
the importance of prisons is receding day by day and correctional measures such as
probation, parole, open camps and reformatories are being extensively used for the
rehabilitation of offenders. The modem clinical measures stress on the need for a
deeper insight into the human nature and psychology working behind the offender.
The goal of modem penology is to bring about a change in the mentality of the
criminal through a process of moral education and social reformation.1 It must be
conceded that crime is not a unitary phenomenon but a composite reaction of
multiple factors.2 Therefore, no single theory can provide a satisfactory explanation
for the varieties of the behaviour involved3 in the criminal act. Reformation of the
offender should be brought about within the community itself through the process of
rehabilitation.
In drawing up any programme for crime prevention, it must be realised that
mere treatment does not help in the ultimate rehabilitation of offenders. The stigma
which the society attaches to the released inmates continues as a life-long punishment
for him even after the end of the period of his incarceration. Therefore, it sometimes
becomes difficult for an offender to go back to the community as a decent citizen
despite his sincere and genuine desire to live an honest and upright life. The social,
economic, psychological and legal problems faced by the released prisoner make his
life difficult. Therefore, it is of vital importance to develop adequate after-care
services as an integral part of the correctional penology. It can help a discharged
inmate in his social as well as vocational rehabilitation. Britain has introduced hostel
service for the released prisoners to provide them shelter and protection. Similar
system may be adopted in India which may help in prevention of crime to a great
extent.
According to noted criminologist Nigel Walker one of the indirect techniques of
crime prevention is reduction of opportunities for criminal acts. This includes control
over the sale of fire-arms, explosives, poisons, etc., and restrictions on holding public
meetings, prohibiting illegal entry and adequate lighting of public places and roads. It
will make the task of opportunity-seeker criminals difficult.
1. Carrel Alexix : Man the Unknown, pp. 240-41.
2. Sutherland and Cressy : The Principles of Criminology, 6th Edn. p. 391.
3. Void. G. B. : Theoretical Criminology, p. 314.
International Perspective of Crime Prevention
The subject of crime prevention and treatment of offenders has received
attention of various nations all around the world. Efforts are being continuously
made to work out a common strategy for crime prevention and treatment of prisoners
which may be acceptable to all the countries. For this purpose international
Congresses are being held every five years under the auspices of United Nations to
discuss the problems relating to crime prevention and suggest measures for effective
treatment and rehabilitation of offenders. The details of the deliberations of the
various crime prevention Congresses held ever since 1955 are given hereunder :
United Nations Congresses on the Prevention of Crime and the Treatment of
Offenders
The United Nations Crime Congresses bring together representatives of the
world's national governments, criminal justice professionals, scholars of
international repute and members of concerned non-governmental organizations
(NGOs) to discuss common problems, share experiences and seek viable solutions to
crime. Their recommendations have impact on legislative and policy-making bodies
of the United Nations and national and local governments.
The First Congress 1955 (Geneva)
In all five hundred and twelve participants met in Geneva, Switzerland, to
convene the first UN Crime Congress. Their credentials were strong enough and
their backgrounds sufficiently diverse to lend credibility to this fledgling attempt at
international cooperation in criminal justice policy. There were delegates from 61
countries and representatives from international organisations such as the
International Labour Organisation (ILO), the United Nations Educational, Scientific
and Cultural Organization (UNESCO), the World Health Organization (WHO), the
Council of Europe and the League of Arab States; and from 43 NGOs.
At this Congress, held in the heart of Western Europe, the nations of Europe
fielded the greatest number of governmental delegations (in 1955, half the world's
territories were not yet independent and were not represented at the United Nations).
The topics of the First Congress accordingly reflected the pressing concerns of post-
war Europe. There was an urgent need to set standards for the prevention of crime
and treatment of prisoners whose numbers were swelling due to the turmoil and
black-markets of the war and post-war years. The poignant and bewildering question
of how to respond to juvenile delinquency, which was taking root among young
people was another focus of attention.
Consideration of the proper functioning of penal institutions led to the drafting
and adoption by the Congress and subsequent approval by ECOSOC of the 95
Standard Minimum Rules for the treatment of prisoners. Whatever the extent of their
crime, it was felt that prisoners are entitled to human dignity and minimal standards
of well-being. This view was especially supported by the delegates present who,
during the Second world-war occupation of countries by facist powers, experienced
brutality and deprivation while incarcerated. The carefully thoughtout,
comprehensive provisions of the Standard Minimum Rules and the broad
representation of national and professional viewpoints incorporated therein exerted a
strong moral pressure which brought about improvements in prisons around the
world. Its provisions are frequently cited by prisoners protesting sub-standard
conditions. The success of the the standard minimum rules paved the way for many
other international models, standards, norms and guidelines touching on every aspect
of criminal justice and set a precedent for United Nations initiatives to humanise the
administration of criminal justice by principles agreed upon by the world
community.
Other matters relating to the operation of penal institutions considered by the
first Congress included recommendations for the selection, training and status of
prison personnel; possibilities for "open" penal and correctional institutions; and
appropriate use of prison labour for effective prevention of crime incidence.
The discussion on prevention of juvenile delinquency attracted the greatest
number of participants at the this Congress. Juvenile delinquency was treated as a
broad category under which problems relating to youthful offenders as well as
abandoned, orphaned and maladjusted minors were dealt with. Prevention was
deemed to be the operative concept and the problem was analysed in its social,
economic and psychological perspective.
The Second Congress 1960 (London)
At the invitation of the Government of the United Kingdom of Great Britain
and Northern Ireland, the Second Congress was convened in London. Increased
participation reflected the addition of newly independent nations as member States.
The representatives of 70 Governments were in attendance, along with delegates
from 50 NGOs. In addition to the international bodies involved in the First Congress,
the Commission for technical assistance in Africa South also participated in the
Congress. All in all, there were 1,131 participants, 632 of whom attended as
individuals. The large percentage of attendees representing NGOs were chosen
because of their scholarly credentials reflected the prevailing view that scientific and
social analysis were required to tackle this complex problem at hand.
Once again juvenile delinquency was on the agenda. The deliberations involved
newly emerging forms of delinquency, their origin, prevention and treatment; the
possibilities of special police forces for the prevention of youthful offences; and the
impact of the mass media on the problem. Debate posed supporters of broad
treatment programmes for all manner of youthful maladjustments against those who
perceived a distinction between the maladjusted and young people who commit
crimes for more straightforward reasons. Proponents of the latter view argued that
not all delinquents are socially deprived; moreover, no one, juvenile or adult, is
perfectly adjusted in every respect. The outcome of the debate was a
recommendation that the concept of juvenile delinquency should be restricted to
violations of criminal law, excluding vaguely anti-social postures or rebellious
attitudes which are widely associated with the process of growing up.
The addition of new member States to the United Nations required broadening
of the largely European perspective of the first Congress. This led to a precedent-
setting analysis of crime and criminal justice in relation to overall national
development. Two general reports were submitted to the Second Congress on the
"Prevention of types of criminality resulting from social changes and accompanying
economic developments in less developed countries." These examined the relation
between socio-economic development and crime prevention in the light of available
data on demography, the environment, economics, culture, town planning,
industrialisation and migration. It was recommended that rational planning and social
policy-making should be applied to the problem of crime. It was generally accepted
that improvement in economic condition is not necessarily a contributing factor to
lessen criminality. Unevenly distributed economic growth can also provoke criminal
activity.
The Third Congress 1965 (Stockholm)
The Third Congress, convened in Stockholm, (Sweden) addressed the ambitious
theme of "Prevention of Criminality". The work of the Congress was propelled to a
large extent by the enthusiasm of the Swedish hosts, who had embarked on a
comprehensive national experiment in crime prevention. Topics on the agenda
included a continuation of the discussion on social change and criminality; social
forces and the prevention of crime; community-based preventive action; measures to
curtail recidivism; probation policies; and special preventive and treatment
programmes for young adults, who constitute the most crime-prone sector of the
population.
Under the headings of "social change" and "social forces", the effects of
urbanisation, public opinion, education and migration were dealt with.
Seventy-four Governments, 39 NGOs and all of the specialized agencies
attending the previous Congress were present in Stockholm. The total number of
participants reached 1,083, of whom 658 represented non-governmental bodies. The
presence of representatives from a still-increasing pool of newly independent
countries bolstered the assertion that developing nations should not restrict
themselves to mechanically copying criminal justice institutions developed in
western countries.
The Fourth Congress 1970 (Kyoto)
Set in the city of Kyoto, once the capital of ancient Japan, this was the first
Congress held outside Europe. The number of participants declined slightly but the
number of Governments represented rose to 85.
The Fourth Congress was convened under the slogan "Crime and
Development". Its conclusions centred around the need for crime control and
prevention measures, preferred to as "social defence policies"—to be built into the
development planning of nations. The groundwork for much of the discussion had
been laid by a set of working papers prepared by the Secretariat and the World
Health Organization and by reports of an ad hoc group of experts. It was emphasised
that the promotion of social and economic integration should not be seen as a
solution to criminality; it might give rise to the misleading impression that crime
control involved little more than provision of social services.
A theme touched on by the Third Congress—community based
prevention—was expanded upon at the Fourth Congress. The possible

contributions of public participation to crime prevention and control were explored.
The Congress also investigated the nation-by-nation implementation of the
Standard Minimum Rules for the treatment of prisoners, relying on results of a
questionnaire previously submitted to member States.
The use of research as a tool of social policy also came under scrutiny. A
consensus supported the practical conclusion that the primary object of research
should be the identification not of the causes of crime per se, but of factors that could
be applied to a planned action.
The broad scope of the Fourth Congress deliberations led to a re-ordering of the
UN's crime prevention programme and the creation of a Committee on Crime
Prevention and Control in 1977.
The Fifth Congress 1975 (Geneva)
The Fifth Congress on the Prevention of Crime and the Treatment of Offenders
returned to Geneva, i.e. site of the First Congress. The number of nations represented
again increased to 101, and the participation of specialized agencies was augmented
by the presence of Interpol,1 the IPPC2 and the Organization for Economic Co-
operation and Development (OECD).
The theme of the Fifth Congress was "Crime Prevention and Control; the
Challenge of the Last Quarter of the Century". Under this forward-looking rubric, the
Congress treated a larger number of specific concerns than ever before. They
included :
(i) Changes in the form and dimensions of criminality at national and
transnational levels;
(ii) Crime as a business and organised crime;
(iii) The role of criminal legislation, judicial procedures and other forms
of social control in the prevention of crime;
(iv) the addition of crime-prevention activities and related social services
to traditional law enforcement roles of police and other law enforcement
agencies;
(v) Treatment of offenders in custody or in the community, with special
reference to implementation of the standard minimum rules;
(vi) Economic and social consequences of crime and new challenges for
research and planning;
(vii) Alcohol and drug abuse; and
(viii) Victim compensation as a substitute for retributive criminal justice.
The Fifth Congress was responsible for two notable documents besides the
standard minimum rules for the Treatment of Offenders as influential international
guidelines to criminal justice practice. One was a "Declaration on the Protection of
All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment". The Declaration was adopted by General Assembly
resolution 3452 (XXX) of 9th December, 1975 and led to a
1. International Police Organisation.
2. International Penal & Penitentiary Commission.
subsequent convention on that topic. The Congress also paved the way for drafting
the "Code of Conduct for Law Enforcement Officials" which was adopted by the
General Assembly in 1979.
General conclusions reached by the Fifth Congress focused on the crucial role
of social justice in preventing crime, the importance of coordinating criminal justice
programmes within overall national social policy and the importance of respect for
human rights.
The Sixth Congress 1980 (Caracas)
The UN Crime Congress in Caracas, Venezuela, was the first to be hosted by a
developing nation and the first to take place in the Western hemisphere. The
widespread interest it evoked among long established and newly independent nations
and national liberation groups was reflected in delegations representing 102 nations,
and bodies such as the League of Arab States, the Organization for African Unity
(OAU), the Pan-Arab Organization for Social Defence, the Palestine Liberation
Organization (PLO), the South West Africa People's Organization (SWAPO), the
African National Congress (ANC) and the Pan Africanist Congress of Azania.
The theme of the Sixth Congress was, "Crime Prevention and the Quality of
Life." It was realised that the success of criminal justice systems and strategies for
crime prevention, especially in light of the growth of new and sophisticated forms of
crime and the difficulties encountered in the administration of criminal justice,
depends above all on the progress achieved throughout the world in improving social
conditions and enhancing the quality of life.
Conceptualisation of juvenile delinquency, which to some extent had been
narrowed by the Second Congress, was once again broadened. Emphasis was placed
not only on the application of criminal sanctions to youthful offenders but also on
the provision of social justice for all children so that they would not be driven to
offend. The Caracas Declaration addressed the heed for standard minimum rules for
juvenile justice and further research into the causes of juvenile delinquency.
The items relating to juvenile delinquency were among 19 resolutions
incorporated in the Caracas Declaration. Among the recommendations were
promotion of broader public participation in crime prevention; improvement of
statistics relating to crime and criminals; and eradication of the practice of extra-
legal executions which was deemed a particularly abhorrent crime and abuse of
power.
The contributing achievement of the 1980 Congress was the "Report of the
Working Group of Experts from Latin America and the Caribbean on Criminal
Policy and Development". The Working Group argued that the relationship between
development and crime favours a two-way process of criminalisation and
decriminalisation of offences. The scope of criminal law statutes should be
broadened to include wilful actions harmful to the national wealth and well-being—
offences such as destruction of the ecology and participation in networks for drug
trafficking and trafficking in persons, As a corollary, the Working Group
recommended a reduction in the number of statutes covering petty crimes and those
of little or no socially destructive effect.
The Seventh Congress, 1985 (Milan)
This Congress is best known for the Milan Plan of Action, which called for a
concerted response from the community of nations to address socio-economic factors
relevant to the commission of crimes. Taking place in the Italian city, after which the
Plan of Action is named, the Congress dedicated itself to the theme of "Crime
Prevention for Freedom, Justice, Peace and Development".
The expanding purview of United Nations criminal justice concerns presented
the delegates with an imposing agenda of 21 major substantive documents deriving
from General Assembly and ECOSOC mandates were prepared for the Congress in
addition to previously issued reports of regional and inter-regional preparatory
meeting.
The work of the Congress was organised under five topic headings—
(i) "New Dimensions of Criminality and Crime Prevention in the
Context of Development" continued and updated UN interest in the relation
between social development policies and criminal justice systems. Fraud and
crime in international commerce and financial transfers was one of the areas
under scrutiny.
(ii) "Criminal Justice Processes and Perspectives in a Changing World"
covered the need to revise, reform or reinforce the working of criminal justice
systems.
(iii) "Victims of Crime" addressed the rights of victims of crime and
abuse of power, compensation and restitution schemes and means of assisting
them through criminal justice systems.
(iv) "Youth, Crime and Justice" extended perennial UN interest in
members of the age bracket with the highest percentage of criminal offenders.
(v) "Formulation and Application of United Nations Standards and
Norms in Criminal Justice" constituted a review of the value of UN instruments
in the criminal justice field and the extent of their implementation among the
Member States.
In addition to the Milan Plan of Action, five other major international
instruments setting norms and standards were approved by consensus :
1. Guiding principles for crime prevention and criminal justice in the
context of development;
2. United Nations standard minimum rules for the administration of juvenile
justice;
3. Declaration of basic principles of justice for victims of crime and abuse
of power;
4. Basic principles on the independence of the judiciary;
5. Model agreement on the transfer, of foreign prisoners and
recommendations on the treatment of foreign prisoners.
It is significant to note that the inter-regional Preparatory Meeting of Experts of
the UN Congress on Prevention of Crime and Treatment of Offenders had met in
New Delhi on April 22-26, 1985. The meeting was convened to deliberate over the
"New Dimensions of Criminality and Crime Prevention in the context of
Development, Challenged and Future". The experts expressed concern over the
"deepening crisis of growing violence and crime, a cynical contempt for law and
order and considerable degrees of immorality". The agenda was served before the
diplomats of some of the Third World countries with a view to finding solutions to
counter these problems so as to achieve "freedom, justice, peace and development" in
world in general and the Third World countries in particular. The theme was taken up
for deliberation in the Seventh Congress (Milan) but without much success because
of the "pull of debates in diverse directions".
The Eighth Congress 1990 (Havana)
The United Nations Crime Congress returned to Latin America in 1990. The
Eighth Congress was convened in Havana (Cuba), under the theme of "International
Crime Prevention and Criminal Justice in the Twenty-First Century".
The Eighth Congress maintained the UN's traditional portfolio of concerns
while dealing with contemporary developments. Among the latter were a growing
alertness to the theft of archaeological treasures, the dumping of hazardous wastes in
ocean waters, the flourishing international trade in illicit drugs and the lethal
connection between drug abuse and AIDS and the appearance of both among prison
populations.
Offering encouragement for the future were the lessening of tensions between
the Eastern and Western blocs of nations, increased awareness of the value of
international cooperation in the law enforcement field and presentations and
exchanges of experience regarding new techniques such as computer networks and
provisions for seizing the financial proceeds of organised crime and examining bank
records.
Despite the growing body of information and experience relating to criminal
justice planning with socio-economic development, it was recognised that the
international debt crisis, steep declines in primary commodity prices and general
outflow of capital from many of the developing countries pose a threat to progress in
this area.
Reflecting these hopes and concerns, the Eighth Congress produced more
international instruments than all the preceding Congresses put together. Five model
treaties recommended and later approved by the General Assembly covered (i)
bilateral agreements on extradition, (ii) mutual assistance in criminal investigations
and other matters, (iii) transfer of proceedings in criminal prosecutions, (iv) transfer
of supervision of offenders, and (v) prevention of crimes infringing the cultural
heritage of peoples. Six major documents were adopted setting guidelines on criminal
justice system standards, ranging from non-custodial measures to the prevention of
juvenile delinquency.
Resolutions drawn up in Havana dealt with computerisation of criminal justice
operations, the problem of domestic violence, the instrumental use of children in
criminal activities, the role of criminal law in protecting nature and the environment,
computer-related crime, corruption in government and measures to prevent infection
of prisoners with HIV/AIDS.
In a resolution detailing measures against international terrorism, the Congress
urged the States to consider favourably national and international action against
terrorism. An annex to the resolution listed a number of areas of particular concern.
Among these were State policies and practices that may be considered a violation of
international treaty obligations; the absence of specific norms on State responsibility
for carrying out international obligations; abuse of diplomatic immunity; lack of
international regulation of the trade in arms; and the inadequacy of international
mechanisms for peaceful resolution of conflicts and enforcement of human rights.
The annex calls for greater uniformity in laws concerning territorial and extra-
territorial jurisdiction and bilateral and multilateral cooperation between police,
prosecutors and the judiciaries of the member States. It also recommends looking
into the possibility of an International Criminal Court or some other international
mechanism with jurisdiction over offences including those connected with terrorism
and illicit trafficking in narcotic drugs or psychotropic substances.
Another task of the Congress was to review the U.N. criminal justice
programme for crime prevention. On the recommendation of the Eighth Congress,
the General Assembly subsequently adopted a resolution convening a ministerial
meeting on the creation of an effective United Nations Crime Prevention and
Criminal Justice Programme, which in turn led to the establishment of the UN
Commission of Crime Prevention and Criminal Justice in 1992
The Ninth Congress 1995 (Cairo)
New measures for combating international crime syndicates, terrorism,

ecological crimes, violence inflicted on women, illegal traffic in aliens and
corruption of public officials were recommended by the Congress held in Cairo,
Egypt.
The UN Secretary-General, Boutros Boutros Ghali said in a message delivered
to the Congress that crime in its various dimensions and forms is a problem requiring
co-ordinated international action with close co-operation among the member states.
Emphasising that the UN regards crime as a crucial development issue, he said that
"economies in crisis, or in a delicate period of transition, need help from the
international community to combat the dangers posed by crime."
This UN Crime Congress on the African continent and the first to take place in
the Arab world was attended by 1,732 participants from 138 countries and 15 inter-
governmental and 48 non-governmental organisations, as well as 22 United Nations
agencies and programmes. Among the 1,290 governmental representatives, 33 were
ministers of Justice and 6 ministers of the Interior, along with heads of police
agencies, public prosecutors, high-ranking Judges and heads of prison systems.
Endorsement by the Congress of a wide array of measures to combat
transnational crime, reflected the growth of consensus among governments and
experts that international cooperation is needed if the rapid spread of criminal
syndicates is to be stemmed.
An early focus of the Congress was on a draft resolution calling attention to
links between terrorism and organized crime and calling for concerted international
action to combat both. Several delegations and experts pointed out that condemning
both kinds of organisations should not be taken to mean that terrorist organisations
are simply an adjunct to crime syndicates. Such an identification might lead to
injustices against organisations of popular causes incorrectly labelled as "terrorist".
The final resolution adopted by the Congress condemned terrorist acts and
recommended to the Commission to examine further the links between these acts and
organised transnational crime.
In another action, the Congress asked that the views of States be solicited on the
possible elaboration of new international instruments such as a convention against
organised transnational crime. Such a treaty might cover arrangements for
international cooperation at the investigative, prosecutorial and judicial levels and for
prevention and control of money laundering. A similar measure was adopted at the
World Ministerial Conference on Transnational Crime, held in Naples, Italy in 1994.
An omnibus resolution asked States to facilitate transnational criminal
investigations through extradition, provision of relevant records, exchange of
evidence, and cooperation in locating persons. It also called for stricter laws on
registration of imported motor vehicles as a means to combat the large-scale
trafficking in stolen cars.
In response to widespread concern about the involvement of organised crime in
smuggling and selling weapons, a resolution was adopted calling for urgent measures
to restrict international traffic in firearms and urging the States to regulate domestic
availability more closely.
A strongly worded resolution urged States to adopt laws against acts of violence
that may victimise women and sanctions against rape, domestic violence, sexual
abuse and all practices harmful to females including the traditional practice in some
societies of genital mutilation. Legal measures prohibiting harassment, intimidation
or threats against women or their families, and laws regulating the acquisition and
storage of firearms in the home were also recommended by the same resolution of the
Congress. States are asked to take special account of women's vulnerability to

violence including murder, torture, systematic rape and sexual slavery.
Plenary discussions and a wide variety of workshops presenting ground-
breaking research projects led to wide-ranging debate and discussion, on the
following issues :
(i) An unprecedented debate on corruption of public officials was
introduced by an international panel of five experts. They noted the increasing
interaction between cases of official corruption and transnational crime
organisations. It was stated that corruption affects all countries, although it is
often rooted in entrepreneurial opportunism of businesses in the industrialised
countries. Many of the recommendations made during the debate involving
Congress participants as well as the panelists were later taken by the
Commission, which at its fourth session recommended to ECOSOC the
adoption of a resolution on the subject on July 24, 1995.
(ii) A Congress workshop discussed both the benefits and the potential
problems of using criminal justice systems to protect the environment. The
ecological crimes included the illegal disposal and trafficking of hazardous
wastes, smuggling or theft of cultural treasures, and newer forms such as the
illicit release of genetically engineered organisms into natural environments.
Proposals ranged from elaborating a detailed list of environmental crimes and
establishing special police and prosecution units to an international convention
on the protection of the environment. Establishment of a world environmental
protection agency under UN auspices was also suggested.
(iii) Another innovative workshop investigated the role of the mass
media in crime prevention. Dramatic testimony by journalists from Russia,
Kenya, India, the Philippines and the United States underscored the importance
of the media's watchdog function and its potential in preventing crime.
Participants recommended that the United Nations reassert the "enormous
importance of a free press as part of the democratic process" and commit
resources for countering the negative effects of the mass-media on young
people; call upon Governments to create an education campaign to ensure that
crimes against the environment are recognised in the media as criminal and
moral offences; and encourage, through the media, the development of ways to
eradicate violence against women, enhancing respect for their dignity and
discouraging negative stereotyping.
(iv) An urban policy workshop analysed successful prevention policies,
including grass-roots participation in criminal justice systems, appropriate
design of housing complexes and public spaces, consultations among
governmental agencies and between the public and the private sectors, and the
strengthening of social safety nets. While highlighting workable solutions to
crime, participants cautioned against ignoring the growing feeling of urban
insecurity.
In addition to workshops, a variety of ancillary meetings were organised by
NGOs. One of them, conducted by the International Scientific and Professional
Advisory Council of the UN Crime Prevention and Criminal Justice Programme,
produced a comprehensive investigation of the relation between crime and migration.
Speakers detailed the involvement of transnational crime syndicates in trafficking in
illegal aliens and identified factors that tend to make legal and illegal migrants both
victims and perpetrators of crime.
The Tenth Congress 2000 (Vienna)

The Tenth UN Congress on Prevention of Crime and Treatment of Offenders
was held at Vienna on 10-17 April, 2000. More than 150 countries participated in the
Congress. Besides, members of UNESCO and other specialised agencies e.g. African
Legal Consultative Committee, European Police Office, Organisation for Security
and Co-operation In Europe etc. participated in the Congress. The main Agenda
items were :—
1. State of crime and criminal justice;
2. International co-operation in combating transnational crimes which were
new challenges in 21st century;
3. Promoting Rule of Law and strengthening criminal justice system;
4. Effective crime prevention—keeping pace with new developments;
5. Offenders and Victims—Accountability and fairness in justice process;
6. Combating corruption;
7. Crimes related to computer network;
8. Community involvement in crime preventions;
9. Women in criminal justice system.
A workshop on women in the criminal justice system was also organised
which consisted of four modules :—
(i) Women as offenders and prisoners;
(ii) Women as victims and survivors;
(iii) Women in criminal justice system;
(iv) Research and Policy Issues relating to women in criminal justice system.
There was consensus among the participants in the following areas :—
(a) Women and girls who are victimised should be afforded the
fundamental right of protection, justice, support, in breaking the cycle of
victimisation and reintegration into the community.
(b) Efforts should be made to raise the awareness of the public and officials
concerning the dehumanising and exploitative nature of women's
victimisation.
(c) The international community should reject the attempts to justify the
victimisation of women on cultural grounds.
(d) In offences involving women, the criminal justice system of the member-
States should focus on the abuser and exploiter as well as on the abused
victim, including by recognising the role of facilitators in trafficking in
women and girls.
(e) Civil remedies should be made available to victimised women and
girls in order to permit them to pursue claims against those who
committed the crimes against them.
(f) There should be collective response in addressing women's
victimization.
(g) Concerted efforts should be made at global level to correct the economic
conditions that facilitate the economic and sexual exploitation of women
and girls.
(h) Harmonised and co-ordinated strategies should be pursued including joint
action programmes and research efforts, strengthened communications
and collaborative networks involving governmental agencies and non-
governmental organisations.
The participants emphasised the need and importance of dealing with root
causes of crime and measures to prevent them. They felt that rapid social changes
could lead to a sense of lawlessness and in turn to the commission of crime. The
problems were identified as being particularly acute in the developing countries and
countries with economies in transition where growth in crime was said to be
becoming part of everyday life. Several members noted that the crime could increase
poverty and stunt the rate of development. Corruption and terrorism were identified
as crimes that could undermine the stability of the entire society. The crimes such as
drug trafficking, terrorism and illegal trafficking of human beings were identified as
offences of particular concern in many States.
The Vienna declaration on crimes and justice constituted a significant step
forward in international co-operation in the prevention and control of crime and in
the development of criminal justice system. India was represented by Shri R.K.
Raghvan, Director of Central Bureau of Investigation in this Congress.
The Eleventh Congress, 2005 (Bangkok, Thailand)
The Eleventh U.N. Congress on Crime Prevention and Criminal Justice was
held in Bangkok (Thailand) from 18th to 25th April, 2005 to decide to initiate more
effective concerted action in a spirit of co-operation, to combat crime and seek
justice. The regional preparatory meetings for the Eleventh Congress were held in the
first quarter of 2004 in different parts of the world, followed by a two-days seminar
to provide participants with the opportunity to discuss the implementation of the
United Nations Convention against Transnational Organised Crimes and for ratification
of the U.N. Convention against corruption. The main agenda items for deliberation in
this Congress were :—
1. Reviewing the work of the ten previous U.N. Congresses;
2. Effective measures to combat expanding dimensions of transnational
organised crime including illicit drug trafficking, money-laundering,
trafficking in persons, smuggling of migrants, illegal arms trafficking
and terrorism etc.
3. To effectively tackle corruption and the threats posed by this menace
in the 21st century. There was need to promote a culture of integrity and
accountability in both, public and the private sector to control
corruption;
4. To initiate appropriate measures to control economic a id financial
crimes which are a challenge to sustainable development. The increased
involvement of organised criminal groups in theft of cultural property
and illicit trafficking in protected species of wild flora and fauna needed
effective measures to strengthen international co-operation. The
Congress noted that current trend of globalisation, information
technology and rapid development of new tele-communication and
computer network systems have been accompanied by the abuse of
those technologies for criminal purposes. Therefore, there was urgent
need to enhance and supplement existing international co-operation to
prevent high technology and computer related cyber crime;
5. International concern for the growing problem of trafficking in illicit
drugs and the serious socio-economic consequences it entails;
6. To implement the universal instruments against terrorism. There was
urgent need to arrive at a possible universally acceptable definition of
terrorism. The problems of international terrorism and nuclear terrorism
were also the key issues to be resolved by the Congress;
7. Need to curb document and identify frauds, in particular, the need to

prevent the use of fraudulent travel documents through
improved security measures;
8. Reviewing the adequacy of standards and norms in relation to prison
management and prisoners;
9. To promote interests of victims and the rehabilitation of offenders with a
view to developing restorative justice policies, procedures and
programmes including alternatives to prosecution thereby avoiding
possible adverse effects of imprisonment;
10. To revamp juvenile justice system in accordance with the standards and
norms set out by the United Nations.
The Twelfth UN Congress on Crime Prevention and Criminal Justice (Salvador,
Brazil) 2010
The Twelfth UN congers on Crime Prevention and Criminal Justice was held
in Salvador, Brazil from 12th to 19th April 2010. The Congress recognised that
integrated criminal justice reforms require not only policing but also judicial and
correctional assistance, and greater focus on security interlinked justice system. It
was reiterated that the UN Congresses are devoted to a specific subject area
identified in the report of meting of the Inter-governmental Group of experts held in
Bankok from 15th to 18th August 2006.
The agenda before the congress for deliberation was largely based on the four
Regional Preparatory meetings held in 2009 in different parts of the world, as follows
:— ^
(1) Caribbean Regional Preparatory Meeting held in Costa Rica from 25th to
27th May 2009.
(2) Western Regional Preparatory meeting held in Doha (Qatar) from 01-03-
June 2009.
(3) Asian Regional Preparatory Meeting held in Bankok (Thailand) from 01-
03 July, 2009.
(4) African Regional Preparatory Meeting held in Nairobi (Kenya) from 8th
to 10th September 2009.
The congress resolution affirmed that these meets were the most diverse
gatherings of policy-makers and practitioners in the area of crime prevention and
ensuring rule of law in the criminal justice administration system.
The General Assembly of UN vide its Resolution 63/193 of 18th Dec. 2008
had decided that the main theme of congress will be to work out a comprehensive
strategy for global challenges relating to crime prevention and developing trends in a
changing world.
The congress stipulated discussions and proposals for action on a wide range
of topics concerning crime prevention and criminal justice system, which are briefly
1. to establish criminal justice system as a central pillar in the rule of law
architecture.
2. to highlight the role of criminal justice system to develop in order to meet
the challenges of new crimes including cyber crimes.
3. to emphasise the need for a holistic approach to criminal justice system
reforms and to strengthen the capacity of crime prevention
mechanism to deal with sophisticated crime.
The participants in the congress included representatives of inter-governmental
and non-governmental organisations, specialized agencies and other UN entities,

accredited .members of the media giving television and radio coverage, practising
fraternity etc.
The topics which were deliberated in the congress included :
1. children, youth and crimes;
2. Technical assistance to facilitate prevention of terrorism and violent
crimes;
3. Preparing UN guidelines on crime prevention strategies;
4. Transnational organised crimes and smuggling of migrants and
trafficking of persons;
5. International co-operation to address money-laundering and related
crimes;
6. Massive use of science and technology by the perpetrators of crime and
by preventing authorities in fighting cyber crimes;
7. Violence against migrants, migrant workers and their families.
The workshops held within the congress mainly dealt with the following
topics :—
1. The international crime justice education for rule of law.
2. Treatment of prisoners in criminal justice system.
3. Practical approaches to prevention of urban crimes.
4. Links between drug trafficking and other-forms of organised crimes.
5. Overcrowding of correctional facilities and preventive strategies to
combat the problem.
The deliberations and discussions of the aforesaid International Congresses
held every five years in different parts of the world reflect the global concern for the
prevention of crime and need for updating the criminal justice system to meet the
new challenges thrown before the agencies concerned with crimes detection,
prevention and investigation. The desirability of an International Criminal Court and
need for greater cooperation between the member countries of U.N. in dealing with
crime and criminals has been accepted by almost all the participating members,
delegates and institutions and efforts are being made to move ahead in this direction
to achieve the desired objectives.
Concluding Observations
Despite legal, social, psychological and penal measures for combating crime,
the problem still persists in alarming dimensions. With the change of time, new
crimes are coming up and the traditional crimes are vanishing fast. The advancement
in knowledge of human behaviour and growth of commerce and industries have
brought in their wake new complexities in life. These complexities account for the
rising incidence of criminality. It is therefore, apparent that crime, though an evil, is
an inevitable phenomenon of a progressive society. There is no reason to be upset
with the present increase in crime-rate. Nor should it create a misleading impression
that the penal programmes have totally failed or proved ineffective. It must be stated
that
criminality in India is far less than in many other countries of the world. The
reason being that Indian society still retains the virtues of tolerance, mutual respect
and co-existence through its social institutions such as religion, family, parental
control, etc.
Before concluding, a word must be said about the general tendency among
people to keep away from agencies administering criminal law' and justice. The root
cause of this apathy is to be found in common man's distrust for law, justice,
prosecutors and the members of the bar. Instances are not wanting when people
watch a crime being committed in their presence but they never report it to the police
because of the fear of the culprit or possible harassment from the police or tiresome
trial and court procedure. A commoner always prefers to avoid police or law courts
even at the cost of suffering a slight harm or injury. He refrains from instituting
criminal proceedings against the offender to avoid the botheration of contacting
police or visiting law-courts. This apathy of people towards law enforcement
agencies provides fertile ground for offenders to carry on their criminal activities
undeterred which hinders the cause of crime prevention.
It must be accepted that there is a great divergence in practice and precepts so
far working of police and law courts is concerned. The problem of the day therefore,
is to restore confidence among the public for these agencies of justice through an
extensive propaganda and convince people that these institutions are meant to help
and not to harass them. Prevention of crime should be treated as everyone's
concern.1156 Unless this broader outlook is developed among the members of society,
elimination of crime seems rather difficult. In general, the state of lawlessness
indicates lapses on the part of the State agencies and the abuse of State power by
corrupt coteries and their immoral behaviours by way of deviating from professional
standard and accepted norms both within the organisation and the society.1157 This
obviously causes the public to harbour a feeling of distrust and contempt for the law
enforcement agencies and authorities on whom the responsibility of crime prevention
devolves. It is therefore, necessary that the traditional outlook that crime prevention
is solely the concern of law enforcement agencies, must be changed and it should be
treated as a social cause necessitating involvement of every citizen. It is only then
that the measures to prevent crimes and criminals can succeed and public tranquillity
maintained in the community. Perhaps, the media can play a very crucial role in
restoring people's faith in the agencies which are associated with the criminal justice
administration.
Yet another potential cause which adversely affects the crusade against crime
prevention is lack of adequate proportionality between crime and punishment. It has
been rightly pointed out by Friedman that "the criminal law continues to have a
decisive reflection on social consciousness of society." Therefore, protection of
society and stamping out criminals must be the object of law which should be
achieved by imposing appropriate sentence. In other words, in operating the
sentencing system, the proportion between crime and punishment should be the
guiding principle and serious crimes must be punished with severity. The Supreme
Court has expressed deep concern for the disappearance of the principle of
proportionality from criminal law in recent times and warned some very undesirable
1156 David Dressier : Reading in Criminology and Penology (Second Reprint), p. 650.
1157 Pande D.C. : "An Approach to Crime Prevention & Crime Control"—Criminology
and Criminal Law (2003) p. 509.
consequences of such disproportionate punishment.1158 Imposition of sentence

without considering its impact on the social order may be in reality a futile exercise.
The social impact of crime where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason and other offences involving
moral turpitude which have a great impact on social order and public interest per se
require exemplary treatment and any liberal attitude or leniency in respect of such
offences is bound to be counter-productive in the long run and the common man is
likely to lose faith in courts and criminal justice system.1159
1158 Adu Ram v. Mukhna & others, Cri. Appeal Nos. 646 and 647 of 1999 dedded on 8-10-
2004.
1159 Mahesh v. State of M.P., (1987) 2 SCR 710.
CHAPTER XVII
Victimology
C rime affects a large number of victims who suffer physical, social, financial or
emotional injury or harm which needs to be promptly redressed by providing them
easy access to justice. Though, the victims of crime have generally found support and
assistance from their family, tribe or community, they have, by and large, remained
"forgotten person" in the criminal justice administration system. It is only in recent
decades that the impact of the victimization on crime affected persons drew attention of
criminal law jurisdictions around the world and they were convinced that the victims
needed to be treated with compassion and their dignity and fundamental rights must be
protected and preserved.
Victimology—Definition & Meaning1160
Broadly speaking victimology may be defined as the scientific study of
victimisation, including the relationships between victims and offenders, the
interactions between victims and the criminal justice system; that is, the police and
courts, and correctional officials. It also includes connections between victims and
other social groups and institutions, such as the media, businesses and social
movements. However, the term victimology is not restricted to the study of crime-
victims alone but it may extend to other forms of human rights violations that are not
necessarily crimes.
The term 'victim' in general parlance refers to all those who experience injury, loss
or hardship due to any cause and one of such causes may be crime. Therefore,
victimology may be defined as a study of people who experience injury or hardship due
to any cause. Such injury or harm may be physical, psychological, emotional or
financial. It therefore, follows that 'victim of crime' is the person who has suffered at
the hands of perpetrator of crime.
Victimology has now emerged as a branch of criminology dealing exclusively
with the victims of crime who need to be treated with compassion and rendered
compensation and assistance under the criminal justice system. While criminology is
concerned mainly with the causation of crime, victimology is primarily concerned with
the study as to why people fall a victim to crime and how they can be helped and
assisted against abuse of power or criminal acts of offenders through access to criminal
justice system. The study also outlines the steps to be taken to prevent victimisation
against crimes and provide legal remedies to the victims of crime.
Historical Perspective
The origin of victimology as a part of criminology may be traced back to 1940's
when founders of this branch of knowledge, notably, Mendelsohn, Von Hentig and
Wolfgang initially tended to use the term to mean "hapless dupes who instigated their
own victimization" which they termed as 'victim precipitation'.
However, the notion of "victim precipitation" invoked criticism by feminists by
1980's and the term 'victim' was interpreted in a more wider sense to include "anyone
caught up in an asymmetric relationship or situation." The word 'asymmetry' connotes
anything imbalanced, exploitative, parasitical, oppressive, disturbing, alienating or
1160 Andrew Karman : Crime Victims : An Introduction to Victimology (2003) p. 7.

having inherent suffering. Thus, in the modem sense, the concept of victimology
includes any person who experiences injury, loss or hardship due to any cause. The
term may be used in many forms such as accident victims, flood victims, famine
victims, tsunami victims, blast victims, cancer victims and so on. The common element
in all of them is some kind of suffering, injury or harm caused by forces beyond
victim's control.
Theories of Victimology
With the advance of victimological studies, the theory of 'victim precipitation'1161
came to be perceived as a negative approach to victim because it only focused on how
victim's own contribution led to his victimization. Therefore, most of the criminologists
refuse to accept this theory, it being destructive in nature.
Marvin Wolfgang, who opposed the theory of 'victim precipitation', believed in
the phenomenon, of 'victim facilitation' rather than 'victim blaming'. He did not blame
the victim but asserted that the interactions of the victim make him/her vulnerable to a
crime. Thus, the idea behind victim facilitation is to study the elements that make
victim more accessible or vulnerable to a crime attack.
Benjamin Meldelsohn propounded a three model theory of victimology and
observed that the .conditions that precipitate crime can be classified into three general
categories as follows :—
(1) In terms of time and space, the victim being in the wrong place at a wrong
time.
(2) Attracting factors and life-style also create a fertile ground for incidence of
crime.
(3) There are certain pre-disposing factors such as being too young, being too
poor, being in minority, being unemployed etc. which may lead to the
victimization of a person to crime.
Later, Cohen and Felson (1979) came out with their 'Routine Activities Theory',
which pre-supposes that a crime occurs when three conditions come together, namely
(i) suitable target (ii) motivated offender (s) and (iii) absence of security or parental
care or guardianship.
Earlier, when criminology was in its emerging stage, victimology simply meant
study of crime from the perspective of the victim. Mendelsohn and Von Hentig were
the first to explore the possibility of developing victimology as an independent branch
of criminology and therefore, they are considered as the
'father of victimology.'
To begin with, Von Hentig concentrated on the study of behaviours and
vulnerabilities of victims of crime, such as resistance of rape victims or victims of
murder. He concluded that crime victims were mostly "depressive type' who fell an
easy target to crime due to their own carelessness.
Schater (1968) concluded that there were victims who substantially contributed to
their victimization knowingly or unknowingly, due to lack of care and vigil. Many
victims face unsympathetic treatment by the police; prosecutors and court officials,
which further aggravates their woes. Even if the offender is apprehended and brought to
trial, the victims of their crime remain marginalised and do not have opportunity to
ventilate that views and concerns during the criminal justice process. Most of the courts
do not allow the victim to present his/her civil claim along with the criminal trial. Even
1161 It means blaming the victim himself/herself for his/her victimization and suffering e.g.
unwanton posture or indecent exposure by women in public place.
Victimology 665
if the offender is convicted and punished, his punishment provides no relief to the
victim except mental satisfaction.
It has been often said that criminals and victims often have some socio-
demographic characteristics such as being nearly of the same group, both living in
physical proximity1162 etc.
It has now been universally accepted that victim of crime is an identifiable person
who has been harmed individually and directly by the perpetrator of crime. However,
there are certain crimes, such as white collar crimes, wherein victims are not clearly
identifiable or not directly linked to the crime but these crimes do affect the society as a
whole. Thus, in such cases, society in general, becomes a victim to the unlawful
activities of white collar criminals. Other crimes in which society itself is the victim are
homicides, felonies, national frauds, etc.1163
The modem trend is to study victimology as a multi-disciplinary subject. It is not
only focused on victims of crime but also encompasses within it, the study of victims of
traffic hazards, natural disasters, war crimes, abuse of power, corruption etc. The
professionals involved in victimological studies may, therefore, be legal practitioners,
judges, policy makers, law teachers etc.
'Penal Couple' concept
Some victimologists have projected a view that when a crime takes place, it has
two partners, one, the offender and second, the victim, who provides an opportunity to
the criminal to commit the crime. The victim is thus a participant in the penal couple
and therefore, he should bear some responsibility for crime. But this view has also not
been accepted by most victimologists because it is more or less similar to theory of
Victims precipitation' which stands completely discarded in the modern victimological
studies.
Victims of Crime
The expression 'victims of crime' refers to any person, group or entity who has
suffered injury, harm or loss due to illegal activity of someone. The harm or injury,as
said earlier, may be physical, psychological or financial. Such a person may be called a
'primary victim' of crime. Besides, there may also be 'secondary victim's who suffer
injury or harm as a result of injury or harm to the primary victim. For instance, the
children of a raped woman or a battered woman suffering from lack of paternity and
called 'bastards'.
There may also be tertiary victims who experience harm or injury due to the
criminal act of the offender. The term 'tertiary victim' means another person besides the
immediate victim, who is victimised as a result of the first person's action. For instance
in case of a communal riot the muslims who are killed, injured or whose property is
ransacked are the primary victims of the crime whereas the dependents and relatives of
the deceased or injured persons are the secondary victims of that crime. Besides these
victims, the hatred culminated for muslim community by perpetrators of communal
tension and riot generates hate phobia and fear of violence among the muslim members
of the society. Thus, they are the tertiary victims of the communal riots. Let it be
illustrated by yet another example. In case of rape, the woman raped is the primary
victim while her husband, children or illegitimate child, if born out of such rape, are
1162 This has been called as 'proximity hypothesis'.

1163 2-G Spectrum Scam (2011) has adversely affected the national economy having its
impact on the country as a whole.
secondary victims. But the general share and disgrace, which the entire family of the
raped victim has to suffer makes the members of the family 'tertiary victims'.
Particularly, the people would shim and avoid contacts with the family of the victimised
woman and would refrain from entering into any kind of matrimonial relationship with
such a family. The media, through newspaper reporting, television, radio etc. are to
some extent responsible for tertiary victimization in such offences.
The expression 'primary', secondary and 'tertiary' victimisation suggests that there
is some sort of hierarchy in the level of suffering experienced as a result of a crime. But
it cannot be assumed that secondary and tertiary victims necessarily suffer less trauma
than the primary victims. They may also face the physical, psychological and emotional
pain similar to that of the primary victim. Therefore, it would not be correct to define
primary, secondary a* 1164 tertiary victims in terms of more suffering, less suffering or
least suffering. For example, where a person meets with an auto-accident when a truck
negligently being driven by the driver hits an autorikshaw and the person (occupant)
was instantly killed, the deceased is the prime victim who has died. His wife is the
secondary victim, because now she is left with entire responsibility of supporting her
children and family and if she is not a working woman or sufficiently educated woman,
her suffering would aggravate much more. The three kids of the deceased person would
be tertiary victims in this case because they suffered the impact of the untimely loss of
their father's support and now are burdened with the responsibility of helping their
mother financially or otherwise. Though they are the tertiary victims, suffering is
perhaps far more than their mother who is secondary victim of crime and the primary
victim i.e. the deceased, having died there is hardly any question of his suffering in strict
sense of the term though it was unfortunate and fatal to his family.
The study of victims of crime and specially the reasons why some people are
more vulnerable to victimization than others, constitutes the core subject of study for
victimologists around the world.1 The entire philosophy behind
victimology therefore, centres round the 'victim' who is the 'lynch-pin' of
victimological studies.
The legal definition of the term 'victim' typically includes :—
"A person who suffered directly or threatened physical, emotional
or pecuniary harm as a result of commission of a crime, or in the
case of a victim being an institutional entity, any of the similar harm
by an individual or authorised representative of another entity or
group who are essentially covered under civil or constitutional law
and deserves assistance by the criminal justice system”1165
The UN General Assembly Declaration of Basic Principles of Justice for
Victims and Abuse of Power', which was adopted in November, 1985 contains an
exhaustive definition of the term 'victim of crime' in Articles 1 and 2 which reads as
follows :
"Article 1.—'Victims' means those who individually or collectively,
have suffered harm including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation
of criminal laws operative within member states including those
prescribing criminal abuse of power.
Article 2.—A person may be considered a victim under this
1164 Rachel Mattison : Criminal Victimization the World Society of Victimology (No. 30 of 2009).
1165 Sec. 2(wa) as inserted by Cr.P.C. (Amendment) Act, 2008 w.e.f. Dec. 31, 2009.-
Victimology 667
Declaration, regardless of whether the perpetrator is identified

apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim.
The term 'victim' also includes, where appropriate, the immediate
family or the dependents of the victim and persons who have
suffered harm in intervening to assist victims in distress or to
prevent victimisation."
Providing Redress to Victims
Providing redress and resolving the problems of crime victims, being the main
concern of victimology, it seeks to remove the social confusion by probing into the
various areas relating to victims of crime which have hitherto remained more or less
neglected. It is necessary to focus on societal reaction to' law-breaking. However,
victimological studies have to be associated with criminological approaches to crime
and criminals because the former is essentially a specialised branch of the latter. The
other three sub-fields of criminology being (1) Sociology of law and penology; (2)
delinquency; (3) comparative and historical criminology.
The board contents of victimology as a branch of criminology, may be stated as
follows
1. Victimization;
2. Victim—offender relationship;
3. Victim—criminal justice perspective;
4. Victim and media;
Victimology 667
victimology therefore, centres round the 'victim' who is the 'lynch-pin' of

victimological studies.
The legal definition of the term 'victim' typically includes :—
"A person who suffered directly or threatened physical, emotional
or pecuniary harm as a result of commission of a crime, or in the
case of a victim being an institutional entity, any of the similar harm
by an individual or authorised representative of another entity or
group who are essentially covered under civil or constitutional law
and deserves assistance by the criminal justice system"1166
The UN General Assembly Declaration of Basic Principles of Justice for
Victims and Abuse of Power', which was adopted in November, 1985 contains an
exhaustive definition of the term 'victim of crime' in Articles 1 and 2 which reads as
follows :
"Article 1.—'Victims' means those who individually or collectively,
have suffered harm including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation
of criminal laws operative within member states including those
prescribing criminal abuse of power.
Article 2.—A person may be considered a victim under this
Declaration, regardless of whether the perpetrator is identified
apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim.
The term 'victim' also includes, where appropriate, the immediate
family or the dependents of the victim and persons who have
suffered harm in intervening to assist victims in distress or to
prevent victimisation."
Providing Redress to Victims
Providing redress and resolving the problems of crime victims, being the main
concern of victimology, it seeks to remove the social confusion by probing into the
various areas relating to victims of crime which have hitherto remained more or less
neglected. It is necessary to focus on societal reaction to' law-breaking. However,
victimological studies have to be associated with criminological approaches to crime
and criminals because the former is essentially a specialised branch of the latter. The
other three sub-fields of criminology being (1) Sociology of law and penology; (2)
delinquency; (3) comparative and historical criminology.
The board contents of victimology as a branch of criminology, may be stated as
follows
1. Victimization;
2. Victim—offender relationship;
3. Victim—criminal justice perspective;
4. Victim and media;
5. Victims vis-a-vis societal relations;
6. Victims and costs of crime;
7. Compensatory redress for victims.
Hans Von Hentig (1948) carried out the work of Mendelsohn (1937) further and
1166 Sec. 2(wa) as inserted by Cr.P.C. (Amendment) Act, 2008 w.e.f. Dec. 31, 2009.-
placed victims in five main categories as follows :—

1. The innocent who fell a victim to crime being in the wrong place at the
wrong time.
2. The depressive type who are easy target, being careless and unsuspecting.
They mostly contribute to their own injury.1167
3. The greedy type who are easily duped because of craze for money and easy
gain.
4. The 'wanton type' who are particularly vulnerable to stresses of life such as
juveniles, preganant women, prostitutes etc.
5. The tormentor type who are the victims of attack from the target of their
abuse such as battered women, or those in living- in-relationship.
Ferraro (1995) has pointed out that emotional distress as a result of crime is a
recurring theme for all victims of crime. The most common problems affecting most of
the victims were psychological, including fear, anxiety, nervousness, self- blame,
shame, anger etc. These problems often lead to development of chromic post-traumatic
stress disorder (PTSD) among the victims.
The effect of victimisation not only results in generating fear in the victim but this
fear is spread in the community as well.
The factors and circumstances affecting victimization constantly keep on
acquiring different meanings with changes in the structure of society and growing
realisation of the complexity of problems involved in crime causation over the years. As
said earlier, the idea about the role of victim of crime as a contributory factor in
causation of crime is otherwise known as 'victim precipitation' or 'victim blaming'.
However, it is now perceived as a negative approach. Therefore, looking into the ways
in which victims contribute to their own victimization which formed a part of search in
mid-nineteenth century victimology has now become redundant and obsolete.
The noted Canadian Criminologist Abdel Fattah has classified victims of crime into
five major categories as follows :—
(1) Non-participating victims are those who are completely innocent. For
example, foeticide, a crime against being born, which is punishable under
Sections 315/316 of the Indian Penal Code. Miscarriage, kidnapping, etc.
are some other crimes the victims of which fall under this category.
Infanticide, that is, crime against unborn child, geronticide, i.e., killing of
one's father or mother to get rid of them because of their advanced age etc.
are offences the victims of which are non-participating.
(2) Latent victims are those who have fallen a prey to a crime but do not
1167 This is called 'victim precipitation', or 'victim blaming', because they fall a prey to
crime because of their fault or contribution.
Victimology 669
know that they are in any way effected thereby, e.g., blackmailing affects several
victims but they do not feel its impact or evil effect.
(3) Provocative victims, e.g., victims of dowry death who are provoked by the offender
to commit suicide.
(4) Participating victims. The crimes like sati, deodasi, prostitution, cyber-crimes on
internet are some of the examples of participating victims.
(5) The defiant or retaliating victims. Certain crimes by their very nature are such that
the victim does not readily yield to the offence and retaliates to the extent
possible to see that the offence is not committed by the perpetrator, but
eventually fails in his effort to avoid the occurrence of crime. The common
illustrations are victims of rape, robbery, dacoity, cruelty against women,
domestic violence etc.1168
Yet another classification of victims may "be as shown below :—
Victims
1168 Rajan V.N. : Victimology (1981), p. 10.

Victim’s of Crime _____ !
Victim of Crime relating to

injury caused to person or Victims of Environmental
property, e.g., Offences, e.g.,
1. Murder 1. Gas leakage
2. Dowry death 2. River pollution, etc.
3. Grievous hurt
4. Dacoity
5. Robbery
6. Assault etc.
Victims of abuse1169, e.g.,
1. Third degree methods
2. Custodial torture or death
3. Hospital victims
4. Custodial rape (C.R.P.F.,
B.S.F., Traffic Police)
5. Groundless arrest.
1169 The relevant cases are :

SAHEU v. Commissioner of Police
Delhi, AIR 1990 SC 513;
Sabesttin Hongory v. State of Bihar;
Bhim Singh v. State of J. & K.; Neelabati
Bohra v.
State of Orissa; D.K. Basu v. State of
W.B.; Sheela Barse v. Union of India,
etc.
Benjamin & Masters, through their criminological studies have attributed three
factors which generate crime viz. (U precipitating factors such as being in the wrong
place at the wrong time; (2) Attracting factors such as choices, options, life style etc.;
and (3) Pre-disposing factors which include all the demographic characteristics of the
victims, being female, young, poor, minority, living in squalor, living single, being
unemployed and so on.
Victimology 671
Victimology of modem time has been greatly affected by the societal influences
which recognises the people's concern about crime and rights of victims. In U.S.A., a
any one or more of the following forms :—
number of legislations have been enacted for the protection of victim's rights and
providing them compensatory justice. In India, the recent judicial trend is to provide
relief to the victims by awarding pecuniary damages and ensure their rehabilitation.
The state's concern for the welfare of crime victims is reflected in number of
legislative enactments, both at the Centre and State level.
However, the reluctance of victims to report cases to the police remains an

issue to be probed in by victimologists. Some of the reasons for non-reporting of
crimes are :—
(1) people's apathy and attitude of indifference;
(2) the effect of crime being insignificant or petty;
(3) identity of the offender being unknown;
(4) apprehension of threat or harassment from the culprit;
(5) social and public indignation, particularly in cases of rape, illegal
abortion and other sexual offences;
(6) considerable loss of time, money in prologed criminal litigation;
(7) reluctance of witnesses to testify or possibility of their turning hostile;
(8) lack of faith and confidence in police action.1170
Needless to say, that apathy of victims to report against the offender
encourages criminality. Therefore, victimologists should concentrate the problems
which hinder victim's approach to the agencies of criminal justice system for
redressal of their woes and sufferings. Since the ultimate end of penal justice is to
protect and add to the welfare of the people and society as a whole, victims' rights
should not only be recognised by the State but they should be well protected by the
law and victims' services should be further extended. The emergence of
compensatory1171 jurisprudence is indeed a welcome step from the point of view of
human rights philosophy.
Impact of Victimization
The impact of crime on victim may be physical, financial or psychological.
Physical impact.—The victim is likely to experience a number of physical
reactions to crime to which he has fallen a victim. These m:jy include hyper-tension,
increased heart-beats, numbness, grief, sadness etc. At the time of crime being
committed against a person, he/she has to choose between "fight or flight", that is
either to fight against the perpetrator of crime and offer resistance or the subdue and
meekly fall a prey to his criminal act. Many a times, the physical reaction may not
occur until the threat or danger has passed away and the victim may suffer from a
mental trauma at a later stage when his memory returns and he may suffer the
distress or shock even throughout his/her life.
Another significant physical impact of crime on the victim is physical injury
which may be apparant and immediate or may be realised by the victim at a later
stage. The injuries caused by knives or firearms are usually fatal and more damaging.
There may be some physical injuries which have a permanent effect whereas some
may be of a temporary nature i.e. healable in course of time.
Financial impact.—The financial impact of crime on the victim may be in
1. costs and expenses incurred in medical treatment for physical injuries;
2. damage to property or articles in possession;
3. Litigation cost incurred in fighting against the crime and criminal
i. e. perpetrator.
4. Employment loss or financial suffering due to loss of earnings.
5. Funeral or burial expenses, if any.
1170 Gaur K.D. :

'Poor Victims of Uses & Abuses of Criminal Law & Process in India', published in 35 JILI (1993). '
Xx
1171 See, Veern Sethi v. State of Bihar, AIR 1983 SC 339; Rudal Shah v. State of Bihar, AIR 1983
SC 1986; D.K. Basu v. State of West Bengal, AIR 1997 SC 610; SAHELI v. Commissioner of Police, Delhi,
(1990) 1 SCC 422.
Victimology 673
any one or more of the following forms :—

In some cases, the victim may be compelled to move or shift elsewhere for
security or other reasons. In that case, he has to bear additional costs of shifting and
expendure for resetting elsewhere.
Besides the physical and financial impact of victimization, the marital and other
relationships of crime victim are also likely to be adversely affected which may
result in fatal consequences and even destroy his settled family life. This generally
happens in case of women who are victims of rape or any other sexual offence.
The offences such as murder, rape, torture, assault, robbery etc. have a lasting
effect of insecurity, fear, helplessness, anger etc. not only in the victim but the
community as a whole which might also feel victimised and insecure.
Researches on victimology have shown that the effect of victimization is
particularly too hard on poor, disabled and socially neglected people. In many cases,
it so happens that once a victim has fallen a prey to a crime, he/she is susceptible to
subsequent victimisation by the same crime or other form of crime. This is often true
in case of victims of rape. These "repeat-victims" find it difficult to get out of the
clutches of the perpetrator of crime for a variety of reasons.
Psychological impact
Where the victim is confronted with the crime perpetrator immediate reaction
will be anger or fear depending on his physical strength and capacity to face the
misfortune. Shock and mental trauma follow subsequently after the crime has been
committed and the victim regains senses and is able to recapulate as to how he has
been victimised. He gets so much distressed that he loses self confidence and self
esteem and life seems to have no meaning for him.
The psychological impact of victimization is clearly reflected in the behavioural
responses of the crime victim, which may include increased alcoholism, excessive
use of drugs, segregation of social relationships, avoidance of people's contact or
social withdrawal and so on. There may, however, be some victims who are able to
shed aside their distress and shock and return to normal life in course of time.
The capacity of victims to cope with the effect of crime varies depending on
his/her mental frame. While some victims may develop a serious post-traumatic
stress disorder (PTSD), others may not be so affected. The PTSD assumes a more
serfous form when victim finds that he/she is not believed or people do not want to
share her horrible experiences and attribute his/her victimization to his/her own fault
or carelessness. This is more true in case of
674 Criminology and Panoloy
a rape victim when people blame her for having 'walked alone' or "dressed
attractively".1172
Secondary Victimization From Criminal Justice & Society
Having suffered primary victimization in the form of physical, financial or
emotional impact of crime, the crime victim, more often than not is also subjected to
secondary victimization from tiresome court proceedings and also the society as a
whole. The victim suffers from secondary victimization if his/her human or legal
rights are refused by the court due to manipulated evidence put forth by the criminal
and the court gives its decision against the victim on the basis of that evidence.
This institutionalised victimisation is more painful for the victim. Even at the
investigation and trial stage of the case, the victim may have to suffer secondary
victimization at the hands of police and investigation personnel. It is mainly due to
procedural processes and procedure of the criminal justice system which shows little
concern for the mental torture and suffering of the victim and concentrates more on
the prosecution of the offender.
Other agencies which may cause secondary victimization may be hospital
procedures, especially in case of victims of rape and sexual offences and the relatives
and friends of the deceased in murder cases. The victim is generally refused
immediate medical care and treatment until the matter is taken up by the police and
they approach the hospital authorities. Obviously the victim's treatment is delayed for
this reason.
The society's attitude towards the crime victims also accounts for his secondary
victimization. Instead of sympathising and helping the victim, his relatives, friends,
neighbours etc. may squarely put the entire blame on the victim himself. They
attribute victim's own behaviour to the occurance of crime, of which he is the victim.
In cases where the victimization is the result of abuse of power, the victim's
sufferings are further aggravated because in such cases, the crime is committed by
those who are supposed to be the protector of the victim. The instances are custodial
tortures, victims of police atrocities, misuse of power by hospital authorities against
patients, custodians of jails, orphanages, rescue homes, reformatories etc. The shock
and sense of loneliness suffered by the victims of such misuse of power shalters
his/her personality and makes him not to trust anyone in this world. Another serious
consequence that follows in case of a victim where the offender happens to be a state
authority is that it is difficult for the victim to prove the guilt of the accused
(offender).
The victims of collective violence in case of communal riots, bomb blast
terrorism, religious or racial conflicts etc. not only suffer immediate primary and
secondary victimization, but their trauma continues for future having adverse affect
on their family and children. This may also result in victim's displacement leaving
them without food, shelter and protection until they are re-settled or suitably
rehabilitated.
All these problems are directly related to victimization of crime victims and need to
be taken into consideration by victimologists. The criminal justice
system should provide remedies and relief to crime victims against violation of their
human and fundamental rights.
Restorative Justice for Crime victims
Gone are the days when retributive and preventive theories of criminal justice
1172 Weisaeth & I. Lind, artide in proceedings of the 2nd International Conference held
in Swedish Defence Research Institute, Stockholm 1990. p. 1707.
Victimology 675
were holding the field in dealing with crime and criminals. In recent decades, the
rehabilitative approaches in penology have given rise to emergence of the concept of
restorative justice. It represents a paradigm shift in dispensation of criminal justice
by involving the offender, the victim and the community as a whole, to ensure a
balance between offender's punishment and protection of victim's rights.
Compensatory relief to victim is the 'key-feature' of restorative justice system.
The concept of restorative justice is woven around four major themes, namely
(1) Restoration (2) Accountability (3) Community Protection and (4) Skill
development.
(1) Restoration.—It implies help and support to victim of crime, whether the
offender is apprehended and arrested or not. The victim is restored to normal life in
society by community's restorative efforts. Similar restoration of offender to
community is also a part of restorative process wherein the offender is made to
realise and acknowledge the harm or injury caused by him to the victim and show
willingness to be accountable for his wrongful action and redress the harm or
sufferings of the victim. Thus, restorative justice lays equal importance on the
rehabilitation of both victim and the offender and makes offender to realise the
consequences of his offence on the victim and compensate the latter for the loss or
injury caused due to crime.
(2) Accountability.—The process of victim-offender mediation1173 leads the
offender to accept accountability for harmful consequences of his criminal act on the
victim and he makes amends to the victim and also to the community.
Accountability of the offender and acceptance of guilt by him, has a soothing effect
on the victim which facilitates overcoming trauma and distress caused due to his
victimization. It is a positive approach involving both, offender and the victim to
understand each other.
(3) Community Protection.—Community surveillance provides best
opportunities to the offender to rehabilitate and reform himself and channelise his
energy into productive activities. For victim, community's protection and assistance
greatly helps in his return to normal life, forgetting the past (victimisation) and look
for the bright future. It provides him moral strength to withstand the sufferings and
consequences of his victimisation.
(4) Skill development.—Vocational training provides opportunities for the
offender as also the victim to develop new skills which may help in his restoration
and rehabilitation. Competency of development programmes constitutes a vital
segment of the restorative justice system.
Victim's Assistance Programme
The UN hand book on 'Justice for Victims'1174 has outlined a comprehensive
victim assistance scheme for the redress, relief and rehabilitation of the victims of
crime. The crime victims need help and support to pull them out of the emotional
trauma and physical and financial injuries suffered by them. They also deserve
support for participating in the criminal justice process and compensatory relief from
the offender and/or the government. The main objectives of the victim's. Assistance
Programme may be stated as follows :—
1. The governments and voluntary social service organisations should come
forward to assist the victims of crime in their restoration and
rehabilitation;
1173 This was successfully tried in France in 1993 and Germany in 1994.
1174 Hand book on Justice for victims published by Centre for International Crime
Prevention, New York 1999.
676 Criminology and Penoioy
2. The services and assistance for victims should not be confined only to
the immediate injury, harm or deprivation of rights but should extend
further throughout the aftermath;
3. Efforts should be made to expand victim's opportunity to participate in
criminal justice process and the courts should also realise the impact of
crime upon the victim and his family;
4. Developing community support to crime victims by mustering
cooperation of all appropriate agencies, organisations, groups, social
activists etc. Services affecting the treatment of victims should also be
strengthened;
5. criminal justice system should appreciate the 'unique needs' of victims
who are under-served or rendered without service or support of any
kind.1175
Advisory Group
In order to attend to the needs of victims in a particular area, the UN has
suggested establishment of formal or informal advisory groups having understanding
and knowledge of interests of crime victims. These groups should include
representatives from police, prosecution, health, psychologists professionals,
academicians and of course, peoples representatives from the locality. The groups
should interact with victims to solve their problems and work in close liaison with
other voluntary social service agencies. The system would facilitate collection of
information and data about the victims which may be used for policy formation by
the law- makers.
The advisory group should be truly representative in character and include both
males and females of varying ages and persons from different geographical areas,
cultures, religions, races and economic status.
The functions of the Advisory Group may include—
(1) to collect information regarding incidence of victimization;
(2) to conduct surveys and interviews with victims of crime;
(3) to initiate measures to provide redress and relief to victims on the basis
of police report, medical report or media reports etc.
(a) to survey social service institutions and community leaders for
assisting the victims and solving their problems.
(b) to participate in the criminal justice process to represent the cause
of victims.
However, while interacting with the victims and fighting for their cause, the
representatives of the Advisory Group should maintain confidentiality regarding
victim's details subject to legal requirements. The identity of the victim should not be
disclosed with a view to preventing his stigmatization.
Type of Services
The different type of services which the professionals engaged in victim's
assistance may render can be in the form of—
(1) crisis intervention;1176
(2) Counselling;
1175 Hand book on Justice for victims published by Centre for International fcrime
Prevention, New York 1999.
1176 It includes providing medical aid and emotional support to the victims and assist
them in providing food, shelter, property repairs, safety and security and also the financial
support.
Victimology 677
(3) Advocacy;
(4) Support during investigation process;
(5) Support during criminal proceedings and trial;
(6) Support after disposition of the proceedings;
(7) Violence prevention and
(8) Offender—Victim mediation.
Safeguarding Victim's Rights through Legal Reforms
Ever since the adoption of the Declaration of Basic Principles of Justice, for
victims of Power Abuse and Crime in 1985, considerable progress has been made by
many nations1177 including India, to provide assistance to victims of crime. However,
there has been general lack of support services and counselling as a legal measure
for the crime victims and whatever assistance is provided to them, it is more or less
in the form of family support or reimbursement of medical treatment expenses or
litigation costs etc. Therefore, it has to be admitted that this vital issue has not
received the attention of criminal law administers, which it deserves, and there is
general lack of adequate policies sensitive to victims. It may be because of the lack
of sense of commitment or want of political will to ameliorate the woes and
problems of victims of crime. There is need to mobilise public opinion and sensitise
criminal justice administrators to persuade the Government and law-makers to
provide a comprehensive legal framework for assistance and compensatory relief to
victims on the lines suggested by the World Society of Victimology and the United
Nations in its handbook on 'Justice for Victims'.1178
The legislative policy and law reform on victim's redressal and their assistance
should be based on certain fundamental principles which are as follows :—
1. Victims of crime deserve respect for their dignity, privacy and personal
liberty;
2. Victims need assistance and support to cope with the aftermath of their
victimization and their alienation from the society should be
1177 Notably, Belgium, Canada, France, Germany, Israel, Japan, Maxico, Netherlands,
New Zealand, South Africa, UK, USA, Australia etc.
1178 See U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power (November 1985).
678 Criminology and Penoloy
prevented;
3.The costs of policing, criminal justice, corrective measure and of course,
the reparation for loss of property or injury to person including medical
treatment cost etc. should be recoverable by the victim from the offender
or the state or from both;
4. Victim being the first hand witness and the main source of information
about crime and criminal, his version (statement) is of crucial
importance for police, prosecutors and courts. Therefore, the testimony
of victims should be properly weighed and evaluated and not easily
discarded;
5. While accepting the plea bargaining under section 265-A of the Code of
Criminal Procedure, 1973, the claims of victim(s) should not be ignored
in an anxiety to dispose of the case promptly;
6. The constitutional and human rights of the victim of crime should be
legally safeguarded1179
Care and Protection of Victims in other Countries
The continental countries have recognised two types of rights for victims of
crime as basic and indispensable. They are right of victim (s) to participate in
criminal proceedings, which includes right to be impleaded, right to know and to be
heard and help the court to find out the truth. The other right which every victim
must avail is to seek and receive compensation for the harm or injuries suffered
including right to appropriate interim reliefs during the court proceedings.
The French criminal justice system entitles all the parties who suffer injuries or
damages as a result of crime, to be impleaded as parties right from the time of the
investigation stage. They can move the court for appropriate action if they find that
the investigation is being unnecessarily delayed or distorted. The participation of
victim in the criminal proceedings is deemed necessary from the point of view of
supplementing the evidence. It may also help in eliminating the possibility of
unjustified withdrawal or closure of the case on extraneous or flimsy grounds as the
victim may resist the same or in case the victim has died, his legal representatives
may move the court for the cause of justice to the deceased victim. Even the
registered welfare organisations may get themselves impleaded in case of victims of
rape or sexual offences or where the victim is a child.
The modem American criminal justice system seeks to be more focused on
safeguarding the rights and interests of the victims of crime by affording there every
possible opportunity to ventilate their just cause before the trial court and seek relief.
The victimological developments in USA during the past three decades have
shown that understanding of victim facilitation1180 helps considerably in increasing
public awareness about the victim-offender relationship and at the
1179 Maxico has amended its constitution to include rights of Victim of Crime.
1180 The theory of victim facilitation was propounded by Marvin Wolfgang who opposed 'victim
blaming and held that it is rather the interactions of victim that makes him or her vulnerable to
a crime. It studies the factors that make a victim more accessible or vulnerable to the crime
attack.
Victimology 679
same time it also helps in crime investigations.
Mauvice Godwin (1998), has suggested that victim's social behaviour and
personality are directly related to his involvement in crime and therefore, study of
victims is necessarily multi disciplinary in nature. It not only involves scope for
compensation to the victim as a means of redressal but also approaches the problems
of victims form the spidemiological point of view.
The National Crime Victimization Suvery is the primary source of information
on statistics relating to victims of crime in United States. It represents victimization
rate for different offences and various segments of the population such as women,
elderly citizens, racial groups, urban groups, etc. The survey also contains data
regarding the frequency and consequences of criminal victimization in the country
which enables the criminal law agencies to formulate preventive strategics to
minimise victimization.
The Supreme Court of the U.S. recognised the rights of crime victim for the
first time in the case of Payne v. Tennessee1- at the sentencing stage of the trial. It
marks the beginning of judicial recognition of the rights of victims and need for
restorative justice for them. It has now bene accepted as an indispensable aspect of
the American criminal justice system. A victim impact panel is formed in which the
crime victim (relatives of deceased victim) meets with the offender after his
conviction and tells him about the impact of crime and asks for restoration.
South Asian Society of Criminology & Victimology (SASCV)
More recently, an international association called the South Asian Society of
Criminology & Victimology (SASCV) has been founded in February 2011, to
nurture and promote criminological and victimological knowledge in South Asian
countries such as Afghanistan, Bangladesh, Bhutan, India, Pakistan, Maldives, Sri
Lanka and Nepal. The countries share their best practices in order to develop
understanding of criminology and victimology as two important branches connected
with criminal justice system. The emphasis is in victim's restorative justice, both at
the governmental and the non-governmental level.
It has been generally accepted that the South Asian countries are facing acute
problems of corruption, criminal violence, terrorism, extremism, white caller crime
and cyber crimes, human rights violations, victimization etc. The SASCV seeks to
initiate measures to assist member countries in framing criminal justice oriented
legislative policies to support and cater the needs of victims of crime and of abuse of
power.
The main objectives of the South-Asian Society (SASCV) are as under :—
1. to serve as an international impartial, non-political and non-profit
making association whose purpose is to promote criminology and
victimology in South Asian region;
2. to function in close collaboration with other national and international
bodies to use the available resources for propagation of victimological
knowledge;
3. Scientific exchange of experts and organisation of international
seminars, symposia, workshops, conferences etc. on the related
1. 501 U.S. 908 (1991).


subject;
4. to encourage, promote and co-ordinate research development
programmes and evaluation activities related to criminology and
victimology in the South Asian region.
5. to sensitise those who are responsible for criminal justice system
regarding need for care, help and assistance to victim of crime through
resort to restorative justice;
6. to promote education and training of criminologists and victimologists
and professionals working in this field, particularly, the officials
entrusted with the administration of criminal justice.
Victims of Crime—Indian Position
The expression 'victims of crime' has been defined in section 2 (wa)1181 of the
Code of Criminal Procedure, 1973. Initially, the criminal justice system in India was
focused on punishment as part of the crime without much attention on the suffering
of victims of crime. The rights of prisoners were protected even after their conviction
whereas little concern was shown for the rights of victims of crime. However, with
the emergence of public interest litigation the higher courts attention was drawn to
this lacunae in the existing criminal justice system by social activists, and the courts
started granting compensatory relief to victims of crime, but a comprehensive
legislation on this aspect of criminal justice was still awaited.
Expressing concern for the plight of victims of crime Justice V.R. Krishna Iyar
commented "the criminal law in India is not victim oriented and the suffering of
victim, often immeasurable are entirely overlooked in misplaced sympathy for the
criminal. Though our modem criminal law is designed to punish as well as reform
the criminals, yet it overlooks the by-product of crime
i. e. the victim."1182
The Supreme Court has reiterated time and again, that a prisoner, be he a
convict or an undertrial or a detenue, does not cease to be a human being even when
lodged in jail and therefore, he continues to be entitled to all his fundamental rights
including right to life guaranteed under Article 21 of the constitution. As such he
cannot be deprived of his right to liberty in accordance with the procedure
established by law, even after his conviction and imprisonment in jail. But no such
concern is shown for the poor victim of crime who is left to suffer the aftermath of
his victimisation except awarding him monetary compensation in certain cases.
However, the victimological developments that have taken place during the
preceeding two decades and the international efforts to focus on need for restorative
justice to victims have yielded positive results and the member states have started
framing laws and legislative policies extending protection to the rights of crime
victims.1183
In response to the UN Declaration, In India the Code of Criminal
1181 Sec. 2 (wa) inserted by Cr.P.C. (Amendment) Act, 2008 (w.e.f31-12-2009).

1182 V.R. Krishna Iyer : Access to justice-A case of Basic change (1991) p. 14.
1183 The contribution of South Asian Society of Criminology & Victimology (SASCV) to
the development of victimology and offender-victim mediation mechanism deserving special
mention in this context.
Victimology 681
Procedure was amended in 2008 as to widen the definition of 'victim' as contained in
Sec. 2 (wa)1 of the Code. The term victim means a person who has suffered any loss
or injury caused by reason of the act or omission for which the accused person has
been charged and includes his/her guardian or legal heir.
Compensatory relief to victims
The legislative framework regarding compensatory relief to victims of crime in
India may be traced to the Code of Criminal Procedure. The Probation of Offenders
Act, ,1958 and the Motor Vehicles Act, 1988 also contain provisions for award of
compensation to victims of crime. Besides these legislations, the constitutional
scheme for compensatory victims is to be found in the form of decisions of the
Supreme Court while interpreting fundamental rights or directive principles of State
Policy or Articles 32, 136 and 142, when the Court may direct payment of
compensation to victim's of crime.
Compensatory Provisions in Cr.P.C.
Sub-sections (1) and (3) of Section 357 of Cr.P.C. vest power in the trial court
to award compensation to victim of crime whereas similar power is conferred to the
appellant and revisional court under sub-section (4). The Court may appropriate the
whole or any portion of fine recorded from the offender to be paid as compensationto
the victim of crime.
The compensation ordered to be paid under Section 357(1) may be for costs,
damage or injury suffered or loss caused due to death or monetary loss incurred due
to theft or destruction of property etc.
Sub-section (3) further empowers the court, in its discretion, to order the
accused to pay compensation to victim of his crime, even though no fine has been
imposed on him.
It is significant to note that a new section 357-A has been inserted by Cr.P.C.
(Amendment) Act, 2008 (5 of 2009) with effect from December 31, 2009, which
envisages 'Victim Compensation Scheme.' The section reads as under :—
"357-A. Victim Compensation Scheme.—(1) Every State Government in
coordination with the Central Government, shall prepare a scheme for
providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who
require rehabilitation.
(2) Whenever recommendation is made by the Court for compensation,
the District Legal Services Authority or the State Legal authority, as the case
may be, shall decide the quantum of compensation to be awarded under the
scheme referred to in sub-section (1).
(3) If the trial court, at the conclusion of trial, is satisfied, that the
compensation awarded under Section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the victim
has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is
identified, and where no trial takes place, the victim or his dependents may
make an application to the state or the District Legal Services Authority for
award of compensation.
(5) On receipt of such recommendations or on the application under sub-
section (4), the State or the District Legal Services Authority shall, after due
enquiry, award adequate compensation by completing the enquiry within two
1. Cr.P.C. (Amendment) Act, 2008 (w.e.f. 31-12-2009).
months.
(6) The State or the District Legal Services Authority, as the case may
be, to alleviate the suffering of the victim, may order for immediate first aid
facility or medical benefits to be made available free of cost on the certificate
of the police officer not below the rank of officer-in-charge of the police station
or a Magistrate of the area concerned, or any other interim relief as the
appropriate authority may deem fit."
The scheme contained in the section is indeed a progressive measure to
ameliorate the woes of crime victims and providing them restorative relief.
The Code also provides compensatory relief to victims of unlawful arrest or
detention by police without sufficient cause.1184
Where an accused is convicted of a non-cognizable offence on a complaint, the
court may order him to pay costs to the complainant or in default, suffer simple
imprisonment for a period not exceeding thirty days.1185
In case of recovery of amount of fine, of which, the whole or a part has to be
paid as compensation to the victim, the court may order attachment or sale of
movable property of the offender for its recovery as arrears of land revenue, if
necessary.
Compensation under Probation of Offenders Act
The Probation of Offenders Act, 1958 also contains provision for compensatory
relief to victim of crime under section 5(1) of the Act. The section provides that the
court directing the release of an offender under Section 3 or Section 4 of the Act,
may if it deems fit, further direct the accused to pay such compensation to the victim,
as the court thinks reasonable for the loss or injury caused to the latter, as also the
costs of the proceedings.
Compensation to victim under Motor Vehicle Act
The victims of vehicular accidents or their legal representatives in case of death
of the victim are entitled to claim compensation from the offender under Section 5 of
the Motor Vehicle Act, 1988. However, the power in this regard is vested only with
the trial court and none else.
Compensatory Relief to Victims—Judicial Trend
The contribution of judiciary to redress the claims of victims of crime is no less
significant. The higher courts have played a dominant role in assuring compensatory
justice to the victims of crime. While awarding such compensatory relief, they have
exercised due care and caution to ensure that people's faith in judicial process is not
shattered and the victims protective rights are not denied to them. Some of the
landmark judgments of the Supreme
1184 Section 358 (1) Cr.P.C.

1185 Section 359(1).
Victimology 683
Court ensuring restorative justice to victims of crime reflect the growing concern of
judiciary to protect the rights of victims.
Elaborating the scope of award of compensation to victim of crime under
section 358 of Cr.P.C., Justice V.Y. Chandrachud CJI (as he then was), in Rudal Shah
v. State of Bihar,1186 observed that a person is entitled to compensation for the loss or
injury caused by the offence, and it includes the wife, husband, parent and children of
the deceased victim.
The Apex Court in Sarwan Singh v. State of Punjab,1187 enumerated the factors
which the courts should take into consideration while ordering award of
compensation to the victim of crime. These factors include capacity of the accused to
pay, nature of the offence and the nature of injury suffered by the victim as also the
overall effect of crime on the victim's familial and social life and emotional or
financial loss caused to to him/her. The Court ruled that the quantum of
compensation must be reasonable, depending upon the of facts, circumstances and
justness of victim's claim. The accused must be given reasonable time for payment of
compensation and if necessary, it may be ordered to be paid in instatements.
In Bhim Singh v. State of J. & K.,1188 the Apex Court observed that "compensation
for illegal arrest and detention is an area which unearthed new doctrines pertaining to
compensatory jurisprudence in India. In this case, the appellant was a Member of the
J.&K. Legislature Assembly who was arrested by the police in connivance with the
local A.D.M. while on his way to attend the assembly session. He was maliciously
and deliberately arrested and detained in policy custody in order to prevent him from
attending the assembly session. Allowing the petition, Justice Chinnappa Reddy,
speaking for the Apex Court observed that where a person has been arrested and
detained with a malicious and mischievous intent and his legal and constitutional
rights are invaded, the malice and the invasion is not washed away by his being set
free. The court has the jurisdiction to order compensation to the victim. The State was
therefore, directed to pay a compensation of Rs.50,000/- to the petitioner for the
violation of his legal and constitutional right.
The question of award of compensation to a victim of rape came up for
adjudication before the Supreme Court in the historic Bodhisatva Gautam v. Subhra
Chakraborty's1189 case. The Court in this case noted :
"Rape is a crime not only against the person of a woman, it is a
crime against the entire society. It destroys the entire psychology of
a woman and pushes her into deep emotional crisis. It is, therefore, a
most dreaded crime. It is violative of the victim's most cherished
right, namely right to life, which includes right to live with human
dignity as contained in Art.
21 of the Constitution."
The Court ordered that the accused shall pay an interim compensation of Rs.
1000/- per month to the victim (woman) of his crime (i.e. rape) during the entire
period of trial proceedings. The Court further ruled that "compensation to victim
under such conditions will be justified even when the accused was not convicted.
In State of Maharashtra v. Christian Community Welfare Council of India} the
Supreme Court was called upon to decide whether the compensation paid by the State
to the victim can be recovered from the guilty officer. Justice Hedge, speaking for the
court held that it will depend on the fact whether the alleged misdeed by the officer
1186 AIR 1983 SC 1086.

1187 AIR 2000 SC 362.
1188 AIR 1986 SC 498.
1189 AIR 1996 SC 922.
concerned was committed in the course of the discharge of his official duties and
whether it was beyond or in excess of his lawful authority. If it was found that the
appellant officers did cause the death of the deceased and exceeded their lawful
authority then they cannot escape the liability to compensate the heirs of the deceased
victim.
In R. Gandhi v. Union of India,1190 the District Collector of Coimbatore had
recommended that the State Government shall pay Rs. 33,19,003/- as compensation
to those families of Sikhs and others living in Coimbatore, who were victims of arson
and rioting in the wake of assassination of the former Prime Minister of India, Shri
Rajeev Gandhi. The High Court of Madras, upheld the order of the District Collector.
Justice S.A. Kadar of the Court observed : "Legally and morally by all canons of fair
play, by all principles of justice, equity and good conscience, the State of Tamil Nadu
is bound to pay compensation to victims as assessed and recommended by this senior
officer i.e. the Collector of Coimbatore."
In yet another landmark case on victim's compensatory relief, namely, D.K. Basu
v. State of West Bengal,1191 the Supreme Court, inter alia made the following observation
:
"The monetary and pecuniary compensation is an appropriate and
indeed an effective and sometimes perhaps the only suitable remedy
for the redressal of the established infringement of the fundamental
right to life of a citizen by the publi servants. The State is
vicariously liable to which the defence of sovereign immunity is not
available and the citizen must receive the amount of compensation
from the state; which shall have the right to be indemnified from the
wrongdoer."
The Supreme Court in State of Andhra Pradesh v. Chalia Ramakrishna Reddy*
relying on its earlier decision in D.K. Basu,1192 awarded Rs. 1,44,000/- as compensation
against the State Government for death of a person caused while he was in judicial
custody. Rejecting the defence plea that the prisoner was put in jail in exercise of
State's sovereign function, the Court ruled that the concept of sovereign power is not
an exception to the right to freedom of life, and constitutional guarantee of right to
live overrides the theory of state immunity.
1190 (2004) Cri.L.J. 510 (Mad.).

1191 AIR 1997 SC 610.
1192 AIR 1997 SC 610.
Victimology 685
I was not In Delhi Democratic Working Women Forum v. Union of India1193 seven military
jawans raped six village girls who were travelling by train. The court directed the
Central Government to pay Rs. 10000/- to each victim as compensation and ordered
that the names and identity of the victimised girls be kept secret to save them from
social stigma. The court also directed the National Women Commission to prepare a
rehabilitation scheme for such victims and expressed the need for setting up of a
Criminal Injuries Compensation Board which should decide the quantum of
compensation to be paid to victims of rape after taking into consideration their shock,
suffering as well as loss of earning due to pregnancy and the expenses of child birth,
if caused as a result of rape.
In the case of SAHELI1194 (a women social activist organisation) the Apex Court
directed the Delhi administration to pay Rs.75,000/- as exemplary compensation to
the mother of a nine year old boy who died due to beating by police officer while
extracting information from him regarding the offence. The dispute in this case was
related to the land lord (house owner) trying to oust the appellant (mother of the
deceased boy) from his house and the police was allegedly favouring the land lord.
Justice Malimath Committee Recommendation on Victims of Crime
Malimath Committee in its report has suggested that the right of the 'victim to
appeal against the order passed by the trial court should be further extended.1195 The
committee found no credible reason for the provision in the code of Criminal
Procedure that an appeal against acquittal should lie only to the High Court and not
to any court below. Moreover, the right to such appeal should not be limited only to
the prosecution but it should be available to the accused as well where the
prosecution declines to file the appeal. However, Section 372 of Cr.P.C. as amended
by the Cr.P.C. (Amendment) Act, 2008 now provides that the victim need not
approach the prosecution for its consent or approval to file an appeal against the
acquittal of the accused. This is indeed a welcome change in the procedural law
which now enables the victim to move in appeal against the acquittal order passed by
the trial court or against an order awarding the accused a lesser sentence or against
an order convicting the accused for a lesser offence or where the compensation
awarded to him (i.e. victim) is inadequate.
It would thus be seen that the amendment of the Code of Criminal Procedure,
in 2008, has undoubtedly made a beginning towards statutory protection of victim's
rights under the criminal justice system and now it is for the criminal law
administrator to implement the law in its true spirit.
Before concluding, it must be stated that victimology and justice for victims of
crimes is not exclusively a legal problem, it also has sociological, psychological,
financial and etl'cal implications which need to be addressed jointly by experts
working in these fields adopting a multi-disciplinary approach. A community based
Joint Victim Impact Panel on the American pattern may be constituted comprising lawyers,
judges, sociologists, psychologists, women activists, politicians etc. to decide victim's rights
and claims and their rehabilitation in the society.
1193 (1994) 4 SCALE 608.

1194 SAHELI v. Commissioner of Police, Delhi, AIR 1990 SC 513 see also Madina v. State
of Rajasthan, 2001 Cri.L.J. 4484.
1195 See 357-A inserted in Cr.P.C. by the Cr.P.C. (Amendment Act, 2008) includes most of
the recommendators which are pro-victim.
mcagie seiiiein.es wiuiuui raKing into consiaeranon the woes and sutterings of the
victims and its impact on society shall be result wise counter productive in the long
run. The victimological researches for the past three decades have shown that care and
protection of victim's right is an inseparable part of the sentencing system though
apparently it refers to the accused who perpetrates the crime. The law and particularly,
the criminal law as a cornerstone of the edifice of "order" in the society, should focus
not only on challenges confronting the society but also the sufferings of victims of
crimes who are faced with multiple problems for years and, in same cases even for the
whole of their life. It hardly needs to be stated that crime is one single act perpetrated
by the offender but its implications on society in general and victim(s) in particular
are far more painful, torturous and disgusting which the criminal law administrators
must keep in the forefront while dispensing criminal justice.
APPENDICES
Appendix I
The Unlawful Activities (Prevention) Act, 1967

(Act No. 37 of 1967)
(The Act has been amended in 2004)
[30tli December, 1967]
An Act to provide for the more effective prevention of certain unlawful activities of
individuals and associations 1196[, and dealing with terrorist activities] and for matters
connected therewith.
Be it enacted by Parliament in the Eighteenth Year of the Republic of India as
follows :—
CHAPTER I
PRELIMINARY
2
[1. Short title and extent.—(1) This Act may be called the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967).
(2) It extends to the whole of India.
(3) Every person shall be liable to punishment under this Act for every act or
omission contrary to the provisions thereof, of which he is held guilty in India.
(4) Any person, who commits an offence beyond India, which is punishable
under this Act, shall be dealt with according to the provisions of this Act in the same
manner as if such act had been committed in India.
(5) The provisions of this Act apply also to—
(a) citizens of India outside India;
(b) persons in the service of the Government, wherever they may be;
and
(c) persons on ships and aircrafts, registered in India, wherever they may
be.]
3[2. Definitions.—In this Act, unless the context otherwise requires—
(a) "association" means any combination or body of individuals;

(b) "cession of a part of the territory of India" includes admission of the
claim of any foreign country to any such part;
1196 Inserted by the Unawful Activities (Prevention) Amendment Act, 2004, Section 2
(w.e.f. 21-9-2004).
Criminology and Penology [Appendix I
(c) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974);

(d) "court" means a criminal court having jurisdiction, under the Code, to try
offences under this Act;
(e) "Designated Authority" means such officer of the Central Government not
below the rank of Joint Secretary to that Government, or such officer of the State
Government not below the rank of Secretary to that Government, as the case may be,
as may be specified by the Central Government or the State Government, by
notification published in the Official Gazette;
(f) "prescribed” means prescribed by rules made under this Act;
(g) "proceeds of terrorism" means all kinds of properties which have been
derived or obtained from commission of any terrorist act or have been acquired
through funds traceable to a terrorist act, irrespective of person in whose name such
proceeds are standing or in whose possession they are found, and includes any
property which is being used, or is intended to be used, for the purpose of a terrorist
organisation;
(h) "Property" means property and assets of every description, whether
corporeal or incorporeal, movable or immovable, tangible or intangible and deeds
and instruments evidencing title to, or interest in, such property or assets, and
includes cash and bank account;
(i) "secession of a part of the territory of India from the Union" includes the
assertion of any claim to determine whether such part will remain a part of the
territory of India;
(j) "State Government", in relation to a Union territory, means the
Administrator thereof;
(k) "terrorist act" has the meaning assigned to it in Section 15, and the
expressions "terrorism" and "terrorist" shall be construed accordingly;
(1) "terrorist gang" means any association, other than terrorist organisation,
whether systematic or otherwise, which is concerned with, or involved in, terrorist
act;
(m) "terrorist organisation" means an organisation listed in the Schedule or an
organisation operating under the same name as an organisation so listed;
(n) "Tribunal" means the Tribunal constituted under Section 5;
(o) "unlawful activity", in relation to an individual or association, means any
action taken by such individual or association (whether by committing an act or by
words, either spoken or written, or by signs or by visible representation or
otherwise),—
(i) which is intended, or supports any claim, to bring about, on any
ground whatsoever, the cession of a part of the territory of India or the
secession of a part of the territory of India from the Union, or which incites any
individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the
sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;
Appendix I] The Unlawful Activities (Prevention) Act, 1967 687
(p) "unlawful association" means any association—

(i) which has for its object any unlawful activity, or which
encourages or aids persons to undertake any unlawful activity, or of which
the members undertake such activity; or
(ii) which has for its object any activity which is punishable under
Section 153-A or Section 153-B of the Indian Penal Code, (45 of 1860), or
which encourages or aids persons to undertake any such activity, or of
which the members undertake any such activity : Provided that nothing
contained in sub-clause (ii) shall apply to the
State of Jammu and Kashmir.
(q) words and expressions used but not defined in this Act and
defined in the Code shall have the meaning respectively assigned to them
in the Code.
(2) Any reference in this Act to any enactment or any provision thereof shall,
in relation to an area in which such enactment or such provision is not in force, be
construed as a reference to the corresponding law or the relevant provision of the
corresponding law, if any, in force in that area.]
CHAPTER II
UNLAWFUL ASSOCIATIONS
3. Declaration of an association as unlawful.—(1) If the Central Government is
of opinion that any association is, or has become, an unlawful association, it may, by
notification in the official Gazette, declare such association to be unlawful.1197
(2) Every such notification shall specify the grounds on which it is issued and
such other particulars as the Central Government may consider necessary :
Provided that nothing in this sub-section shall require the Central Government
to disclose any fact which it considers to be against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal has, by an order
made under Section 4, confirmed the declaration made therein and the order is
published in the Official Gazette :
Provided that if the Central Government is of opinion that circumstances exist
which render it necessary for that Government to declare an association to be
unlawful with immediate effect, it may, for reasons to be stated in writing, direct that
the notification shall, subject to any order that may be made under Section 4, have
effect from the date of its publication in the Official Gazette.
(4) Every such notification shall, in addition to its publication in the Official
Gazette, be published in not less than one daily newspaper having circulation in the
State in which the principal office, if any, of the association affected is situated, and
shall be served on such association in such manner as the Central Government may
think fit and all or any of the following modes
(a) by affixing a copy of the notification to some conspicuous part of the
office, if any, of the association; or
(b) by serving a copy of the notification, where possible, on the principal
office-bearers, if any, of the association; or
(c) by proclaiming by beat of drum or by means of loudspeakers, the
contents of the notification in the area in which the activities of the association
are ordinarily carried on; or
1197 In exercise of the powers conferred by this section, the Central Government vide Notification
No. S.O. 190(E) dated 18th February, 1994 has declared the Jammu & Kashmir Liberation
Front (JKLF) including its members, activists, armed groups, sypathizers and self-styled leaders
operating inside India and abroad to be an unlawful association.
688 Criminology and Penology [Appendix I
may be followed in effecting such service, namely :—

(d) in such other manner as be prescribed.
4. Reference to Tribunal.—(1) Where any association has been declared
unlawful by a notification issued under sub-section (1) of Section 3, the Central
Government shall, within thirty days from the date of the publication of the
notification under the said sub-section, refer the notification to the Tribunal for the
purpose of adjudicating whether or not there is sufficient cause for declaring the
association unlawful.
(2) On receipt of a reference under sub-section (1), the Tribunal shall call
upon the association affected by notice in writing to show cause, within thirty days
from the date of the service of such notice, why the association should not be
declared unlawful.
(3) After considering the cause, if any, shown by the association or the office-
bearers or members thereof, the Tribunal shall hold an inquiry in the manner
specified in Section 9 and after calling for such further information as it may
consider necessary from the Central Government or from any office-bearer or
member of the association, it shall decide whether or not there is sufficient cause for
declaring the association to be unlawful and make, as expeditiously as possible and
in any case within a period of six months from the date of the issue of the
notification under sub-section (1) of Section 3, such order as it may deem fit either
confirming the declaration made in the notification or cancelling the same.
(4) The order of the Tribunal made under sub-section (3) shall be published in
the Official Gazette.
5. Tribunal.—(1) The Central Government may, by notification in the Official
Gazette, constitute, as and when necessary, a Tribunal to be known as the "Unlawful
Activities (Prevention) Tribunal" consisting of one person, to be appointed by the
Central Government :
Provided that no person shall be so appointed unless he is a Judge of a High
Court.
(2) If, for any reason, a vacancy (other than a temporary absence) occurs in
the office of the Presiding Officer of the Tribunal, then, the Central Government
shall appoint another person in accordance with the provisions of this section to fill
the vacancy and the proceedings may be continued before the Tribunal from the
stage at which the vacancy is filled.
(3) The Central Government shall make available to the Tribunal such staff as
may be necessary for the discharge of its functions under this Act.
(4) All expenses incurred in connection with the Tribunal shall be defrayed
out of the Consolidated Fund of India.
(5) Subject to the provisions of Section 9, the Tribunal shall have power
to
regulate its own procedure in all matters arising out of the discharge of its
functions including the place or places at which it will hold its sittings.
(6) The Tribunal shall, for the purpose of making an inquiry under this Act,
have the same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters,
namely :—
(a) the summoning and enforcing, the attendance of any witness and
examining him on oath;
(b) the discovery and production of any document or other material
object producible as evidence;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record from any court or office;
(e) the issuing of any commission for the examination of witnesses.
(7) Any proceeding before the Tribunal shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45
of 1860) and the Tribunal shall be deemed to be a Civil Court for the purposes of
Section 195 and '[Chapter XXVI] of the 1198[Code.]
6. Period of operation and cancellation of notification. —(1) Subject to the
provisions of sub-section (2), a notification issued under Section 3 shall, if the
declaration made therein is confirmed by the Tribunal by an order made under
Section 4, remain in force for a period of two years from the date on which the
notification becomes effective.
(2) Notwithstanding anything contained in sub-section (1), the Central
Government may, either on its own motion or on the application of any person
aggrieved, at any time, cancel the notification issued under Section 3, whether or not
the declaration made therein has been confirmed by the Tribunal.
7. Power to prohibit the use of funds of an unlawful association.—(1) Where
an association has been declared unlawful by a notification issued under Section 3
which has become effective under sub-section (3) of that section and the Central
Government is satisfied, after such inquiry as it may think it, that any person has
custody of any moneys, securities or credits which are being used or are intended to
be used for the purpose of the unlawful association, the Central Government may, by
order in writing, prohibit such person from paying, delivering, transferring or
otherwise dealing in any manner whatsoever with such moneys, securities or credits
or with any other moneys, securities or credits which may come into his custody
after the making of the order, save in accordance with the written orders of the
Central Government and a copy of such order shall be served upon the person so
prohibited in the manner specified in sub-section (3).
(2) The Central Government may endorse a copy of the prohibitory order made
under sub-section (1) for investigation to any gazetted officer of the Government it
may select, and such copy shall be a warrant whereunder such officer may enter in or
upon any premises of the person to whom the order is directed, examine .the books
of such person, search for moneys, securities or credits, and make inquiries from
such person or any officer, agent or servant of such person, touching the origin of
any dealings in any moneys, securities or credits which the investigating officer may
suspect are being used or are intended to be used for the purpose of the unlawful
association.
(3) A copy of an order made under this section shall be served in the manner
provided in the ‘[Code], for the service of a summons, or, where the person to be
served is a corporation, company, bank or other association, it shall be served on any
1198 Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004, Section
690 Criminology and Penology [Appendix III
secretary, director or other officer or person concerned with the management thereof,
or by leaving it or sending it by post addressed to the corporation, company, bank or
other association at its registered office, or where there is no registered office, at the
place where it carries on business.
(4) Any person aggrieved by a prohibitory order made under sub-section
(1) may, within fifteen days from the date of the service of such order, make
an application to the Court of the District Judge within the local limits of whose
jurisdiction such person voluntarily resides or carries on business or personally
works for gain, to establish that the moneys, securities or credits in respect of which
the prohibitory order has been made are not being used or are not intended to be used
for the purpose of the unlawful association and the Court of the District Judge shall
decide the question.
(5) Except so far as is necessary for the purposes of any proceedings under
this section, no information obtained in the course of any investigation made under
sub-section (2) shall be divulged by any gazetted officer of the Government, without
the consent of the Central Government.
(6) In this section, "security" includes a document whereby any person
acknowledges that he is under a legal liability to pay money, or where under any
person obtains a legal right to the payment of money.
8. Power to notify places used for the purpose of an unlawful association. —
(1) Where an association has been declared unlawful by a notification issued under
Section 3 which has become effective under sub-section (3) of that section, the
Central Government may, by notification in the Official Gazette, notify any place
which in its opinion is used for the purpose of such unlawful association.
Explanation.—For the purposes of this sub-section, "place" includes a house or
building, or part thereof, or a tent or vessel.
(2) On the issue of a notification under sub-section (1), the District Magistrate
within the local limits of whose jurisdiction such notified place is situate or any
officer authorised by him in writing in this behalf shall make a list of all movable
properties (other than wearing-apparel, cooking vessels, beds and beddings, tools of
artisans, implements of husbandry, cattle, grain and food-stuffs and such other
articles as he considers to be of a trivial nature) found in the notified place in the
presence of two respectable witnesses.
(3) If, in the opinion of the District Magistrate, any articles specified in the list
are or may be used for the purpose of the unlawful association, he may make an
order prohibiting any person from using the articles save in accordance with the
written orders of the District Magistrate.
(4) The District Magistrate may, thereupon, make an order that no
person who at the date of the notification was not a resident in the notified place
shall, without the permission of the District Magistrate, enter, or be on or in, the
notified place :
Provided that nothing in this sub-section shall apply to any near relative of any
person who was a resident in the notified place at the date of the notification.
(5) Where in pursuance of sub-section (4), any person is granted permission to
enter, or to be on or in, the notified place, that person shall, while acting under such
permission, comply with such orders for regulating his conduct as may be given by
the District Magistrate.
(6) Any police officer, not below the rank of a sub-inspector, or any other
person authorised in this behalf by the Central Government may search any person
entering, or seeking to enter, or being on or in, the notified place and may detain any
such person for the purpose of searching him :
Provided that no female shall be searched in pursuance of this sub-section
except by a female.
(7) If any person is in the notified place in contravention of an order made
under sub-section (4), then, without prejudice to any other proceedings which may be
taken against him, he may be removed there from by any officer or by any other
person authorised in this behalf by the Central Government.
(8) Any person aggrieved by a notification issued in respect of a place under
sub-section (1) or by an order made under sub-section (3) or sub-section
(4) may, within thirty days from the date of the notification or order, as the
case may be, make an application to the Court of the District Judge within the local
limits of whose jurisdiction such notified place is situate—
(a) for declaration that the place has not been used for the purpose
of the unlawful association; or
(b) for setting aside the order made under sub-section (3) or
sub-section (4),
and on receipt of the application the Court of the District Judge shall, after giving the
parties an opportunity of being heard, decide the question.
9. Procedure to be followed in the disposal of applications under this Act.—
Subject to any rules that may be made under this Act, the procedure to be followed
by the Tribunal in holding any inquiry under sub-section (3) of Section 4 or by a
Court of the District Judge in disposing of any application under subsection (4) of
Section 7 or sub-section (8) of Section (8) shall, so far as may be, be the procedure
laid down in the '[Code]; for the investigation of claims and the decision of the
Tribunal or the Court of the District Judge, as the case may be, shall be final.
CHAPTER III
OFFENCES AND PENALTIES
10. Penalty for being member of an unlawful association, etc.— Where an
2
association is declared unlawful by a notification issued under Section 3 which has

become effective under sub-section (3) of that section,—
(a) a person, who—
(i) is and continues to be a member of such association; or
(ii) takes part in meetings of such association; or
(iii) contributes to, or receives or solicits any contribution for the
purpose of, such association; or
(iv) in any way assists the operations of such association, shall be
punishable with imprisonment for a term which may extend
to two years, and shall also be liable to fine; and
(b) a person, who is or continues to be a member of such association, or
voluntarily does an act aiding or promoting in any manner the objects of such
association and in either case is in possession of any unlicensed firearms,
ammunition, explosive or other instrument or substance capable of causing
mass destruction and commits any act resulting in loss of human life or
grievous injury to any person or causes significant damage to any property,—
(i) and if such act has resulted in the death of any person, shall be
punishable with death or imprisonment for life, and shall also be liable to fine;
(ii) in any other case, shall be punishable with imprisonment for a term
which shall not be less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.]
11. Penalty for dealing with fund of an unlawful association.— If any person
on whom a prohibitory order has been served under sub-section (1) of Section 7 in
respect of any moneys, securities or credits, pays, delivers, transfers or otherwise
deals in any manner whatsoever with the same in contravention of the prohibitory
order, he shall be punishable with imprisonment for a term which may extend to
three years, or with fine, or with both, and notwithstanding anything contained in the
‘[Code], the court trying such contravention may also impose on the person
convicted an additional fine to recover from him the amount of the moneys or credits
or the market value of the securities in respect of which the prohibitory order has
been contravened or such part thereof as the court may deem fit.
12. Penalty for contravention of an order made in respect of a notified place.—
(I) Whoever uses any article in contravention of a prohibitory order in respect thereof
made under sub-section (3) of Section 8 shall be punishable with imprisonment for a
term which may extend to one year, and shall also be liable to fine.
(2) Whoever knowingly and wilfully is in, or effects or attempts to effect entry
into, a notified place in contravention of an order made under sub-section
(4) of Section 8 shall be punishable with imprisonment for a term which may 'extend
to one year, and shall also be liable to fine.
M. Punishment for unlawful activities.—(1) Whoever— takes
part in or commits, or
i by the Unlawful Activities (Prevention) Amendment Act, 2004, Section the of
Criminal Procedure, 1898 (5 of 1898)" (w.e.f. 21-9-2004).
(b) advocates, abets, advises or incites the commission of, any unlawful
activity, shall be punishable with imprisonment for a term which may extend to
seven years and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association,
declared unlawful under Section 3, after the notification by which it has been so
declared has become effective under sub-section (3) of that section, shall be
punishable with imprisonment for a term which may extend to five years, or with
fine, or with both.
(3) Nothing in this section shall apply to any treaty, agreement or convention
entered into between the Government of India and the Government of any other
country or to any negotiations therefor carried on by any person authorised in this
behalf by the Government of India.
14. Offences to be cognizable.—Notwithstanding anything contained in the
'[Code], an offence punishable under this Act shall be cognizable.
"[CHAPTER IV
PUNISHMENT FOR TERRORIST ACTIVITIES
15. Terrorist act.—Whoever, with intent to threaten the unity, integrity,
security or sovereignty of India or to strike terror in the people or any section of the
people in India or in any foreign country, does any act by using bombs, dynamite or
other explosive substances or inflammable substances or firearms or other lethal
weapons or poisons or noxious gases or other chemicals or by any other substances
(whether biological or otherwise) of a hazardous nature, in such a manner as to
cause, or likely to cause, death of, or injuries to any person or persons or loss of, or
damage to, or destruction of, property or disruption of any supplies or services
essential to the life of the community in India or in any foreign country or causes
damage or destruction of any property or equipment used or intended to be used for
the defence of India or in connection with any other purposes of the Government of
India, any State Government or any of their agencies, or detains any person and
threatens to kill or injure such person in order to compel the Government in India or
the Government of a foreign country or any other person to do or abstain from doing
any act, commits a terrorist act.
16. Punishment for terrorist act.—(1) Whoever commits a terrorist act shall,—
(a) if such act has resulted in the death of any person, be punishable with
death or imprisonment for life, and shall also be liable to fine;
(b) in any other case, be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for life,
and shall also be liable to fine.
17. Punishment for raising fund for terrorist act.—Whoever raises fund for the
purpose of committing a terrorist act shall be punishable with imprisonment for a
term which shall not be less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.
18. Punishment for conspiracy, etc.—Whoever, conspires or attempts to
commit, or advocates, abets, advises or incites or knowingly facilitates the
commission of, a terrorist act or any act preparatory to the commission of a terrorist
act, shall be punishable with imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for life, and shall also be liable to
fine.
19. Punishment for harbouring etc.—Whoever voluntarily harbours or
conceals, or attempts to harbour or conceal any person knowing that such person is a
terrorist shall be punishable with imprisonment for a term which shall not be less
than three years but which may extend to imprisonment for life, and shall also be
liable to fine :
Provided that this section shall not apply to any case in which the harbour or
concealment is by the spouse of the offender.
20. Punishment for being member of terrorist gang or organisation.—Any
person who is a member of a terrorist gang or a terrorist organisation, which is
involved in terrorist act, shall be punishable with imprisonment for a term which may
extend to imprisonment for life, and shall also be liable to fine.
21. Punishment for holding proceeds of terrorism.—Whoever knowingly
holds any property derived or obtained from commission of any terrorist act or
acquired through the terrorist fund shall be punishable with imprisonment for a term
which may extend to imprisonment for life, and shall also be liable to fine.
22. Punishment for threatening witness.—Whoever threatens any person who
is a witness or any other person in whom such witness may be interested, with
violence, or wrongfully restrains or confines the witness, or any other person in
whom the witness may be interested, or does any other unlawful act with intent to
cause any of the said acts, shall be punishable with imprisonment which may extend
to three years, and shall also be liable to fine.
23. Enhanced penalties.—(1) If any person with intent to aid any terrorist
contravenes any provision of, or any rule made under the Explosives Act, 1884 (4 of
1884) or the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable
Substances Act, 1952 (20 of 1952) or the Arms Act, 1959 (54 of 1959), or is in
unauthorised possession of any bomb, dynamite or hazardous explosive substance or
other lethal weapon or substance capable of mass destruction or biological or
chemical substance or warfare, he shall, notwithstanding anything contained in any
of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment
for a term which shall not be less than five years but which may extend to
imprisonment for life, and shall also be liable to fine.
(2) Any person who, with intent to aid any terrorist, attempts to contravene or
abets, or does any act preparatory to contravention of any provision of any law or
rule specified in sub-section (1), shall be deemed to have contravened that provision
under sub-section (1) and the provisions of that subsection in relation to such person,
have effect subject to the modification that the reference to "imprisonment for life"
therein shall be construed as a reference to "imprisonment for ten years".
CHAPTER V
FORFEITURE OF PROCEEDS OF TERRORISM
24. Forfeiture of proceeds of terrorism.—(1) No person shall hold or be
in possession of any proceeds of terrorism.
(2) Proceeds of terrorism, whether held by a terrorist or by any other person
and whether or not such terrorist or other person is prosecuted or convicted for any
offence under Chapter IV or Chapter VI, shall be liable to be forfeited to the Central
Government or the State Government, as the case may be, in the manner provided
under this Chapter.
25. Powers of investigating officer and Designated Authority and appeal
against order of Designated Authority.—(1) If an officer investigating an offence
committed under Chapter IV or Chapter VI, has reason to believe that any property
in relation to which an investigation is being conducted, represents proceeds of
terrorism, he shall, with the prior approval in writing of the Director General of the
Police of the State in which such property is situated, make an order seizing such
property and where it is not practicable to seize such property, make an order of
attachment directing that such property shall not be transferred or otherwise dealt
with except with the prior permission of the officer making such order, or of the
Designated Authority before whom the property seized or attached is produced and a
copy of such order shall be served on the person concerned.
(2) The investigation officer shall duly inform the Designated Authority
within forty-eight hours of the seizure or attachment of such property.
(3) The Designated Authority before whom the seized or attached property is
produced shall either confirm or revoke the order of seizure or attachment so issued
within a period of sixty days from the date of such production :
Provided that an opportunity of making a representation by the person whose
property is being seized or attached shall be given.
(4) In the case of immovable property attached by the investigating officer, it
shall be deemed to have been produced before the Designated Authority, when the
investigating officer notifies his report and places it at the disposal of the Designated
Authority.
(5) The investigating officer may seize and detain any cash to which this
Chapter applies if he has reasonable grounds for suspecting that—
(a) it is intended to be used for the purposes of terrorism; or
(b) it forms the whole or part of the resources of a terrorist
organisation :
Provided that the cash seized under this sub-section by the investigating officer
shall be released within a period of forty-eight hours beginning with the time when it
is seized unless the matter involving the cash is before the Designated Authority and
such Authority passes an order allowing its retention beyond forty-eight hours.
Explanation.—For the purposes of this sub-section, "cash" means—
(a) coins or notes in any currency;
(b) postal orders;
(c) traveller's cheques;
(d) banker's drafts; and
(e) such other monetary instruments as the Central Government or, as
the case may be, the State Government may specify by an order made in
writing.
(6) Any person aggrieved by an order made by the Designated Authority may
prefer an appeal to the court within a period of thirty days from the date of receipt of
the order, and the court may either confirm the order of attachment of property or
seizure so made or revoke such order and release the property.

26. Court to order forfeiture of proceeds of terrorism.—Where any property is
seized or attached on the ground that it constitutes proceeds of terrorism and the
court confirms the order in this regard under sub-section (6) of section 25, it may
order forfeiture of such property, whether or not the person from whose possession it
is seized or attached, is prosecuted in a court for an offence under Chapter IV or
Chapter VI.
27. Issue of show cause notice before forfeiture of proceeds of terrorism.—(1)
No order forfeiting any proceeds of terrorism shall be made under section 26 unless
the person holding or in possession of such proceeds is given a notice in writing
informing him of the grounds on which it is proposed to forfeit the proceeds of
terrorism and such person is given an opportunity of making a representation in
writing within such reasonable time as may be specified in the notice against the
grounds of forfeiture and is also given a reasonable opportunity of being heard in the
matter.
(2) No order of forfeiture shall be made under sub-section (1), if such person
establishes that he is a bona fide transferee of such proceeds for value without
knowing that they represent proceeds of terrorism.
(3) It shall be competent for the court to make an order in respect of the
property seized or attached,—
(a) directing it to be sold if it is a perishable property and the provisions
of section 459 of the Code shall, as nearly as may be practicable, apply to the
net proceeds of such sale;
(b) nominating any officer of the Central Government or the State
Government, in the case of any other property, to perform the function of the
Administrator of such property subject to such conditions as may be specified
by the court.
28. Appeal.—(1) Any person aggrieved by an order of forfeiture under section
26 may, within one month from the date of the receipt of such order, appeal to the
High Court within whose jurisdiction, the court, which passed the order appealed
against, is situated.
(2) Where an order under section 26 is modified or annulled by the High
Court or where in a prosecution instituted for any offence under Chapter IV or
Chapter VI, the person against whom an order of forfeiture has been made under
section 26 is acquitted, such property shall be returned to him and in either case if it
is not possible for any reason to return the forfeited property, such person shall be
paid the price therefor as if the property had been sold to the Central Government
with reasonable interest calculated from the day of seizure of the property and such
price shall be determined in the manner prescribed.
29. Order of forfeiture not to interfere with other punishments.—The
order of forfeiture made under this Chapter by the court, shall not prevent the
infliction of any other punishment to which the person affected thereby is liable
under Chapter IV or Chapter VI.
30. Claims by third party.—(1) Where any claim is preferred or any objection
is made to the seizure or attachment of any property under section 25 on the ground
that such property is not liable to seizure or attachment, the Designated Authority
before whom such property is produced, shall proceed to investigate the claim or
objection :
Provided that no such investigation shall be made where the Designated
Authority considers that the claim or objection is designed to cause unnecessary
delay.
(2) Where an appeal has been preferred under sub-section (6) of section 25 and
any claimant or objector establishes that the property specified in the notice issued
under section 27 is not liable to be forfeited under this Chapter, the said notice shall
be withdrawn or modified accordingly.
31. Powers of Designated Authority.—The Designated Authority, acting
under the provisions of this Chapter, shall have all the powers of a civil court
required for making a full and fair inquiry into the matter before it.
32. Certain transfers to be null and void.—Where, after the issue of an order
under section 25 or issue of a notice under section 27, any property referred to in the
said order or notice is transferred by any mode whatsoever, such transfer shall, for
the purpose of the proceedings under this Chapter, be ignored and if such property is
subsequently forfeited, the transfer of such property shall be deemed to be null and
void.
33. Forfeiture of property of certain persons.—(1) Where any person is
accused of an offence under Chapter IV or Chapter VI, it shall be open to the court
to pass an order that all or any of the properties, movable or immovable or both,
belonging to him, shall, during the period of such trial, be attached, if not already
attached under this Chapter.
(2) Where a person has been convicted of any offence punishable under
Chapter IV or Chapter VI, the court may, in addition to awarding any punishment,
by order in writing, declare that any property, movable or immovable or both,
belonging to the accused and specified in the order, shall stand forfeited to the
Central Government or the State Government, as the case may be, free from all
encumbrances.
34. Company to transfer shares to Government.—Where any share in a
company stands forfeited to the Central Government or the State Government, as the
case may be, under this Chapter, then, the company shall, on receipt of the order of
the court, notwithstanding anything contained in the Companies Act, 1956 (1 of
1956), or the articles of association of the company, forthwith register the Central
Government or the State Government, as the case may be, as the transferee of such
share.
CHAPTER VI
TERRORIST ORGANISATIONS
35. Amendment of Schedule, etc.—(1) The Central Government may, by order,
in the Official Gazette,—
(a) add an organisation in the Schedule;
(b) add also an organisation to the Schedule, which is identified as a
terrorist organisation in a resolution adopted by the Security Council under
Chapter VII of the Charter of the United Nations, to combat international
terrorism;
(c) remove an organisation from the Schedule;
(d) amend the Schedule in some other way.
(2) The Central Government shall exercise its power under clause (a) of sub-
section (1) in respect of an organisation only if it believes that it is involved in
terrorism.
(3) For the purposes of sub-section (2), an organisation shall be deemed to be
involved in terrorism if it—
(a) commits or participates in acts of terrorism, or
(b) prepares for terrorism, or
(c) promotes or encourages terrorism, or
(d) is otherwise involved in terrorism.
36. Denotification of a terrorist organisation.—(1) An application may be

made to the Central Government for the exercise of its power under clause
(c) of sub-section (1) of section 35 to remove an organisation from the
Schedule.
(2) An application under sub-section (1) may be made by—
(a) the organisation, or
(b) any person affected by inclusion of the organisation in the Schedule
as a terrorist organisation.
(3) The Central Government may prescribe the procedure for admission and
disposal of an application made under this section.
(4) Where an application under sub-section (1) has been rejected the applicant
may apply for a review to the Review Committee constituted by the Central
Government under sub-section (1) of Section 37 within one m. ' there from the date
of receipt of the order of such refusal by the applicant.
(5) The Review Committee may allow an application for review against
rejection to remove an organisation from the Schedule, if it considers that the
decision to reject was flawed when considered in the light of the principles
applicable on an application for judicial review.
(6) ' Where the Review Committee allows review under sub-section (5)
by or in respect of an organisation, it may make an order to such effect.
(7) Where an order is made under sub-section (6), the Central Government
shall, as soon as the certified copy of the order is received by it, make an order
removing the organisation from the Schedule.
37. Review Committees.—(1) The Central Government shall constitute one or
more Review Committees for the purposes of section 36.
(2) Every such Committee shall consist of a Chairperson and such other
members not exceeding three and possessing such qualifications as may be
prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a
Judge of a High Court, who shall be appointed by the Central Government and in the
case of appointment of a sitting Judge, the concurrence of the Chief
Justice of the concerned High Court shall be obtained.
38. Offence relating to membership of a terrorist organisation.—(1) A
person, who associates himself, or professes to be associated, with a terrorist
organisation with intention to further its activities, commits an offence relating to
membership of a terrorist organisation :
Provided that this sub-section shall not apply where the person charged is able
to prove—
(a) that the organisation was not declared as a terrorist organisation at
the time when he became a member or began to profess to be a member; and
(b) that he has not taken part in the activities of the organisation at any
time during its inclusion in the Schedule as a terrorist organisation. (2) A
person, who commits the offence relating to membership of a
terrorist organisation under sub-section (1), shall be punishable with imprisonment
for a term not exceeding ten years, or with fine, or with both.
39. Offence relating to support given to a terrorist organisation.— (1) A
person commits the offence relating to support given to a terrorist organisation,—
(a) who, with intention to further the activity of a terrorist
organisation,—
(i) invites support for the terrorist organisation, and
(ii) the support is not or is not restricted to provide money or other
property within the meaning of section 40; or
(b) who, with intention to further the activity of a terrorist organisation,

arranges, manages or assists in arranging or managing a meeting which he
knows is—
(i) to support the terrorist organisation, or
(ii) to further the activity of the terrorist organisation, or
(iii) to be addressed by a person who associates or professes to be
associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist organisation,
addresses a meeting for the purpose of encouraging support for the terrorist
organisation or to further its activity.
(2) A person, who commits the offence relating to support given to a terrorist
organisation under sub-section (1), shall be punishable with imprisonment for a term
not exceeding ten years, or with fine, or with both.
40. Offence of raising fund for a terrorist organisation.—(1) A person
commits the offence of raising fund for a terrorist c organisation, who, with intention
to further the activity of a terrorist organisation,—
(a) invites another person to provide money or other property, and
intends that it should be used, or has reasonable cause to suspect that it might
be used, for the purposes of terrorism; or
(b) receives money or other property, and intends that it should be used,
or has reasonable cause to suspect that it might be used, for the purposes of
terrorism; or
(c) provides money or other property, and knows, or has reasonable
cause to suspect, that it would or might be used for the purposes of terrorism.
Explanation.—For the purposes of this sub-section, a reference to provide
money or ether property includes of its being given, lent or otherwise made
available, whether or not for consideration.
(2) A person, who commits the offence of raising fund for a terrorist
organisation under sub-section (1), shall be punishable with imprisonment for a term
not exceeding fourteen years, or with fine, or with both.
CHAPTER VII
MISCELLANEOUS
41. Continuance of association.—An association shall not be deemed to have
ceased to exist by reason only of any formal act of its dissolution or change of name
but shall be deemed to continue so long as any actual combination for the purposes
of such association continues between any members thereof.
42. Power to delegate.—The Central Government may, by notification in the
Official Gazette, direct that all or any of the powers which may be exercised by it
under Section 7, or Section 8, or both, shall, in such circumstances and under such
conditions, if any, as may be specified in the notification, be exercised also by any
State Government and the State Government may, with the previous approval of the
Central Government, by order in writing, direct that any power which has been
directed to be exercised by it shall, in such circumstances and under such conditions,
if any, as may be specified in the direction, be exercised by any person subordinate
to the State Government as may be specified therein.
43:*- Officers competent to investigate offences under Chapters IV and VI.—
Notwithstanding anything contained in the Code, no police officer,—
(a) in the case of the Delhi Special Police Establishment, constituted
under sub-section (1) of section 2 of the Delhi Special Police Establishment
Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police
or a police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and

Ahmedabad and any other metropolitan area notified as such under sub-section
(1) of section 8 of the Code, below the rank of an Assistant Commissioner of
Police;
(c) in any case not relatable to clause (a) or clause (b), below the rank of
a Deputy Superintendent of Police or a police officer of an equivalent rank,
shall investigate any offence punishable under Chapter IV or Chapter VI.
44. Protection of witnesses.—(1) Notwithstanding anything contained in the
Code, the proceedings under this Act may, for reasons to be recorded in writing, be
held in camera if the court so desires.
(2) A court, if on an application made by a witness in any proceeding before it
or by the Public Prosecutor in relation to such witness or on its own motion, is
satisfied that the life of such witness is in danger, it may, for reasons to be recorded
in writing, take such measures as it deems fit for keeping the identity and address of
such witness secret.
(3) In particular, and without prejudice to the generality of the provisions of
sub-section (2), the measures which a court may take under that sub-section may
include—
(a) the holding of the proceedings at a place to be decided by the court;
(b) the avoiding of the mention of the name and address of the witness in
its orders or judgments or in any records of the case accessible to public;
(c) the issuing of any directions for securing that the identity and address
of the witness are not disclosed;
(d) a decision that it is in the public interest to order that all or any of the
proceedings pending before such a court shall not be published in any manner.
(4) Any person, who contravenes any decision or direction issued under sub-
section (3), shall be punishable with imprisonment for a term which may extend to
three years, and shall also be liable to fine.
45. Cognizance of offences.—No court shall take cognizance of any offence—
(i) under Chapter III without the previous sanction of the Central
Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous sanction of the
Central Government or, as the case may be, the State Government, and where
such offence is committed against the Government of a foreign country without
the previous sanction of the Central Government.
46. Admissibility of evidence collected through the interception of
communications.—Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872) or any other law for the time being in force, the evidence collected
through the interception of wire, electronic or oral communication under the
provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the Information
Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall
be admissible as evidence against the accused in the court during the trial of a case :
Provided that the contents of any wire, electronic or oral communication
intercepted or evidence derived therefrom shall not be received in evidence or
otherwise disclosed in any trial, hearing or other proceeding in any court unless each
accused has been furnished with a copy of the order of the competent authority under
the aforesaid law, under which the interception was directed, not less than ten days
before trial, hearing or proceeding :
Provided further that the period of ten days may be waived by the judge trying
the matter, if he comes to the conclusion that it was not possible to furnish the
accused with such order ten days before the trial, hearing or proceeding and that the
accused shall not be prejudiced by the delay in receiving such order.
47. Bar of jurisdiction.—(1) Save as otherwise expressly provided in this Act,

no proceeding taken under this Act by the Central Government or the District
Magistrate or any officer authorised in this behalf by the Central Government or the
District Magistrate, shall be called in question in any civil court in any suit or
application or by way of appeal or revision, and no injunction shall be granted by any
civil court or other authority in respect of any action taken or to be taken in
pursuance of any power conferred by or under this Act.
(2) Notwithstanding anything contained in sub-section (1), no civil court or
other authority shall have, or be entitled to exercise, any jurisdiction, powers or
authority in relation to the matters referred to in section 36.
48. Effect of Act and rules, etc., inconsistent with other enactments.—The
provisions of this Act or any rule or order made thereunder shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other
than this Act or any instrument having effect by virtue of any enactment other than
this Act.
49. Protection of action taken in good faith.—No suit, prosecution or other
legal proceeding shall lie against—
(a) the Central Government or a State Government or any officer or
authority of the Central Government or State Government or District
Magistrate or any officer authorised in this behalf by the Government or the
District Magistrate or any other authority on whom powers have been
conferred under this Act, for anything which is in good faith done or purported
to be done in pursuance of this Act or any rule or order made thereunder; and
(b) any serving or retired member of the armed forces or paramilitary
forces in respect of any action taken or purported to be taken by him in good
faith, in the course of any operation directed towards combating terrorism.
50. Saving.—Nothing in this Act shall affect the jurisdiction exercisable by,
or the procedure applicable to, any court or other authority under any law relating to
the navy, army or air force or other armed forces of the Union.
51. Impounding of passport and arms licence of person charge-sheeted under
the Act.—Notwithstanding anything contained in any other law for the time being in
force, the passport and the arms licence of a person, who is charge-sheeted for
having committed any offence under this Act, shall be deemed to have been
impounded for such period as the court may deem fit.
52. Power to make rules.—(1) The Central Government may, by notification
in the Official Gazette, make rules for .Tarrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
powers, such rules may provide for all or any of the following matters, namely :—
(a) the service of notices or orders issued or made under this Act and the
manner in which such notices or orders may be served, where the person to be
served is a corporation, company, bank or other association;
(b) the procedure to be followed by the Tribunal or a District Judge in
holding any inquiry or disposing of any application under this Act;
(c) determination of the price of the forfeited property under sub-section
(2) of section 28;
(d) the procedure for admission and disposal of an application under
sub-section (3) of section 36;
(e) the qualifications of the members of the Review Committee under
sub-section (2) of section 37; and
(f) any other matter which is required to be, or may be, prescribed.
53. Orders and rules to be laid before both Houses of
Parliament.—Every order and every rule made by the Central Government under
this Act shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the order or rule or both
Houses agree that the order or rule should not be made, the order or rule shall
thereafter have effect only in such modified form or be of no effect, as the case may
be; so, however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that order or rule.
THE SCHEDULE [See sections 2 (1), (m) and 35]

TERRORIST ORGANISATIONS
1. Babbar Khalsa International.
2. Khalistan Commando Force.
3. Khalistan Zindabad Force.
4. International Sikh Youth Federation.
5. Lashkar-E-Taiba/Pasban-E-Ahle Hadis.
6. Jaish-E-Mohammed /Tahrik-E-Furqan.
7. Harkat-Ul-Mujahideen/Harkat-Ul-Ansar/Harkat-Ul-Jehad-E- Islami.
8. Hizb-Ul-Mujahideen/Hizb-Ul-Mujahideen Pir Panjal Regiment.
9. Al-Umar-Mujahideen.
10. Jammu and Kashmir Islamic Front.
11. United Liberation Front of Assam (ULFA).
12. National Democratic Front of Bodoland (NDFB).
13. People's Liberation Army (PLA).
14. United National Liberation Front (UNLF).
15. People's Revolutionary Party of Kangleipak (PREPAK).
16. Kangleipak Communist Party (KCP).
17. Kanglei Yaol Kanba Lup (KYKL).
18. Manipur People's Liberation Front (MPLF).
19. All Tripura Tiger Force.
20. National Liberation Front of Tripura.
21. Liberation Tigers of Tamil Eelam (LTTE).
22. Students Islamic Movement of India.
23. Deendar Anjuman.
Criminology and Penology [Appendix I
24. Communist Party of India (Marxist-Leninist)—People's War, All Its

Formations and Front Organisations.
25. Maoist Communist Centre (MCC), All its Formations and Front
Organisations.
26. A1 Badr.
27. Jamiat-Ul-Mujahidden.
28. Al-Qaida.
29. Dukhtaran-E-Millat (DEM).
30. Tamil Nadu Liberation Army (TNLA).
31. Tamil National Retrieval Troops (TNRT).
32. Akhil Bharat Nepali Ekta Samaj (ABNES).]
Appendix II
The Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act 1974 ,
(Act No. 52 of 1974)
[13th December, 1974]
An Act to provide for preventive detention in certain cases for the purposes of
conservation and augmentation of foreign exchange and prevention of smuggling activities
and for matters connected therewith.
WHEREAS violations of foreign exchange regulations and smuggling
activities are having an increasingly deleterious effect on the national economy and
thereby a serious adverse effect on the security of the State.
AND WHEREAS having regard to the persons by whom and the manner in
which such activities or violations are organised and carried on, and having regard
to the fact that in certain areas which are highly vulnerable to smuggling, smuggling
activities of a considerable magnitude are clandestinely organised and carried on, it
is necessary for the effective prevention of such activities and violations to provide
for detention of persons concerned in any manner therewith,
Be it enacted by Parliament in the Twenty-fifth Year of the Republic of India
as follows :—
1. Short title, extent and commencement.—(1) This Act may be called the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974.
(3) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) "appropriate Government" means, as respects a detention order made by
the Central Government or by an officer of the Central Government or a
person detained under such order, the Central Government, and as
respects a detention order made by a State Government or by an officer
of a State Government or a person detained under such order, the State
Government;
(b) "detention order" means an order made under Section 3;
(c) "foreigner" has the same meaning as in the Foreigners Act, 1946 (31
of 1946);
(d) "Indian customs waters" has the same meaning as in clause (28) of
Section 2 of the Customs Act, 1962 (52 of 1962);

(e) "smuggling" has the same meaning as in clause (39) of Section 2 of
the Customs Act, 1962, and all its grammatical variations and cognate
expressions shall be construed accordingly;
(f) "State Government", in relation to a Union territory, means the
Administrator thereof;
(g) any reference in this Act to a law which is not in force in the State of
Jammu and Kashmir shall, in relation to that State, be construed as a
reference to the corresponding law, if any, in force in that State.
3. Power to make orders detaining certain persons.—(1) The Central
Government or the State Government or any officer of the Central Government, not
below the rank of a Joint Secretary to that Government, specially empowered for the
purposes of this section by that Government, or any officer of die State Government,
not below the rank of a Secretary to that Government, specially empowered for the
purposes of this section by that Government, may, if satisfied, with respect to any
person (including a foreigner), that, with a view to preventing him from acting in any
manner prejudicial to the conservation or augmentation of foreign exchange or with
a view to preventing him from—
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging in transporting or
concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the
smuggling of goods, it is necessary so to do, make an order directing
that such person be detained :
Provided that no order of detention shall be made on any of the grounds
specified in this sub-section on which an order of detention may be made under
Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 or under Section 3 of the Jammu and Kashmir Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988. (J. &
K. Ordinance 1 of 1988).
(2) When any order of detention is made by a State Government or by an
officer empowered by a State Government, the State Government shall, within ten
days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order of the grounds
on which the order has been made shall be made as soon as may be after the
detention, but ordinarily not later than five days, and in exceptional circumstances
and for reasons to be recorded in writing, not later than fifteen days, from the date of
detention.
4. Execution of detention orders.—A detention order may be executed at any
place in India in the manner provided for the execution of warrants of arrest under
the Code of Criminal Procedure, 1973 (2 of 1974).
5. Power to regulate place and conditions of detention.—Every person in
respect of whom a detention order has been made shall be liable—
(a) to be detained in such place and under such conditions including
conditions as to maintenance, interviews or communication with
others, discipline and punishment for breaches of discipline, as the
appropriate Government may, by general or special order, specify; and
(b) to be removed from one place of detention to another place of detention,
whether within the same State or in another State by order of the
appropriate Government :
APPENDIX II) COFEPOSA Act, 1974 707

Provided that no order shall be made by a State Government under clause
(b) for the removal of a person from one State to another State except with the
consent of the Government of that other State.
5-A. Grounds of detention severable.—Where a person has been detained in
pursuance of an order of detention under sub-section (1) of Section
3 which has been made on two or more grounds, such order of detention shall be
deemed to have been made separately on each of such grounds and accordingly—
(a) such order shall not be deemed to be invalid or inoperative merely
because one or some of the grounds is or are—
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that the Government or officer
making such order would have been satisfied as provided in sub-section
(1) of Section 3 with reference to the remaining ground or grounds and
made the order of detention;
(b) the Government or officer making the order of detention shall be
deemed to have made the order of detention under the said sub-section
(1) after being satisfied as provided in that sub-section with reference to
the remaining ground or grounds.
6. Detention order not to be invalid or inoperative on certain grounds.—No
detention order shall be invalid or inoperative merely by reason—
(a) that the person to be detained thereunder is outside the limits of the
territorial jurisdiction of the Government or the officer making the order
of detention, or
(b) that the place of detention of such person is outside the said limits.
7.Powers in relation to absconding persons.—(1) If the appropriate
Government has reason to believe that a person in respect of whom a detention order
has been made has absconded or is concealing himself so that the order cannot be
executed, the Government may—
(a) make a report in writing of the fact to a Metropolitan Magistrate or a
Magistrate of the first class having jurisdiction in the place where the
said person ordinarily resides; and thereupon the provisions of Sections
82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974),
shall apply in respect of the said person and his property as if the order
directing that he be detained were a warrant
issued by the Magistrate;

(b) by order notified in the Official Gazette direct the said person to appear
before such officer, at such place and within such period as may be
specified in the order; and if the said person fails to comply with such
direction, he shall, unless he proves that it was not possible for him to
comply therewith and that he had, within the period specified in the
order, informed the officer mentioned in the order of the reason which
rendered compliance therewith impossible and of his whereabouts, be
punishable with imprisonment for a term which may extend to one year
or with fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be
cognizable.
8. Advisory Board.—For the purposes of sub-clause (a) of clause (4), and sub-
clause (c) of clause (7) of Article 22 of the Constitution,—
(a) the Central Government and each State Government shall, wherever
necessary, constitute one or more Advisory Boards each of which shall
consist of a Chairman and two other persons possessing the
qualifications specified in sub-clause (a) of clause (4) of Article 22 of
the Constitution;
(b) save as otherwise provided in Section 9, the appropriate Government
shall, within five weeks from the date of detention of a person under a
detention order make a reference in respect thereof to the Advisory
Board constituted under clause (a) to enable the Advisory Board to
make the report under sub-clause (a) of clause (4) of Article
22 of the Constitution :—
(c) the Advisory Board to which a reference is made under clause (b)
shall after considering the reference and the materials placed before it
and after calling for such further information as it may deem necessary
from the appropriate Government or from any person called for the
purpose through the appropriate Government, from the person
concerned, and if, in any particular case, it considers it essential so to do
or if the person concerned desires to be heard in person, after hearing
him in person, prepare its report specifying in a separate paragraph
thereof its opinion as to whether or not there is sufficient cause for the
detention of the person concerned and submit the same within eleven
weeks from the date of detention of the person concerned;
(d) when there is a difference of opinion among the members forming the
Advisory Board the opinion of the majority of such members shall be
deemed to be the opinion of the Board;
(e) a person against whom an order of detention has been made under
this Act shall not be entitled to appear by any legal practitioner in any
matter connected with the reference to the Advisory Board, and the
proceedings of the Advisory Board and its report, excepting that part of
the report in which the opinion of the Advisory Board is specified, shall
be confidential;

(f) in every case where the Advisory Board has reported that there is in its
opinion sufficient cause for the detention of a person, the appropriate
Government may confirm the detention order and continue the detention
of the person concerned for such period as it thinks fit and in every case
where the Advisory Board has reported that there is in its opinion no
sufficient cause for the detention of the person concerned, the
appropriate Government shall revoke the detention order and cause the
person to be released forthwith.
9. Cases in which and circumstances under which persons may be detained for
period longer than three months without obtaining the opinion
of Advisory Board.—(1) Notwithstanding anything contained in this Act, any person
(including a foreigner) in respect of whom an order of detention is made under this
Act at any time before the 1[31st of July, 1996] may be detained without obtaining,
in accordance with the provisions of sub-clause (a) of clause
(4) of Article 22 of the Constitution, the opinion of an Advisory Board for a period
longer than three months but not exceeding six months from the date of his
detention, where the order of detention has been made against such person with a
view to preventing him from smuggling goods or abetting the smuggling of goods or
engaging in transporting or concealing or keeping smuggled goods and the Central
Government or any Officer of the Central Government, not below the rank of an
Additional Secretary to that Government, specially empowered for the purpose of
this section by that Government, is satisfied that such person,—
(a) smuggles or is likely to smuggle goods into, out of or through any
area highly vulnerable to smuggling; or
(b) abets or is likely to abet the smuggling of goods into, out of or
through any area highly vulnerable to smuggling; or
(c) engages or is likely to engage in transporting or concealing or
keeping smuggled goods in any area highly vulnerable to smuggling,
and makes a declaration to that effect within five weeks of the detention of such
person.
Explanation 1.—In this sub-section, "area highly vulnerable to smuggling"
means,-—
(i) the Indian customs waters, contiguous to the States of Goa, Gujarat,
Karnataka, Kerala, Maharashtra, Tamil Nadu and the Union territories of
Daman and Diu and Pondicherry;
(ii) the inland area fifty kilometres in width from the coast of India falling
within the territories of the States of Goa, Gujarat, Karnataka, Kerala,
Maharashtra, Tamil Nadu and the Union territories of Daman and Diu
and Pondicherry;
(iii) the inland area fifty kilometres in width from the India-Pakistan border in
the State of Gujarat, Jammu and Kashmir, Punjab and Rajasthan;
(iv) the customs air port of Delhi; and
(v) such further or other Indian customs waters, or inland area not exceeding
one hundred kilometres in width from any other coast or border of
India, or such other customs station, as the Central Government may,
having regard to the vulnerability of such waters, area or customs
station, as the case may be, to smuggling, by notification in the Official
Gazette, specify in this behalf.
Explanation 2.—For the purposes of Explanation 1, "customs airport" and
"customs station" shall have the same meaning as in clauses (10) and (13) of Section
2 of the Customs Act, 1962 (52 of 1962), respectively.
1. Substituted by Act No. 52 of 1993, S. 2 (w.e.f. 25-6-1993).
(2) In the case of any person detained under a detention order to which the
provisions of sub-section (1) apply, Section 8 shall have effect subject to the
following modifications, namely—
(i) in clause (b), for the words "shall, within five weeks", the words
J
"shall, within four months and two weeks" shall be substituted;
(ii) in clause (c),—
(1) for the words "the detention of the person concerned", the
words "the continued detention of the person concerned" shall be
substituted;
(2) for the words "eleven weeks", the words "five months and three
weeks" shall be substituted;
(iii) in clause (f), for the words "for the detention", at both the places where
they occur, the words "for the continued detention" shall be substituted.
10. Maximum period of detention.—The maximum period for which any
person may be detained in pursuance of any detention order to which the provisions
of Section 9 do not apply and which has been confirmed under clause (f) of Section 8
shall be a period of one year from the date of detention or the specified period,
whichever period expires later and the maximum period for which any person may
be detained in pursuance of any detention order to which the provisions of Section 9
apply and which has been confirmed under clause (f) of Section 8 read with sub-
section (2) of Section 9 shall be a period of two years from the date of detention or
the specified period, whichever period expires later :
Provided that nothing contained in this section shall affect the power of the
appropriate Government in neither case to revoke or modify the detention order at
any earlier time.
Explanation.—In this section and in Section 10-A, "specified period" means the
period during which the Proclamation of Emergency issued under clause (1) of
Article 352 of the Constitution on the 3rd day of December, 1971 and the
Proclamation of Emergency issued under that clause on the 25th day of June, 1975,
are both in operation.
10-A. Extension of period of detention.—(1) Notwithstanding anything
contained in any other provision of this Act, the detention of every person detained
under a detention order which has been confirmed under clause (f) of Section 8
before the commencement of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities (Amendment) Act, 1976, and which is in force immediately
before such commencement shall, unless his detention has been continued by the
appropriate Government under the said clause for a
period shorter than one year from the date of his detention, continue until the expiry
of a period of one year from the date of his detention under such order or until the
expiry of the specified period, whichever period expires later :
Provided that nothing contained in this sub-section shall affect the power of the
appropriate Government to revoke or modify such detention order at any earlier time.
(2) Notwithstanding anything contained in any other provision of this Act, the
detention of every person detained under a detention order which has been confirmed
under clause (f) of Section 8 read with sub-section (2) of Section 9 before the
commencement of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Amendment) Act, 1976, and which is in force immediately
before such commencement, shall, unless his detention has been continued by the
appropriate Government under the said clause (f) read with the said sub-section (2),
for a period shorter than two years from the date of his detention, continue until the
expiry of a period of two years from the date of his detention under such order or
until the expiry of the specified period, whichever period expires later :
Provided that nothing contained in this sub-section shall affect the power of the
appropriate Government to revoke or modify such detention order at any earlier time.
11. Revocation of detention orders.—(1) Without prejudice to provisions of
Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may at
any time, be revoked or modified—
(a) notwithstanding that the order has been made by an officer of a State
Government, by that State Government or by the Central Government;
(b) notwithstanding that the order has been made by an officer of the
Central Government or by a State Government, by the Central
Government.
(2) The revocation of a detention order shall not bar the making of another
detention order under Section 3 against the same person.
12. Temporary release of persons detained.—(1) The Central Government
may, at any time, direct that any person detained in pursuance of a detention order
made by that Government or an officer subordinate to that Government or by a State
Government or by an officer subordinate to a State Government, may be released for
any specified period either without conditions or upon such conditions specified in
the direction as that person accepts, and may, at any time, cancel his release.
(1-A) A State Government may, at any time, direct that any person detained in
pursuance of a detention order made by that Government or by an officer subordinate
to that Government may be released for any specified period either without
conditions or upon such conditions specified in the direction as that person accepts,
and may, at any time, cancel his release.
(2) In directing the release of any person under sub-section (1) or sub-section
(1-A), the Government directing the release may require him to enter into a bond
with sureties for the due observance of the conditions specified in the direction.
(3) Any person released under sub-section (1) or sub-section (1-A) shall
surrender himself at the time and place, and to the authority, specified in the order
directing his release or cancelling his release, as the case may be.
(4) If any person fails without sufficient cause to surrender himself in the
manner specified in sub-section (3), he shall be punishable with imprisonment for a
term which may extend to two years, or with fine, or with both.
(5) If any person released under sub-section (1) or sub-section (1-A) fails to
fulfil any of the conditions imposed upon him under the said sub-section or in the
bond entered into by him, the bond shall be declared to be forfeited and any person
bound thereby shall be liable to pay the penalty thereof.
(6) Notwithstanding anything contained in any other law and save as
otherwise provided in this section, no person against whom a detention order made
under this Act is in force shall be released whether on bail or bail bond or otherwise.
12-A. Special provisions for dealing with emergency.— (1)
Notwithstanding anything contained in this Act or any rules of natural justice, the
provisions of this section shall have effect during the period of operation of the
Proclamation of Emergency issued under clause (1) of Article 352 of the
Constitution on the 3rd day of December, 1971, or the Proclamation of Emergency
issued under that clause on the 25th day of June, 1975, or a period of twenty four
months from the 25th day of June, 1975, whichever period is the shortest.
(2) When making an order of detention under this Act against any person after
the commencement of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Amendment) Act, 1975, the Central Government or the State
Government or, as the case may be, the officer making the order of detention shall
consider whether the detention of such person under this Act is necessary for dealing
effectively with the emergency in respect of which the Proclamations referred to in

sub-section (1) have been issued (hereafter in this section referred to as the
emergency) and if, on such consideration, the Central Government or the State
Government or, as the case may be, the officer is satisfied that it is necessary to
detain such person for effectively dealing with the emergency, that Government or
officer may make a declaration to that effect and communicate a copy of the
declaration to the person concerned :
Provided that where such declaration is made by an officer, it shall be reviewed
by the appropriate Government within fifteen days from the date of making of the
declaration and such declaration shall cease to have effect unless it is confirmed by
that Government, after such review, within the said period of fifteen days.
(3) The question whether the detention of any person in respect of whom a
declaration has been made under sub-section (2) continues to be necessary for
effectively dealing with the emergency shall be reconsidered by the appropriate
Government within four months from the date of such declaration and thereafter at
intervals not exceeding four months, and if, on such reconsideration, it appears to the
appropriate Government that the detention of the person is no longer necessary for
effectively dealing with the emergency, the Government may revoke the declaration.
(4) In making any consideration, review or reconsideration under sub-
section (2) or (3), the appropriate Government or officer may, if such Government or
officer considers it to be against the public interest to do otherwise, act on the basis
of the information and materials in its or his possession without disclosing the facts
or giving an opportunity of making a representation to the person concerned.
(5) It shall not be necessary to disclose to any person detained under a
detention order to which the provisions of sub-section (2) apply, the grounds on
which the order has been made during the period the declaration made in respect of
such person under that sub-section is in force, and, accordingly, such period shall not
be taken into account for the purposes of sub-section (3) of Section 3.
(6) In the case of every person detained under a detention order to which the
provisions of sub-section (2) apply, being a person in respect of whom a declaration
has been made thereunder, the period during which such declaration is in force shall
not be taken into account for the purpose of computing—
(i) the periods specified in clauses (b) and (c) of Section 8;
(ii) the periods of "one year" and "five weeks" specified in sub-section
(1) , the period of "one year" specified in sub-section (2) (i), and the
period of "six months" specified in sub-section (3), of Section 9.
13. Protection of action taken in good faith.—No suit or other legal
proceedings shall lie against the Central Government or a State Government, and no
suit, prosecution or other legal proceedings shall lie against any person, for anything
in good faith done or intended to be done in pursuance of this Act.
14. Repeal.—The Maintenance of Internal Security (Amendment) Ordinance,
1974 (11 of 1974), shall, on the commencement of this Act, stand repealed and
accordingly the amendments made in the Maintenance of Internal Security Act, 1971
(26 of 1971), by the said Ordinance shall, on such commencement, cease to have
effect.
LIST OF AMENDING ACTS
1. The Conservation of Foreign Exchange and Prevention of Smuggling
Activities (Amendment) Act, 1975 (35 of 1975) (c.f.o. 1-7-1975).

5. The Conservation c Foreign Exchange and Prevention of Smuggling
6. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 1988 (46 of 1988) (c.f.o. 4-7-1988).
Appendix III
The Immoral Traffic (Prevention) Act, 1956

[Act No. 104 of 1956]
An Act to provide in pursuance of the International Convention signed at New York on

the 9th day of May, 1950, for the prevention of immoral traffic
Be it enacted by Parliament in the Seventh Year of the Republic of India as
follows :—
The Act has been drastically amended by Act No. 44 of 1986. The Provisions
of the Amendment Act 44 of 1986 came into force w.e.f.' 26-1-1987, vide Notification
No. GSR 50(E), dated 21-1-1987. The following Statement of Object and Reasons
was appended to the Bill No. XXX of 1986.
Statement of Objects and Reasons.—The Suppression of Immoral Traffic in
Women and Girls Act, 1956 was enacted in pursuance of the International
Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others signed at New York on 9th May, 1950. It was amended in
1978 to make good some inadequacies in the implementation of the Act in the light
of experience gained in its implementation. Despite the amendments to the Act in
1978, it has been felt that enforcement of the Act has not been effective enough to
deal with the problem of immoral traffic in all its dimensions. Suggestions have been
made to Government by voluntary organisations working for women, advocacy
groups and various individuals urging the enlargement of the scope of the Act, to
make penal provisi s more stringent and to provide for certain minimum standards for
correctional treatment and rehabilitation of the victims. In view of the
aforementioned suggestions, it is proposed to widen the scope of the Act to cover all
persons, whether male or female who are exploited sexually for commercial purposes
and to make further amendments in the Act. The main amendments proposed are as
follows :—
(a) it is proposed to change the name of the Act to "The Immoral Traffic
(Prevention) Act" in view of the widening of the scope of the Act to
cover all persons, whether male or female, who are exploited sexually
for commercial purposes;
(b) it is proposed to make the offences under the Act involving children
and minors more stringent by enhancing the period of imprisonment
when offences are committed against children and minors;
(c) trafficking police officers appointed under the Act will be
empowered to investigate offence having inter-State ramifications;
(d) licensing authorities are being empowered to cancel licences of hotels
where children or minors are detected to be used for purposes of
prostitution;
Appendix III] The Immoral Traffic (Prevention) Act, 1956 715
(e) in cases of seduction in custody, the punishment is sought to be

enhanced to that laid down for rape in the Indian Penal Code;
(f) Sections 10 and 12 of the Act, providing for the facility of release of
convicted persons on probation of good conduct or after due admonition
and on security from habitual offenders for good behaviour are proposed
to be omitted from the Act;
(g) provision is being made for medical examination of all persons
removed from a brothel after a search has been carried out under Section
15;
(h) it is proposed to provide that women or girls removed in pursuance of a
search made under Section 15 shall be interrogated only by women
police officers and where no women police officers are available, they
shall be interrogated only in the presence of a woman social worker;
(i) enabling provisions are being added in the Act to empower the
Central Government to set up special courts with jurisdiction to try
offences which have inter-State ramifications.
2. The other amendments proposed are minor or consequential in nature.
1. Short title, extent and commencement.—(1) This Act may be called The
Immoral Traffic (Prevention), Act, 1956.
(3) This section shall come into force at once, and the remaining provisions of
this Act shall come into force on such date as the Central Government may, by
notification in the Official Gazette appoint.
(a) "brothel" includes any house, room, conveyance, or place or any
portion of any house, room, conveyance, or place, which is used for
purposes of sexual exploitation or abuse for the gain of another person or
for the mutual gain of two or more prostitutes;
(aa) "child" means a person who has not completed the age of sixteen years;
(b) "corrective institution" means an institution, by whatever name called
(being an institution established or licensed as such under Section 21), in
which persons, who are in need of correction, may be detained under this
Act, and includes a shelter where undertrials may be kept in pursuance of
this Act.
(c) "magistrate" means a magistrate specified in the second column of
the Schedule as being competent to exercise the powers conferred by the
section in which the expression occurs and which is specified in the first
column of the Schedule;
(ca) 'major' means a person who has completed the age of 18 years.
(cb) "minor" means a person who has completed the age of sixteen years but
has not completed the age of eighteen years;
(d) "prescribed" means prescribed by rules made under this Act;
(e) * * * *
(f) "prostitution" means the sexual exploitation or abuse of persons for
commercial purposes and the expression "prostitute" shall be
(g) "protective home" means an institution, by whatever name called
(being an institution established or licensed as such under Section 21), in
which persons, who are in need of care and protection, may be kept
under this Act, and where appropriate technically qualified persons,
equipment and other facilities have been provided but does not
include—
(i) a shelter where undertrials may be kept in pursuance of this
construed accordingly;
Act, or
(ii) a corrective institution;
(h) "public place" means any place intended for use by, or accessible to, the
public and includes any public conveyance;
(i) "special police officer" means a police officer appointed by or on
behalf of the State Government to be incharge of police duties within a
specified area for the purpose of this Act;
(j) "trafficking police officer" means a police officer appointed by the Central
Government under sub-section (4) of Section 13.
2-A. Rule of construction regarding enactments not extending to Jammu and
Kashmir.—Any reference in this Act to a law which is not in force in the State of
Jammu and Kashmir shall, in relation to that State, be construed as a reference to the
corresponding law, if any, in force in that State.
3. Punishment for keeping a brothel or allowing premises to be used as a
brothel.—(1) Any person who keeps or manages, or acts or assists in the keeping or
management of, a brothel, shall be punishable on first conviction with rigorous
imprisonment for a term of not loss than one year and not more than three years and
also with fine which may extend to two thousand rupees and in the event of a second
or subsequent conviction, with rigorous imprisonment for a term of not less than two
years and not more than five years and also with fine which may extend to two
thousand rupees.
(2) Any person who—
(a) being the tenant, lessee, occupier or person in charge of any
premises, uses, or knowingly allows any other person to use, such
premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of
such owner, lessor or landlord, lets the same or any part thereof with the knowledge
that the same or any part thereof is intended to be used as a brothel, or is wilfully a
party to the use of such premises or any part thereof as a brothel, shall be punishable
on first conviction with imprisonment for a term which may extend to two years and
with fine which may extend to two thousand rupees and in the event of a second or
subsequent conviction, with rigorous imprisonment for a term which may extend to
five years and also with fine.
(2-A) For the purposes of sub-section (2), it shall be presumed, until the
contrary is proved that any person referred to in clause (a) or clause (b) of that sub-
section, is knowingly allowing the premises or any part thereof to be used as a
brothel or as the case may be, has knowledge that the premises or any part thereof are
being used as a brothel, if,—
(a) a report is published in a newspaper having circulation in the area
in which such person resides to the effect that the premises or any part
thereof have been found to be used for prostitution as a result of a search
made under this Act; or
(b) a copy of the list of all things found during the search referred to in
clause (a) is given to such person.
(3) Notwitnstanding anything contained in any other law for the time being in
force, on conviction of any person referred to in clause (a) or clause (b) of sub-
section (2) of any offence under that sub-section in respect of any premises or any
part thereof, any lease or agreement under which such premises have been leased out
or are held or occupied at the time of the commission of the offence, shall become
void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution. —(1) Any
person over the age of eighteen years who knowingly lives, wholly or in part, on the
earnings of the prostitution of any other person shall be punishable with

imprisonment for a term which may extend to two years, or with fine which may
extend to one thousand rupees, or with both and where such earnings relate to the
prostitution of a child or a minor shall be punishable with imprisonment for a term of
not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved—
(a) to be living with, or to be habitually in the company of, a prostitute;
or
(b) to have exercised control, direction or influence over the movements of a
prostitute in such a manner as to show that such person is aiding,
abetting or compelling his prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute,
it shall be presumed, until the contrary is proved, that such person is knowingly
living on the earnings of prostitution of another person within the meaning of sub-
section (1).
5. Procuring, inducing or taking person for the sake of prostitution.—(1)
Any person who—
(a) procures or attempts to procure a person whether with or without
his consent, for the purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he may
for the purpose of prostitution become the inmate of, or frequent, a
brothel;
(c) takes or attempts to take a person or causes a person to be taken,
from one place to another with a view to his carrying on, or being
brought up to carry on prostitution; or
(d) causes or induces a person to carry on prostitution :
shall be punishable on conviction with rigorous imprisonment for a term of not less
than three years and not more than seven years and also with fine which may extend
to two thousand rupees, and if any offence under this sub-section is committed
against the will of any person, the punishment of imprisonment for a term of seven
years shall extend to imprisonment for a term of fourteen
years :
Provided that if the person in respect of whom an offence committed under
this sub-section,—
(i) is a child, the punishment provided under this sub-section shall
extend to rigorous imprisonment for a term of not less than seven years
but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to
rigorous imprisonment for a term of not less than seven years and not
more than fourteen years;
(2 ) * * * *
(3) An offence under this section shall be triable—
(a) in the place from which a person is procured, induced to go, taken
or caused to be taken or from which an attempt to procure or take such
person is made; or
(b) in the place to which he may have gone as a result on the
inducement or to which he is taken or caused to be taken or an attempt
to take him is made.
6. Detaining a person in premises where prostitution is carried on.—(1) Any
person who detains any other person, whether with or without his consent.
(a) in an))' brothel, or
(b) in or upon any premises with intent that such person may have
sexual intercourse with a person who is not the spouse of such person,
shall be punishable on conviction, with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine :
Provided that the court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than seven
years.
(2) Where any person is found with a child in a brothel, it shall be presumed,
unless the contrary is proved, that he has committed an offence under sub-section (1).
(2-A) Where a child or minor found in a brothel, is, on medical examination,
detected to have been sexually abused, it shall be presumed unless the contrary is
proved, that the child or minor has been detained for purposes of prostitution or, as
the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detain a woman or girl in a brothel or in or
upon any premises for the purpose of sexual intercourse with a man other than her
lawful husband, if such person, with intent to compel or induce her to remain
there,—
(a) withholds from her any jewellery, wearing apparel, money or other
property belonging to her, or
(b) threatens her with legal proceedings if she takes away with her any
jewellery, wearing apparel, money or other property lent or supplied to
her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal
proceeding shall lie against such woman or girl at the instance of the person by
whom she has been detained, for the recovery of any jewellery, wearing apparel or
other property alleged to have been lent or supplied to or for such woman or girl or
to have been pledged by such woman or girl or for the recovery of any money
alleged to be payable by such woman or girl.
7. Prostitution in or in the vicinity of public places.—(1) Any person, who
carries on prostitution and the person with whom such prostitution is carried on, in
any premises—
(a) which are within the area or areas, notified under sub-section (3), or,
(b) which are within a distance of two hundred metres of any place of
public religious worship, educational institution, hostel, hospital, nursing home or
such other public place of any kind as may be notified in this behalf by the
Commissioner of Police or Magistrate in the manner prescribed, shall be punishable
with imprisonment for a term which may extend to three months.
(1-A) Where an offence committed under sub-section (1) is in respect of a
child or minor, the person committing the offence shall be punishable with
imprisonment of either description for a term which shall not be less than seven years
but which may be for life or for a term which may extend to ten years and shall also
be liable to fine :
years.
(2) Any person who—
(a) being the keeper of any public place knowingly permits prostitutes
for purposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises
referred to in sub-section (1) knowingly permits the same or any part
thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in
sub-section (1), or the agent of such owner, lessor or landlord, lets the
same or any part thereof with the knowledge that the same or any part
thereof may be used for prostitution, or is wilfully a party to such use,
shall be punishable on first conviction with imprisonment for a term which may
extend to three months, or with fine which may extend to two hundred rupees, or
with both, and in the event of a second or subsequent conviction with imprisonment
for a term which may extend to six months and also with fine which may extend to
two hundred rupees, and if the public place or premises happen to be a hotel, the
licence for carrying on the business of such hotel under any law for the time being in
force shall also be liable to be suspended for a period of not less than three months
but which may extend to one year :
Provided that if an offence committed under this sub-section is in respect of a
child or minor in a hotel, such licence shall also be liable to be cancelled.
Explanation.—For the purposes of this sub-section, "hotel" shall have the
meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of
1980).
(3) The State Government may, having regard to the kinds of persons
frequenting any area or areas in the State, the nature and the density of population
therein and other relevant considerations, by notification in the official Gazette, direct
that prostitution shall not be carried on in such area or areas as may be specified in
the notification.
(4) Where a notification is issued under sub-section (3) in respect of any area
or areas, the State Government shall define the limits of such area or areas in the
notification with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date earlier
than the expiry of a period of ninety days after the date on which it is issued.
8. Seducing or soliciting for purpose of prostitution.—Whoever, in any public
place or within sight of, and in such manner as to be seen or heard from any public
place, whether from within any building or house or not—
(a) by words, gestures, wilful exposure of his person (whether by sitting
by a window or on the balcony of a building or house or in any other
720
way), or otherwise tempts or endeavours to tempt, or attracts or

endeavours to attract the attention of, any person for the purpose of
prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to cause
obstruction or annoyance to persons residing nearby or passing by such
public place or to offend against public decency, for the purpose of
prostitution,
shall be punishable on first conviction with imprisonment for a term which may
extend to six months, or with fine which may extend to five hundred rupees, or with
both, and in the event of a second or subsequent conviction, with imprisonment for a
term which may extend to one year, and also with fine which may extend to five
hundred rupees :
Provided that where an offence under this section is committed by a man, he
shall be punishable with imprisonment for a period of not less than seven days but
which may extend to three months.
9. Seduction of a person in custody.—Any person who having the custody,
charge or care of any of, or a position of authority over any person cause or aids or
abets the seduction for prostitution of that person shall be punishable on conviction
with imprisonment of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to ten years and shall
also be liable to fine :
years.
(2) * * * *
10. Release on probation of good conduct or after due admonition.
[Omitted].
10-A. Detention in a corrective institution.—Where—
(a) a female offender is found guilty of an offence under Section 7 or
Section 8; and
(b) the character, state of health and mental condition of the offender and the
other circumstances of the case are such that it is expedient that she should be
subjected to detention for such term and such instruction and discipline as are
conducive to her correction, it shall be lawful for the court to pass, in lieu of a
sentence of imprisonment, an order for detention in corrective institution for such
term, not being less than two years and not being more than five years, as the court
thinks fit :
Provided that before passing such an order—
(i) the court shall give an opportunity to the offender to be heard and
shall also consider any representation which the offender may make to
the court as to the suitability of the case for treatment in such an
institution, as also the report of the Probation Officer appointed under
the Probation of Offenders Act, 1958 (20 of 1958); and
(ii) the court shall record that it is satisfied that the character, state of health
and mental condition of the offender and the other circumstances of the
case are that the offender is likely to benefit by such instruction and
discipline as aforesaid.
(2) Subject to the provisions of sub-section (3), the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), relating to appeal, reference and revision, and
of the Limitation Act, 1963 (36 of 1963), as to the period within which an appeal
shall be filed, shall apply in relation to an order of detention under sub-section (1) as
if the order had been a sentence of imprisonment for the same period as the period
for which the detention was ordered.
(3) Subject to such rules as may be made in this behalf, the State Government
or authority authorised in this behalf may, at any time after the expiration of six
months from the date of an order for detention in a corrective institution, if it is
satisfied that there is a reasonable probability that the offender will lead a useful and
industrious life, discharge her from such an institution, without condition or with
such conditions as may be considered fit, and grant her a written licence in such form
as may be prescribed.
(4) The conditions on which an offender is discharged under sub-section
(3) , may include requirements relating to residence of the offender and
supervision over the offender's activities and movements.
11. Notification of address of previously convicted offenders.—(1) When any
person having been convicted—
(a) by a court in India of an offence punishable under this Act or
punishable under Section 363, Section 365, Section 366, Section 366-A,
Section 366-B, Section 367, Section 368, Section 370, Section 371,
Section 372 or Section 373 of the Indian Penal Code (45 of 1860),
imprisonment for a term of two years or upwards; or
(b) by a court or tribunal in any other country of an offence which
would, if committed in India, have been punishable under this Act or
under any of the aforesaid sections with imprisonment for a like term,
is within a period of five years after release from prison, again convicted of any
offence punishable under this Act or under any of those sections with imprisonment
for a term of two years or upwards by a court, such court may
if it thinks fit, at the time of passing the sentence of imprisonment on such person,
also order that his residence, and any change of, or absence from, such residence,
after release be notified according to rules made under Section 23 for a period not
exceeding five years from the date of expiration of that sentence.
(2) If such conviction is set aside on appeal or otherwise, such order shall
become void.
(3) An order under this section may also be made by an Appellate Court or by
the High Court when exercising its powers of revision.
(4) Any person charged with a breach of any rule referred to in sub-section (1)
may be tried by a magistrate of competent jurisdiction in the district in which the
place last notified as his residence is situated.
12. Security for good behaviour from habitual offenders. [Omitted],
13. Special police officer and advisory body.—(1) There shall be for each
area to be specified by the State Government in this behalf a special police officer
appointed by or on behalf of that Government for dealing with offences under this
Act in that area.
(2) The special police officer shall not be below the rank of an Inspector of
Police.
(2-A) The District Magistrate may, if he considers it necessary or expedient so
to do, confer upon any retired police or military officer all or any of the powers
conferred by or under this Act on a special police officer, with respect to particular
cases or classes of cases or to cases generally.
Provided that no such power shall be conferred on—
(a) a retired police officer unless such officer, at the time of his
retirement, was holding a post not below the rank of an inspector;
(b) a retired military officer unless such officer at the time of his retirement
was 1 holding a post not below the rank of a commissioned officer.
(3) For the efficient discharge of his functions in relation to offences under
this Act—
(a) the special police officer of an area shall be assisted by such number
of subordinate police officers (including women police officer wherever
practicable) as the State Government may think fit; and
(b) the State Government may associate with the special police officer a non-
official advisory body consisting of not more than five leading social
welfare workers of that area (including women social welfare workers
wherever practicable) to advise him on questions of general importance
regarding the working of this Act.
(4) The Central Government may, for the purpose of investigating any
offence under this Act or under any other law for the time being in force dealing
with sexual exploitation of persons committed in more than one State, appoint such
number of police officers as trafficking police officers and they shall exercise all the
powers and discharge all the functions as are exercisable by special police officers
under this Act with the modification that they shall exercise such powers and
discharge such functions in relation to the whole of India.
14. Offences to be cognizable.—Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this
Act shall be deemed to be a cognizable offence within the meaning of that Code :
Provided that, notwithstanding anything contained in that Code,—
(i) arrest without warrant may be made only by the special police officer
or under his direction or guidance, or subject to his prior approval;
(ii) when the special police officer requires any officer subordinate to him to
arrest without warrant otherwise than in his presence any person for an
offence under this Act, he shall give that subordinate officer an order in
writing, specifying the person to be arrested and the offence for which
the arrest is being made; and the latter officer before arresting the person
shall inform him of the substance of the order and, on being required by
such person, show him the order;
(iii) any police officer not below the rank of sub-inspector specially
authorised by the special police officer may, if he has reason to believe
that on account of delay involved in obtaining the order of the special
police officer, any valuable evidence relating to any offence under this
Act is likely to be destroyed or concealed, or the person who has
committed or is suspected to have committed the offence is likely to
escape, or if the name and address of such a person is unknown or there
is reason to suspect that a false name or address has been given, arrest
the person concerned without such order, but in such a case he shall
report, as soon as may be, to the special police officer the arrest and the
circumstances in which the arrest was made.
15. Search without warrant.—(1) Notwithstanding anything contained in any
other law for the time being in force, whenever the special police officer or the
trafficking police officer, as the case may be, has reasonable grounds for believing
that an offence punishable under this Act has been or is being committed in respect
of a person living in any premises, and that search of the premises with warrant
cannot be made without undue delay, such officer may, after recording the grounds
of his belief, enter and search such premises without a warrant.
(2) Before making a search under sub-section (1), the special police officer or
the trafficking police officer, as the case may be, shall call upon two or more
Appendix 111] The Immoral Traffic (Prevention) Act, 1956 723
respectable inhabitants (at least one of whom shall be a woman) of the locality in
which the place to be searched is situate, to attend and witness the search and may
issue an order in writing to them or any of them so to do :
Provided that the requirement as to the respectable inhabitants being from the
locality in which the place to be searched is situate shall not apply to a woman
required to attend and witness the search.
(3) Any person who, without reasonable cause, refuses or neglects, to attend
and witness a search under this section, when called upon to do so by an order in
writing delivered or tendered to him, shall be deemed to have committed an offence
under Section 187 of the Indian Penal Code (45 of 1860).
(4) The special police officer or the trafficking police officer, as the case may
be, entering any premises under sub-section (1) shall be entitled to remove therefrom
all the persons found therein.
be, after removing the person under sub-section (4) shall forthwith produce him
before the appropriate magistrate.
(5-A) Any person who is produced before a magistrate under sub-section
(5) , shall be examined by a registered medical practitioner for the purposes of
determination of the age of such person, or for the detection of any injuries as a
result of sexual abuse or for the presence of any sexually transmitted disease.
Explanation.—In this sub-section ^'registered medical practitioner" has the
same meaning as in the Indian Medical Council Act, 1956.
be, and other persons taking part in, or attending, and witnessing a search shall not
be liable to any civil or criminal proceedings against them in respect of anything
lawfully done in connection with, or for the purpose of the search.
(6-A) The special police officer or the trafficking police officer, as the case
may be, making a search under this section shall be accompanied by at least two
women police officers, and where any woman or girl removed under sub-section (4)
is required to be interrogated, it shall be done by a woman police officer and if no
woman police officer is available, the interrogation shall be done only in the
presence of a lady member of a recognised welfare institution or organisation.
Explanation.—For the purposes of this sub-section and Section 17-A,
"recognised welfare institution or organisation" means such institution or
organisation as may be recognised in this behalf by the State Government.
(7) The provision of the Code of Criminal Procedure, 1973 (2 of 1974), shall,
so far as may be, apply to any search under this section as they apply to any search
made under the authority of a warrant issued under Section 94 of the said Code.
16. Rescue of person.—(1) Where a magistrate has reason to believe from
information received from the police or any other person authorised by the State
Government in this behalf or otherwise, that any person is living, or is carrying on,
or is being made to carry on, prostitution in a brothel, he may direct a police officer
not below the rank of a sub-inspector to enter such brothel, and to remove therefrom
such person, and produce before him.
(2) The police officer, after removing the person, shall forthwith produce him,
before the magistrate issuing the order.
17. Intermediate custody of person, removed under Section 15 or rescued
under Section 16.—(1) When the special police officer removing a person, under
sub-section (4) of Section 15 or a police officer rescuing a person, under sub-section
(1) of Section 16, is for any reason unable to produce him before the appropriate
magistrate as required by sub-section (5) of Section 15, or before the magistrate

issuing the order under sub-section (2) of Section 16, he shall forthwith produce him
before the nearest magistrate of any class, who shall pass such orders as he deems
proper for his safe custody until he is produced before the appropriate magistrate, or,
as the case may be, the magistrate issuing the order :
Provided that no person shall be—
(i) detained in custody under this sub-section for a period exceeding ten
days from the date of the order under this sub-section; or
(ii) restored to or placed in the custody of a person who may exercise a
harmful influence over him.
(2) Where the person, is produced before the appropriate magistrate under sub-
section (4) of Section 15 or the magistrate under sub-section (2) of Section 16, he
shall, after giving him an opportunity of being heard, cause an inquiry to be made as
to the correctness of the information received under sub-section (1) of Section 16,
the age, character and antecedents of the person and the suitability of his parents,
guardian or husband for taking charge of him and the nature of the influence which
the conditions in his home are likely to have on him if he is sent home, and, for this
purpose, he may direct a probation officer appointed under the Probation of
Offenders Act, 1958 (20 of 1958), to inquire into the above circumstances and into
the personality of the person and the prospects of his rehabilitation.
(3) The magistrate may, while an inquiry is made into a case under sub-section
(2) pass such orders as he deems proper for the safe custody of the person :
Provided that where a person rescued under Section 16 is a child or minor, it
shall be open to the magistrate to place such child or minor in any institution
established or recognised under any Children Act for the time being in force in any
State for the safe custody of children :
Provided further that, no person, shall be kept in custody for this purpose for a
period exceeding three weeks from the date of such an order, and no person shall be
kept in the custody of a person likely to have a harmful influence over him.
(4) Where the magistrate is satisfied, after making an inquiry as required under
sub-section (2),—
(a) that the information received is correct; and
(b) that he is in need of care and protection,
he may, subject to the provisions of sub-section (5), make an order that such person
be detained for such period, being not less than one year and not more than three
years, as may be specified in the order, in a protective home, or in such other custody
as he shall, for reasons to be recorded in writing, consider suitable :
Provided that such custody shall not be that of a person or body of persons of a
religious persuasion different from that of the person and that charge of a protective
home, may be required to enter into a bond which may, where necessary and
feasible, contain undertakings based on directions relating to the proper care,
guardianship, education, training and medical and psychiatric treatment of the person
as well as supervision by a person appointed by the court, which will be in force for
a period not exceeding three years.
(5) In discharging his functions under sub-section (2), a magistrate may
summon a panel of five respectable persons, three of whom, shall, wherever
practicable, be women, to assist him; and may, for this purpose, keep a list of
experienced social welfare workers, particularly women social welfare workers, in
the field of [suppression of]1 immoral traffic in person.
(6) An appeal against an order made under sub-section (4) shall lie to the

Court of Session whose decision on such appeal shall be final.
17-A. Conditions to be observed before placing persons rescued under Section
16 to parents or guardians.—Notwithstanding anything contained in sub-section (2)
of Section 17, the magistrate making an inquiry under Section 17 may, before
passing an order for handing over any person rescued under Section 16 to the
parents, guardian or husband, satisfy himself about the capacity or genuineness of
the parents, guardian or husband to keep such person by causing an investigation to
be made by a recognised welfare institution or organisation.
18. Closure of brothel and eviction of offenders from the premises.— (1)
A magistrate may, on receipt of information from the police or otherwise, that any
house, room, place or any portion thereof within a distance of two hundred metres of
any public place referred to in sub-section (1) of Section 7, is being run or used as a
brothel by any person, or is being used by prostitutes for carrying on their trade,
issue notice on the owner, lessor or landlord of such house, room, place or portion or
the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any
other person in charge of such house, room, place or portion, to show cause within
seven days of the receipt of the notice as to why the same should not be attached for
improper user thereof; and if, after hearing the person concerned, the magistrate is
satisfied that the house, room, place or portion is being used as a brothel or for
carrying on prostitution, then the magistrate may pass orders—
(a) directing eviction of the occupier within seven days of the passing
of the order from the house, room, place or portion;
(b) directing that before letting it out during the period of one year, or
in a case where a child or minor has been found in such house, room,
place or portion during a search under Section 15, during the period of
three years, immediately after the passing of the order, the owner, lessor
or landlord or the agent of the owner, lessor or landlord shall obtain the
previous approval of the magistrate :
Provided that, if the magistrate finds that the owner, lessor or landlord as well
as the agent of the owner, lessor or landlord, was innocent of the improper user of
the house, room, place or portion, he may cause the same to be restored to the owner,
lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that
the house, room, place or portion shall not be leased out, or otherwise given
possession of, to or for the benefit of the person who was allowing the improper user
therein.
(2) A court convicting a person of any offence under Section 3 or Section 7
may pass orders under sub-section (1), without further notice to such person to show
cause as required in that sub-section.
(3) Orders passed by the magistrate or court under sub-section (1) or sub-
section (2) shall not be subject to appeal and shall not be stayed or set aside by the
order of any court, civil or criminal, and the said orders shall cease to have validity
after the expiry of one year, or three years, as the case may be :
Provided that where a conviction under Section 3 or Section 7 is set aside in
appeal on the ground that such house, place or any portion thereof is not being run or
used as a brothel or is not being used by prostitutes for carrying on their trade, any
order passed by the trial Court under sub-section (1) shall also be set aside.
(4) Notwithstanding anything contained in any other law for the time being in
force, when a magistrate passes an order under sub-section (1), or a court passes an
order under sub-section (2), any lease or agreement under which the house, room,
place or portion is occupied at the time shall become void and inoperative.

(5) When an owner, lessor or landlord, or the agent of such owner, lessor or
landlord fails to comply with a direction given under clause (b) of sub-section
(1) he shall be punishable with fine which may extend to five hundred rupees or
when he fails to comply with a direction under the proviso to that sub-section, he
shall be deemed to have committed an offence under clause (b) of sub-section
(2) of Sections 3 or clause (c) of sub-section (2) of Section 7, as the case may be, and
punished accordingly.
19. Application for being kept in a protective home or provided care and
protection by court.—(1) A person who is carrying on, or is being made to carry on,
prostitution, may make an application, to the magistrate within the local limits of
whose jurisdiction he is carrying on, or is being made to carry on, prostitution, for an
order that he may be—
(a) kept in a protective home, or
(b) provided care and protection by the court in the manner specified
in sub-section (3).
(2) The magistrate may, pending inquiry under sub-section (3), direct that the
person be kept in such custody as he may consider proper, having regard to the
circumstances of the case.
(3) If the magistrate, after hearing the applicant and making such inquiry as he
may consider necessary, including an inquiry by a Probation Officer appointed under
the Probation of Offenders Act, 1958 (20 of 1958), into the personality, conditions of
home and prospects of rehabilitation of the applicant, is satisfied that an order should
be made under this section, he shall for reasons to be recorded, make an order that
the applicant be kept,—
(i) in a protective home, or
(ii) in a corrective institution, or
(iii) under the supervision, of a person appointed by the magistrate, for such
period as may be specified in the order.
20. Removal of prostitute from any place.—(1) A magistrate on receiving
information that any person residing in or frequenting any place within the local
limits of his jurisdiction is a prostitute may record the substance of the information
received and issue a notice to such person requiring him to appear before the
magistrate and show cause why he should not be required to remove himself from
the place and be prohibited from re-entering it.
(2) Every notice issued under sub-section (1) shall be accompanied by a copy
of the record aforesaid, and the copy shall be served along with the notice on the
person against whom the notice is issued.
(3) The magistrate shall after the service of the notice referred to in sub-section
(2), proceed to inquire into the truth of the information received, and after giving the
person an opportunity of adducing evidence, take such further evidence, as he thinks
fit, and if upon such inquiry it appears to him that such person is a prostitute and that
it is necessary in the interest of the general public that such person should be
required to remove himself therefrom and be prohibited from re-entering the same,
the magistrate shall by order in writing communicate to the person in the manner
specified therein, require him after a date (to be specified in the order) which shall
not be less than seven days from the date of the order, to remove himself from the
place to such place whether within or without the local limits of his jurisdiction, by
such route or routes and within such time as may be specified in the order and also
prohibit him from re-entering the place without the permission in writing of the
magistrate having jurisdiction over such place.
(4) Whoever—

(a) fails to comply with an order issued under this section, within the
period specified therein, or whilst an order prohibiting him from re-
entering a place without permission is in force, re-enters the place
without such permission, or
(b) knowing that any person has, under this section, been required to
remove himself from the place and has not obtained the requisite
permission to re-enter it, harbours or conceals such person in the place,
shall be punishable with fine which may extend to two hundred rupees and in the
case of a continuing offence with an additional fine which may extend to twenty
rupees for every day after the first during which she or he has persisted in the
offence.
21. Protective homes.—(1) The State Government may in its discretion
establish as many protective homes and corrective institutions under this Act as it
thinks fit and such homes and institutions when established, shall be maintained in
such manner as may be prescribed.
(2) No person or no authority other than the State Government shall, alter the
commencement of this Act, establish or maintain any protective home or corrective
institution except under and in accordance with the conditions of a licence issued
under this section by the State Government.
(3) The State Government may, on application made to it in this behalf by a
person or authority, issue to such person or authority a licence in the prescribed form
for establishing and maintaining or as the case may be, for maintaining a protective
home or corrective institution and a licence so issued may contain such conditions as
the State Government may think fit to impose in accordance with the rules made
under this Act :
Provided that any such condition may require that the management of the
protective home or corrective institution shall, wherever practicable, be entrusted to
women :
Provided further that a person or authority maintaining any protective home at
the commencement of this Act shall be allowed a period of six months from such
commencement to make an application for such licence.
Provided also that a person or authority maintaining any corrective institution
at the commencement of the Suppression of Immoral Traffic in Women and Girls
(Amendment) Act, 1978 (46 of 1978), shall be allowed a period of six months from
such commencement to make an application for such licence.
(4) Before issuing a licence the State Government may require such officer or
authority as it may appoint for the purpose, to make a full and complete investigation
in respect of the application received in this behalf and report to it the result of such
investigation and in making any such investigation the officer or authority shall
follow such procedure as may be prescribed.
(5) A licence, unless sooner revoked, shall remain in force for such period as
may be specified in the licence and may, on application made in this behalf at least
thirty days before the date of its expiration be renewed for a like period.
(6) No licence issued or renewed under this Act shall be transferable.
(7) Where any person or authority to whom a licence has been granted under
this Act or any agent or servant of such person or authority commits a breach of any
of the conditions thereof or any of the provisions of this Act or of any of the rules
made under this Act, or where the State Government is not satisfied with the
condition, management or superintendence of any protective home or corrective
institution the State Government may, without prejudice to any other penalty which

may have been incurred under this Act, for reasons to be recorded, revoke the licence
by order in writing :
Provided that no such order shall be made until an opportunity is given to the
holder of the licence to show cause why the licence shall not be revoked.
(8) Where a licence in respect of a protective home or corrective institution
has been revoked under the foregoing sub-section such protective home shall cease
to function from the date of such revocation.
(9) Subject to any rules that may be made in this behalf, the State Government
may also vary or amend any licence issued or renewed under this Act.
(9-A) The State Government or any authority authorised by it in this behalf
may, subject to any rules that may be made in this behalf, transfer an inmate of a
protective home to another protective home or to a corrective institution or an inmate
of a corrective institution to another corrective institution or to a protective home,
where such transfer is considered desirable having regard to the conduct of the
person to be transferred, the kind of training to be imparted and other circumstances
of the case :
Provided that—
(a) no person who is transferred under this sub-section shall be required
to stay in the home or institution to which he is transferred for a period
longer than she was required to stay in the home or institution from
which she was transferred;
(b) reasons shall be recorded for every order of transfer under this
sub-section.
(10) Whoever establishes or maintains a protective home or corrective
institution except in accordance with the provisions of this section, shall be
punishable in the case of a first offence with fine which may extend to one thousand
rupees and in the case of second or subsequent offence with imprisonment for a term
which may extend to one year, or with fine which may extend to two thousand
rupees or with both.
21- A. Production of records.—Every person or authority who is licensed
under sub-section (3) of Section 21 to establish or maintain, or, as the case may be,
for maintaining, protective home or corrective institution shall whenever

required by a court, produce the records and other documents maintained by
such home or institution before such court.
22. Trials.—No court, inferior to that of metropolitan magistrate or a judicial
magistrate of the first class shall try any offence under Section 3, Section
4, Section 5, Section 6, Section 7 or Section 8.
22-A. Power to establish Special Courts.—(1) If the State Government is
satisfied that it is necessary for the purpose of providing for speedy trial of offences
under this Act in any district or metropolitan area, it may, by notification in the
official Gazette and after consultation with the High Court, establish one or more
Courts of Judicial Magistrates of the first class, or as the case may be, Metropolitan
Magistrates, in such district or metropolitan area.
(2) Unless otherwise directed by the High Court, a court established under
sub-section (1) shall exercise jurisdiction only in respect of cases under this Act.
i
(3) Subject to the provisions of sub-section (2), the jurisdiction and powers of
the presiding officer of a court established under sub-section (1) in any district or
metropolitan area shall extend throughout the district or the metropolitan area, as the
case may be.
(4) Subject to the foregoing provisions of the section, a court established
under sub-section (1) in any district or metropolitan area shall be deemed to be a
court established under sub-section (1) of Section 11, or, as the case may be, sub-
section (1) of Section 16, of the Code of Criminal Procedure, 1973 (2 of 1974) and
the provisions of that Code shall apply accordingly in relation to such courts.
Explanation.—In this section, "High Court" has the same meaning as in clause
(e) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974).
22-AA. Power of Central Government to establish special courts. —(1) If the
Central Government is satisfied that it is necessary for the purpose of providing for
speedy trial of offences under this Act and committed in more than one State, it may,
by notification in the official Gazette and after consultation with the High Court
concerned, establish one or more courts of Judicial Magistrates of the first class or
Metropolitan Magistrates for the trial of such offences.
(2) The provisions of Section 22-A, shall, so far as may be, apply to the courts
established under sub-section (1), as they apply to courts established under that
section.
22- B. Power of court to try cases summarily. —Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State
Government may, if it considers it necessary to do so, direct that offences under this
Act shall be tried in a summary way by a magistrate including the presiding officer
of a court established under sub-section (1) of Section 22-A and the provisions of
Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply
to such trial :
Provided that in the case of any conviction in a summary trial under this
section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a
term not exceeding one year :
Provided further that when at the commencement of, or in the course of, a
summary trial under this section, it appears to the magistrate that the nature of the
case is such that a sentence of imprisonment for a term exceeding one year may have
to be passed or that it is, for any other reason, undesirable to try the case summarily,
the magistrate shall, after hearing the parties record an order to the effect and
thereafter recall any witness, who may have been examined and proceed to hear or
rehear the case in the manner provided by the said Code.
730 23. Power to make rules.—(1) The State

Criminology Government may, by notification
and Penology in III
[Appendix
the official Gazette, make rules for carrying on the purposes of this Act.
power, such rules may provide for—
(a) the notification of any place as a public place;
(b) the placing in custody of persons for whose safe custody orders have been
passed under sub-section (1) of Section 17 and their maintenance;
(bb) the discharge of an offender under sub-section (3) of Section 10-A from a
corrective institution and the form of licence to be granted to such
offender;
(c) the detention and keeping in protective homes or, as the case may
be, in corrective institutions of persons under this Act and their
maintenance;
(d) the carrying out of the provisions of Section 11 regarding notification of
residence or change of or absence of a residence by released convicts;
(e) the delegation of authority to appoint the special police officer under
sub-section (1) of Section 13;
(f) the carrying into effect of the provisions of Section 18;
(g) (i) the establishment, maintenance, management and superintendence
of protective homes and corrective institutions under Section 21 and the
appointment, powers and duties of persons employed in such homes or
institutions;
(ii) the form in which an application for a licence may be made and the
particulars to be contained in such application;
(iii) the procedure for the issue or renewal of a licence, the time within which
such licence shall be issued or renewed and the procedure to be followed
in making a full and complete investigation in respect of an application
for a licence;
(iv) the form of a licence and the conditions to be specified therein,
(v) the manner in which the accounts of a protective home and a corrective
institution shall be maintained and audited;
(vi) the maintenance of registers and statements by a licensee and the form of
such registers and statements;
(vii) the care, treatment, maintenance, training, instruction, control and
discipline of the inmates of protective homes and corrective institutions;
(viii) the visits to and communication with such inmates;
(ix) the temporary detention of persons sentenced to detention in protective
homes or in corrective institutions until arrangements are made for
sending them to such homes or institutions;
(x) the transfer of an inmate from—
(a) one protective home to another, or to a corrective institution,
(b) one corrective institution to another or to a protective home
under sub-section (9-A) of Section 21;
(xi) the transfer in pursuance of an order of the court from a protective home
or a corrective institution to a prison of a person found to be incorrigible
or exercising bad influence upon other inmates of the protective home or
the corrective institution and the period of her detention in such prison;
(xii) the transfer to a protective home or corrective institution or persons
.—In this
sentenced
Explanation section
under the 7
Section expression
or Section'State
8 andAct'
the includes
period of atheir
Provincial
detention
in such home or institution;
(xiii) the discharge of inmates from a protective home or corrective institution

either absolutely or subject to conditions, and their arrest in the event of
breach of such conditions;
(xiv) the grant of permission to inmates to absent themselves for short
periods;
(xv) the inspection of protective homes and corrective institutions and other
institutions in which persons may be kept, detained and maintained;
(h) any other matter which has to be, or may be, prescribed.
(3) In making any rule under clause (d) or clause (g) of sub-section (2) the
State Government may provide that a breach thereof shall be punishable with fine
which may extend to two hundred and fifty rupees.
(4) All rules made under this Act shall, as soon as may be after they are made,
be laid before the State Legislature.
24. Act not to be in derogation of certain other Acts.—Nothing in this Act
shall be construed to be in derogation of the provisions of the Reformatory Schools
Act, 1897 (8 of 1897) or any State Act enacted in modification of die said Act or
otherwise, relating to juvenile offenders.
25. Repeal and savings.—(1) As from the date of the coming into force in any
State of the provisions other than Section 1 of this Act, all State Acts relating to
supression of immoral traffic in persons or to the prevention of prostitution, in force
in that State immediately before such date shall stand repealed.
(2) Notwithstanding the repeal by this Act or any State Act referred to in sub-
section (1), anything done or any action taken (including any direction given, any
register, rule or order made, any restriction imposed) under the provision of such
State Act shall in so far as such thing or action is not inconsistent with the provisions
of this Act be deemed to have been done or taken under the provisions of this Act as
if the said provisions were in force when such thing was done or such action was
taken and shall continue in force accordingly until superseded by anything done or
any action taken under this Act.
Act.
THE SCHEDULE
[See Section 2(c)]
Section Magistrate competent to exercise the powers
7(1) District Magistrate.

11(4) Metropolitan Magistrate or Judicial Magistrate of the first class.
* *
>jc j{c
15(5) Metropolitan Magistrate, Judicial Magistrate of the first class, District
Magistrate or Sub-Divisional Magistrate.
16 Metropolitan Magistrate, Judicial Magistrate of the first class District
18 District Magistrate or Sub-Divisional Magistrate.
19 Metropolitan Magistrate, Judicial Magistrate of the first class, District
20 District-Magistrate, Sub-Divisional Magistrate or any Executive
Magistrate specially empowered by the State Government.
22-B Metropolitan Magistrate, or Judicial Magistrate of the first class.
The Dowry Prohibition Act 1961 ,

(Act No. 28 of 1961)
[20th May, 1961]
An Act to prohibit the giving or taking of dowry Be
it enacted by
Parliament in the Twelfth Year of the Republic of India as follows :
Dowry Prohibition Act, 1961.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by
2. Definition of 'dowry'.—In this Act, "dowry" means any property or
valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person,
to either party to the marriage or to any other person, at or before or any
time after the marriage in connection with the marriage of the said parties, but does
not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.
Explanation I.—* * *
Explanation II—The expression "valuable security" has the same meaning as in
Section 30 of the Indian Penal Code (45 of 1860).
3. Penalty for giving or taking dowry.—(1) If any person, after the
commencement of this Act, gives or takes or abet.3 the giving or taking of dowry, he
shall be punishable with imprisonment for a term which shall not be less than five
years, and with fine which shall not be less than fifteen thousand rupees or the
Explanation.—In this section the expression 'State Act' includes a Provincial
amount of the value of such dowry, whichever is more :
Appendix III
Provided that the Court may, for adequate and special reasons to be recorded
in the judgment, impose a sentence of imprisonment for a term of less than five
years.
(2) Nothing in sub-section (1) shall apply to, or in relation to,—
(a) presents which are given at the time of a marriage to the bride
(without any demand having been made in that behalf) :
Provided that such presents are entered in a list maintained in accordance
with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom
(without any demand having been made in that behalf) ;
Appendix IV] The Dowry Prohibition Act, 1961 735

Provided that such presents are entered in a list maintained in accordance with
the rules made under this Act:
Provided further that where such presents are made by or on behalf of the
bride or any person related to the bride, such presents are of a customary nature and
the value thereof is not excessive having regard to the financial status of the person
by whom, or on whose behalf, such presents are given.
4. Penalty for demanding dowry.—If any person demands, directly or
indirectly, from the parents or other relatives or guardian of a bride or bridegroom,
as the case may be, any dowry, he shall be punishable with imprisonment for a term
which shall not be less than six months, but which may extend to two years and with
fine which may extend to ten thousand rupees :
Provided that the Court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than six
months.
4-A. Ban on advertisement.—If any person—
(a) offers through any advertisement in any newspaper, periodical, journal or
through any other media, any share in his property or of any money or
both as a share in any business or other interest as consideration for the
marriage of his son or daughter or any other relative;
(b) prints or publishes or circulates any advertisement referred to in
clause (a),
he shall be punishable with imprisonment for a term which shall not be less than six
months, but which may extened to five years, or with fine which may extend to
fifteen thousand rupees :
Provided that the Court may, for adequate and special reasons to be recorded
in the judgment, impose a sentence of imprisonment for a term of less than six
months.
5. Agreement for giving or taking dowry to be void.—Any agreement for the
giving or taking of dowry shall be void.
6. Dowry to be for the benefit of the wife or her heirs.—(1) Where any dowry
is received by any person other than the woman in connection with whose marriage
it is given, that person shall transfer it to the woman—
(a) if the dowry was received before marriage, within three months after
the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within
three months after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within
three months after she has attained the age of eighteen years, and pending such
transfer, shall hold it in trust for the benefit of the woman.
'(2) If any person fails to transfer any property as required by sub-section
(1) within the time limit specified therefor, or as required by sub-section (3) he shall
be punishable with imprisonment for a term which shall not be less than six months,
but which may extend to two years or with fine which shall not be
1. Substituted by Act No. 63 Sec. 5(b).

less than five thousand rupees, but which may extend to ten thousand rupees or with
both.
(3) Where the woman entitled to any property under sub-section (1) dies
before receiving it, the heirs of the woman shall be entitled to claim it from the
person holding it for the time being :
Provided that where such woman dies within seven years of her marriage,
otherwise than due to natural causes, such property shall,—
(a) if she has no children, be transferred to her parents; or
(b) if she has children, be transferred to such children and pending such
transfer, be held in trust for such children.
(3-A) Where a person convicted under sub-section (2) for failure to transfer
any property as required by sub-section (1) or sub-section (3) has not, before his
conviction under that sub-section, transferred such property to the woman entitled
thereto or, as the case may be her heirs, parents or children the Court shall, in
addition to awarding punishment under that sub-section, direct, by order in writing,
that such person shall transfer the property to such woman or, as the case may be her
heirs, parents or children within such period as may be specified in the order, and if
such person fails to comply with the direction within the period so specified, an
amount equal to the value of the property may be recovered from him as if it were a
fine imposed by such Court and paid to such woman or, as the case may be, her
heirs, parents or children.
(4) Nothing contained in this section shall affect the provisions of Section 3 or
Section 4.
7. Cognizance of offences.—(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974),—
(a) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence under this Act;
(b) no court shall take cognizance of an offence under this Act except
upon—
(i) its own knowledge or a police report of the facts which
constitute an offence, or
(ii) a complaint by the person aggrieved by the offence or a parent
or other relative of such person, or by any recognized welfare
institution or organisation;
(c) it shall be lawful for a Metropol tan Magistrate or a Judicial
Magistrate of the first class to pass any sentence authorised by this
Act on any person convicted of any offence under this Act.
Explanation.—For the purposes of this sub-section, "recognized welfare
institution or organisation" means a social welfare institution or organisation
recognised in this behalf by the Central or State Government.
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of
1974) shall apply to any offence punishable under this Act.
(3) Notwithstanding anything contained in any law for the time being in force,
a statement made by the person aggrieved by the offence shall not subject such
person to a prosecution under this Act.
8. Offences to be cognizable for certain purposes and to be non-bailable and
non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974)
shall apply to offences under this Act as if they were cognizable offences—
(a) for the purposes of investigation of such offences; and
(b) for the purposes of matters other than—
(i) matters referred to in Section 42 of that Code; and

(ii) the arrest of a person without a warrant or without an order
of a Magistrate.
(2) Every offence under this Act shall be non-bailable and non-compoundable.
8-A. Burden of proof in certain cases.—Where any person is prosecuted for
taking or abetting the taking of any dowry under Section 3, or the demanding of
dowry under Section 4, the burden of proving that he had not committed an offence
under these sections shall be on him.
8-B. Dowry Prohibition Officers.—(1) The State Government may appoint as
many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of
which they shall exercise their jurisdiction and powers under this Act.
(2) Every Dowry Prohibition Officer shall exercise and perform the following
powers and functions, namely :—
(a) to see that the provisions of this Act are complied with;
(b) to prevent, as far as possible, the taking or abetting the taking of, or
the demanding of, dowry;
(c) to collect such evidence as may be necessary for the prosecution of
persons committing offences under the Act; and
(d) to perform such additional functions as may be assigned to him by the
State Government, or as may be specified in the rules made under this
Act.
(3) The State Government may, by notification in the Official Gazette, confer
such powers of a police officer, as may be specified in the notification, on the Dowry
Prohibition Officer who shall exercise such powers subject to such limitations and
conditions as may be specified by rules made under this Act.
(4) The State Government may, for the purpose of advising and assisting
Dowry Prohibition Officers in the efficient performance of their functions under this
Act, appoint an Advisory Board consisting of not more than five social welfare
workers (out of whom at least two shall be women) from the area in respect of which
such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).
9. Power to make rules.—(i) The Central Government may, by notification in
the Official Gazette, make rules for carrying out the purposes of this Act.
power, such rules may provide for—
(a) the form and manner in which, and the persons by whom, any list
of presents referred to in sub-section (2) of Section 3 shall be maintained
and all other matters connected therewith; and
(b) the better co-ordination of policy and action with respect to the
administration of this Act.
(3) Every rule made under this section shall be laid as soon as may be after it
is made before each House of Parliament while it is in session for a total period of
thirty days which may be comprised in one session or in two successive sessions,
and if before the expiry of the session in which it is so laid or the session
immediately following both Houses agree in making any modification in the rule or
both Houses agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be, so however
that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
10. Power of State Government to make rules.—(1) The State Government
may, by notification in the Official Gazette, make rules for carrying out the purposes
of this Act.
738(2) In particular, and withoutCriminology

prejudiceand Penology [Appendix IV
to the generality of the foregoing
power such rules may provide for all or any of the following matters, namely :—
(a) the additional functions to be performed by the Dowry Prohibition
Officers under sub-section (2) of Section 8-B;
(b) limitations and conditions subject to which a Dowry Prohibition
Officer may exercise his functions under sub-section (3) of Section
8-B.
(3) Every rule made by the State Government under this section shall be laid
as soon as may be after it is made before the State Legislature.
THE DOWRY PROHIBITION (MAINTENANCE OF LIST OF PRESENTS

TO THE BRIDE AND BRIDEGROOM) RULES, 1985
G.S.R. 664(E), Dated 19th August, 1985. —In exercise of the powers conferred
by Section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central
Government hereby makes the following rules, namely—
1. Short title and commencement.—(1) These rules may be called the Dowry
Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules,
1985.
(2) They shall come into force on the 2nd day of October, 1985 being the date
appointed for the coming into force of the Dowry Prohibition (Amendment) Act,
1984 (63 of 1984).
2. Rules in accordance with which lists of presents are to be maintained.—(i)
The list of presents which are given at the time of the marriage to the bride shall be
maintained by the bride.
(2) The list of presents which are given at the time of marriage to the
bridegroom shall be maintained by the bridegroom.
(3) Every list of presents referred to in sub-rule (1) or sub-rule (2)—
(a) shall be prepared at the time of marriage or as soon as possible after
the marriage,
(b) shall be in writing;
(c) shall contain,—
(ii) the approximate value of the present;
(iii) the name of the person who has given the present; and
(iv) where the person giving the present is related to the bride or
bridegroom, a description of such relationship;
(d) shall be signed by both the bride and the bridegroom.
Explanation 1.—Where the bride is unable to sign, she may affix her thumb-
impression in lieu of her signature after having the list read out to her and obtaining
the signature, on the list, of the person who has so read out the particulars contained
in the list.
Explanation 2.—Where the bridegroom is unable to sign, he may affix his
thumb-impression in lieu of his signature after having the list read out to him and
obtaining the signature, on the list of the person who has so read out the particulars
contained in the list.
(4) The bride or the bridegroom may, if she or he so desires, obtain on either or
both of the lists referred to in sub-rule (1) or sub-rule (2) the signature or signatures of
any other person or persons present at the time of the marriage.
(i) a brief
RELEVANT description OF
PROVISIONS of each present;
INDIAN PENAL CODE, 1860

304-B. Dowry Death.—(1) Where the death of a woman is caused by any bums
or bodily injury or occurs otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called "dowry death",
and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purposes of this sub-section, "dowry" shall have the same
meaning as in Section 2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to imprisonment
for life.
498-A. Husband or relative of husband of a woman subjecting her to
cruelty.—Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine.
Explanation—For the purposes of this section, "cruelty" means—
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
Appendix V
The Probation of Offenders Act 1958 ,

[Act No. 20 of 1958]
[16th May, 1958]
An Act to provide for the release of offenders on probation or after due admonition and
for matters connected therewith.
Statement of Objects and Reasons.—The question of release of offenders on
probation of good conduct instead of sentencing them to imprisonment has been
under consideration for some time. In 1931, the Government of India prepared a
draft of Probation of Offenders Bill and circulated it to the then Local Governments
for their views. However, owing to pre-occupation with other more important
matters, the Bill could not be proceeded with. Later in 1934, the Government of
India informed Provincial Governments that there was no prospect of Central
legislation being undertaken at the time and there would be no objection to the
Provinces undertaking such legislation themselves. A few Provinces accordingly
enacted their own probation laws.
2. In several States, however, there are no separate probation laws at all. Even
in States where there are probation laws, they are not uniform nor are they adequate
to meet the present requirements. In the meantime, there has been an increasing
emphasis on the reformation and rehabilitation of the offender as a useful and self-
reliant member of society without subjecting him to the deleterious effects of jail
life. In view of the wide-spread interest in the probation system in the country, this
question has been re-examined and it is proposed to have a Central law on the
subject which should be uniformly applicable to all the States.
3. It is proposed to empower Courts to release an offender after admonition in
respect of certain specified offences. It is also proposed to empower Courts to release
on probation, in all suitable cases, an offender found guilty of having committed an
offence not punishable with death or imprisonment for life. In respect of offenders
under 21 years of age, special provision has been made putting restrictions on their
imprisonment. During the period of probation, offenders will remain under the
supervision of probation officers in order that they may be reformed and become
useful members of society. The Bill seeks to achieve these objects. (Vide Gazette of
India, Part II, Section 2, Extra., dated Nov. 11, 1957, p. 842).
Be it enacted by Parliament in the Ninth Year of the Republic of India as
follows :—
1. Short title, extent and commencement. —-'(1) This Act may be called the
Probation of Offenders Act, 1958.
(3) It shall come into force in a State on such date as the State Government
may, by notification in the Official Gazette, appoint, and different dates may be
appointed for different parts of the State.
(a) "Code" means the Code of Criminal Procedure, 1898 (5 of 1898);1199
(b) "probation officer" means an officer appointed to be a probation officer or
recognised as such under Section 13;
(c) "prescribed" means prescribed by rules made under this Act;
1199 Now Code of Criminal Procedure, 1973 (2 of 1974).

Appendix V] The Probation of Offenders Act, 1958 741

(d) words and expressions used but not defined in this Act and defined in the
Code of Criminal Procedure, 1898 (5 of 1898),1200 shall have the
meanings respectively assigned to them in that Code.
3. Power of court to release certain offenders after admonition.—When any
person is found guilty of having committed an offence punishable under Section 379
or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal
Code (45 of 1860), or any offence punishable with imprisonment for not more than
two years, or with fine, or with both, under the Indian Penal Code or any other law,
and no previous conviction is proved against him and the court by which the person
is found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is expedient
so to do, then, notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him to any punishment or
releasing him on probation of good conduct under Section 4 release him after due
admonition.
Explanation.—For the purposes of this section, previous conviction against a
person shall include any previous order made against him under this section or
Section 4.
4. Power of court to release, certain offenders on probation of good
conduct.—(1) When any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the court by which the person is
found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is expedient to
release him on probation of good conduct, then, notwithstanding anything contained
in any other law for the time being in force, the court may, instead of sentencing him
at once to any punishment, direct that he be released on his entering into a bond, with
or without sureties, to appear and receive sentence when called upon during such
period, not exceeding three years, as the court may direct, and in the meantime to
keep the peace and be of good behaviour :
Provided that the court shall not direct such release of an offender unless it is
satisfied that the offender or his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises jurisdiction or in which the
offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into
consideration the report, if any, of the probation officer concerned in relation to the
case.
(3) When an order under sub-section (1) is made, the court may, if it is of
opinion that in the interests of the offender and of the public it is expedient so to do,
in addition pass a supervision order directing that the offender shall remain under the
supervision of a probation officer named in the order during such period, not being
less than one year, as may be specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require
the offender, before he is released, to enter into a bond, with or without sureties, to
observe the conditions specified in such order and such additional conditions with
respect to residence, abstention from intoxicants or any other matter as the court
may, having regard to the particular circumstances, consider fit to impose for
preventing a repetition of the same offence or a commission of other offences by the
offender.
1200 Ibid.

(5) The court making a supervision order under sub-section (3) shall explain
to the offender the terms and conditions of the order and shall forthwith furnish one
copy of the supervision order to each of the offenders, the sureties, if any, and the
probation officer concerned.
5. Power of court to require released offenders to pay compensation and
costs.—(1) The court directing the release of an offender under Section 3 or Section
4, may, if it thinks fit, make at the same time a further order directing him to pay—
(a) such compensation as the court thinks reasonable for loss or injury
caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section (1) may be recovered as
a fine in accordance with the provisions of Sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the
offender is prosecuted, shall take into account any amount paid or recovered as
compensation under sub-section (1) in awarding damages.
6. Restrictions on imprisonment of offenders under twenty-one years of
age.—(1) When any person under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but not with imprisonemtn for
life), the court by which the person is found guilty shall not sentence him to
imprisonment unless it is satisfied that, having regard to the circumstances of the
case including the nature of the offence and the character of the offender, it would
not be desirable to deal with him under Section 3 or Section 4, and if the court passes
any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to
deal under Section 3 or Section 4 with an offender referred to in sub-section
(1) , the court shall call for a report from the probation officer and consider the
report, if any, and other information available to it relating to the character and
physical and mental conditions of the offender.
7. Report of probation officer to be confidential.—The report of a probation
officer referred to in sub-section (2) of Section 4 or sub-section (2) of Section 6 shall
be treated as confidential :
Provided that the court may, if it so thinks fit, communicate the substance
thereof to the offender and may give him an opportunity of producing such evidence
as may be relevant to the matter stated in the report.
8. Variation of conditions of probation.—(1) If, on the application of a probation
officer, any court which passes an order under Section 4 in respect of an offender is
of opinion that in the interests of the offender and the public it is expedient or
necessary to vary the conditions of any bond entered into by the offender, it may, at
any time during the period when the bond is effective, vary the bond by extending or
diminishing the duration thereof so, however, that it shall not exceed three years
from the date of the original order or by altering the conditions thereof or by
inserting additional conditions therein :
Provided that no such variation shall be made without giving the offender and
the surety or sureties mentioned in the bond an opportunity of being heard.
(2) If any surety refuses to consent to any variation proposed to be made under
sub-section (1), the court may require the offender to enter into a fresh bond and if
the offender refuses or fails to do so, the court may sentence him for the offence of
which he was found guilty.
(3) Notwithstanding anything hereinbefore contained, the court which passes
an order under Section 4 in respect of an offender may, if it is satisfied on an
application made by the probation officer, that the conduct of the offender has been

such as to make it unnecessary that he should be kept any longer under supervision,
discharge the bond or bonds entered into by him.
9. Procedure in case of offender failing to observe conditions of bond. —(1) If the
court which passes an order under Section 4 in respect of an offender or any court
which could have dealt with the offender in respect of his original offence has reason
to believe, on the report of a probation officer or otherwise, that the offender has
failed to observe any of the conditions of the bond or bonds entered into by him, it
may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and
his sureties, if any, requiring him or them to attend before it at such time as may be
specified in the summons.
(2) The court before which an offender is so brought or appears may either
remand him to custody until the case is concluded or it may grant him bail, with or
without surety, to appear on the date which it may fix for hearing.
(3) If the court, after hearing the case, is satisfied that the offender has failed to
observe any of the conditions of the bond or bonds entered into by him, it may
forthwith—
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the
continuance in force of the bond, impose upon him a penalty not
exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within
such period as the court may fix, the court may sentence the offender for the original
offence.
10. Provision as to sureties.—The provisions of Sections 122, 126, 126-A, 406-
A, 514, 514-A, 514-B and 515 of the Code shall, so far as may be, apply in the case
of bonds and sureties given under this Act.
11. Courts competent to make order under the Act, appeal and revision and
powers of courts in appeal and revision.—(1) Notwithstanding anything contained in
the Code or any other law, an order under this Act may be made by any court
empowered to try and sentence the offender to imprisonment and also by the High
Court or any other court when the case comes before it on appeal or in revision.
(2) Notwithstanding anything contained in the Code, where an order under
Section 3 or Section 4 is made by any court trying the offender (other than a High
Court), an appeal shall lie to the court to which appeals ordinarily lie from the
sentences of the former court.
(3) In any case where any person under twenty-one years of age is found
guilty of having committed an offence and the court by which he is found guilty
declines to deal with him under Section 3 or Section 4, and passes against him any
sentence of imprisonment with or without fine from which no appeal lies or is
preferred, then, notwithstanding anything contained in the Code or any other law, the
court to which appeals ordinarily lie from the sentences of the former court may,
either of its own motion or on an application made to it by the convicted person or
the probation officer, call for and examine the record of the case and pass such order
thereon as it thinks fit.
(4) When an order has been made under Section 3 or Section 4 in respect of
an offender, the Appellate Court or the High Court in the exercise of its power of
revision may set aside such order and in lieu thereof pass sentence on such offender
according to law :
Provided that the Appellate Court or the High Court in revision shall not inflict
a greater punishment than might have been inflicted by the court by which the
offender was found guilty.

12. Removal of disqualification attaching to conviction.— Notwithstanding
anything contained in any other law, a person found guilty of an offence and dealt
with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if
any, attaching to a conviction of an offence under such law :
Provided that nothing in this section shall apply to a person who, after his
release under Section 4, is subsequently sentenced for the original offence.
13. Probation officers.—(1) A probation officer under this Act shall be—
(a) a person appointed to be a probation officer by the State Government
or recognised as such by the State Government; or
(b) a person provided for this purpose by a society recognised in this behalf
by the State Government; or
(c) in any exceptional case, any other person who, in the opinion of the
court, is fit to act as a probation officer in the special circumstances of
the case.
(2) A court which passes an order under Section 4 or the district magistrate of
the district in which the offender for the time being resides may, at any time, appoint
any probation officer in place of the person named in the supervision order.
Explanation.—For the purposes of this section, a presidency town shall be
deemed to be a district and chief presidency magistrate shall be deemed to be the
district magistrate of that district.
(3) A probation officer, in the exercise of his duties under this Act, shall
be subject to the control of the district magistrate of the district in which the offender
for the time being resides.
14. Duties of probation officers.—A probation officer shall, subject to such
conditions and restrictions, as may be prescribed,—
(a) inquire, in accordance with any directions of a court, into the
circumstances or home surroundings of any person accused of an offence
with a view to assist the court in determining the most suitable method of
dealing with him and submit reports to the court;
(b) supervise probationers and other persons placed under his
supervision and, where necessary, endeavour to find them suitable
employment;
(c) advise and assist offenders in the payment of compensation of costs
ordered by the court;
(d) advise and assist, in such cases and in such manner as may be prescribed,
persons who have been released under Section 4; and
(e) perform such other duties as may be prescribed.
15. Probation officers to be public servants.—Every probation officer and every
other officer appointed in pursuance of this Act shall be deemed to be public servants
within the meaning of Section 21 of the Indian Penal Code (45 of 1860).
16. Protection of action taken in good faith.—No suit or other legal proceeding
shall lie against the State Government or any probation officer or any other officer
appointed under this Act in respect of anything which is in good faith done or
intended to be done in pursuance of this Act or of any rules or orders made
thereunder.
17. Power to make rules.—(1) The State Government may, with the approval of
the Central Government, by notification in the Official Gazette, make rules to carry
out the purposes of this Act.
power, such rules may provide for all or any of the following matters, namely :—
(a) appointment of probation officers, the terms and conditions of their
service and the area within which they are to exercise jurisdiction;

(b) duties of probation officers under this Act and the submission of
reports by them;
(c) the conditions on which societies may be recognised for the purposes
of clause (b) of sub-section (1) of Section 13;
(d) the payment of remuneration and expenses to probation officers or of a
subsidy to any society which provides probation officers; and
(e) any other matter which is to be, or may be, prescribed.
(3) All rules made under this section shall be subject to the condition of
previous publication and shall, as soon as may be after they are made, be laid before
the State Legislature.
18. Saving of operation of certain enactments.—Nothing in this Act shall affect the
provisions of Section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-
section (2) of Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947)1201 or
of any law in force in any State relating to juvenile offenders or borstal schools.
19. Section 5621202 of the Code not to apply in certain areas.— Subject to the
provisions of Section 18, Section 5621203 of the Code shall cease to apply to the
States or parts thereof in which this Act is brought into force.
1201 Now see corresponding provisions of Prevention of Corruption Act, 1988.

1202 Now Section 360 of Code of Criminal Procedure, 1973.
1203 Ibid.
Appendix VI
The Juvenile Justice (Care and Protection of
Children) Act 2000 ,
[Act No. 56 of 2000]
[30th December, 2000]
An Act to consolidate and amend the law relating to juveniles in conflict with law and
children in need of care and protection, by providing for proper care, protection and treatment
by catering to their development needs, and by adopting a child-friendly approach in the
adjudication and disposition of matters in the best interest of children and for their ultimate
rehabilitation Hand for matters connected therewith or incidental thereto].
WHEREAS the Constitution has, in several provisions, including clause (3) of
Article 15, clauses (e) and (f) of Article 39, Articles 45 and 47, impose on the State a
primary responsibility of ensuring that all the needs of children are met and that their
basic human rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the
Convention on the Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a
set of standards to be adhered to by all State parties in securing the best interests of
the child;
AND WHEREAS, the Convention on the Rights of the Child emphasises social
reintegration of child victims, to the extent possible, without resorting to judicial
proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the
11th December, 1992.
AND WHEREAS, it is expedient to re-enact the existing law relating to
juveniles bearing in mind the standards prescribed in the Convention on the Rights
of the Child, the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990), and all other relevant
international instruments.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as
follows :—
CHAPTER I
PRELIMINAR
Y
1. Short title, extent, ^commencement and application].— (1) This Act may be
called the Juvenile Justice (Care and Protection of Children) Act, 2000.

(3) It shall come into force on such date1204 as the Central Government may, by
2[(4) Notwithstanding anything contained in any other law for the time being
in force, the provisions of this Act shall apply to all cases involving detention,
prosecution, penalty or sentence of imprisonment of juveniles in conflict with law
under any such law.]
(a) "advisory board" means a Central or a State advisory board or a
district and city level advisory board, as the case may be, constituted
under section 62;
3[(aa) "adoption" means the process through which the adopted child is
permanently separated from his biological parents and become the

legitimate child of his adoptive parents with all the rights, privileges
and responsibilities that are attached to the relationship;]
(b) "begging" means—
(i) soliciting or receiving alms in a public place or entering into any
private premises for the purpose of soliciting or receiving alms,
whether under any pretence;
(ii) exposing or exhibiting with the object of obtaining or extorting
alms, any sore, wound, injury, deformity or disease, whether of
himself, or of any other person or of an animal;
(c) "Board" means a Juvenile Justice Board constituted under section 4;
(d) "child in need of care and protection" means a child—
(i) who is found without any home or settled place or abode and
without any ostensible means of subsistence,
4[(ia) who is found begging, or who is either a street , child or a
working child,]
(ii) who resides with a person (whether a guardian of the child or not)
and such person—
(a) has threatened to kill or injure the child and there is a
reasonable likelihood of the threat being carried out, or
(b) has killed, abused or neglected some other child or children
and there is a reasonable likelihood of the child in question
being killed, abused or neglected by that person,
(iii) who is mentally or physically challenged or ill children or children
suffering from terminal diseases or incurable diseases having no
one to support or look after,
(iv) who has a parent or guardian and such parent or guardian is unfit
or incapacitated to exercise control over the child,
1204 Came into force on 1.4.2001 vide S.O. 177(E), dated 28th February, 2001, published
in the Gazette of India, Extra., Part II, Sec. 3(ii).
2. Ins. by Act No. 33 of 2006, Sec. 3 (w.e.f. 22-08-2006).
Appendix VI] The Juvenile Justice (Care and Protection of Children) Act, 2000 749
(v) who does not have parent and no one is willing to take care of or whose
parents have abandoned '[or surrendered] him or who is missing and
run away child and whose parents cannot be found after reasonable
injury,
(vi) who is being or is likely to be grossly abused, tortured or exploited for
the purpose of sexual abuse or illegal acts,
(vii) who is found vulnerable and is likely to be inducted into drug abuse or
trafficking,
(viii) who is being or is likely to be abused for unconscionable gains,
(ix) who is victim of any armed conflict, civil commotion or natural
calamity;
(e) "children's home" means an institution established by a State
Government or by voluntary organisation and certified by that Government
under section 34;
(f) "Committee" means a Child Welfare Committee constituted under
section 29;
(g) "competent authority" means in relation to children in need of care and
protection a Committee and in relation to juveniles in conflict with law a
Board;
(h) "fit institution" means a governmental or a registered nongovernmental
organisation or a voluntary organisation prepared to own the responsibility
of a child and such organisation is found fit by the 2[State Government on
the recommendation of the competent authority;]
(i) "fit person" means a person, being a social worker or any other
person, who is prepared to own the responsibility of a child and is found fit
by the competent authority to receive and take care of the child;
(j) "guardian1205, in relation to a child, means his natural guardian or any other
person having the actual charge or control over the child and recognised by
the competent authority as a guardian in course of proceedings before that
authority;
(k) "juvenile" or "child" means a person who has not completed eighteenth year
of age;
3[(1) "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence and has not completed eighteenth year of age as on

the date of commission of such offence;]
4[(m) ***]
(n) "narcotic drug" and "psychotropic substance" shall have the meanings
respectively assigned to them in the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985);
(o) "observation home" means a home established by a State
1205 Ins. by Act No. 33 of 2006, Sec. 4 (w.e.f. 22-08-2006).

2. Subs, by Act No. 33 of 2006, Sec. 4, for "competent authority" (w.e.f. 22-08-2006).
3. Subs, by Act No. 33 of 2006, Sec. 4 (w.e.f. 22-08-2006).
4. Clause (m) omitted by Act No. 33 of 2006, Sec. 4 (w.e.f. 22-08-2006).
750 Criminology and Penology [Appendix VI
Government or by a voluntary organisation and certified by that State

Government under section 8 as an observation home for the juvenile in
conflict with law;
(p) "offence" means an offence punishable under any law for the time being
in force;
(q) "place of safety" means any place or institution (not being a police lock-
up or jail), the person incharge of which is willing temporarily to receive and
take care of the juvenile and which, in the opinion of the competent authority,
may be a place of safety for the juvenile; (r) "prescribed" means prescribed
by rules made under this Act;
(s) "probation officer" means an officer appointed by the State Government
as a probation officer under the Probation of Offenders Act, 1958 (20 of
1958);
(t) "public place" shall have the meaning assigned to it in the Immoral Traffic
(Prevention) Act, 1956 (104 of 1956);
(u) "shelter home" means a home or a drop-in-centre set up under section
37;
(v) "special home" means an institution established by a State Government
or by a voluntary organisation and certified by that Government under
section 9;
(w) "special juvenile police unit" means a unit of the police force of a State
designated for handling of juveniles or children under section 63;
(x) "State Government", in relation to a Union territory, means the
Administrator of that Union territory appointed by the President under
Article 239 of the Constitution;
(y) all words and expressions used but not defined in this Act and defined in
the Code of Criminal Procedure, 1973 (2 of 1974), shall have the
meanings respectively assigned to them in that Code.
3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.—
Where an inquiry has been initiated against a juvenile in conflict with law or a child
in need of care and protection and during the course of such inquiry the juvenile or
the child ceases to be such, then, notwithstanding anything contained in this Act or in
any other law for the time being in force, the inquiry may be continued and orders
may be made in respect of such person as if such person had continued to be a
juvenile or a child.
CHAPTER II JUVENILE IN CONFLICT WITH LAW
4. Juvenile Justice Board.—(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), the State Government may, ’[within a
period of one year from the date of commencement of the Juvenile Justice (Care and
Protection of Children) Amendment Act, 2006 by notification in the Official Gazette,
constitute for every district], one or more Juvenile Justice Boards for exercising the
powers and discharging the duties conferred or imposed on such Boards in relation to
juveniles in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate
of the first class, as the case may be, and two social workers of whom at least one
shall be a woman, forming a Bench and every such Bench shall have the powers
conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of the first class and the

Magistrate on the Board shall be designated as the principal Magistrate.

(3) No Magistrate shall be appointed as a member of the Board unless he has
special knowledge or training in child psychology or child welfare and no social
worker shall be appointed as a member of the Board unless he has been actively
involved in health, education, or welfare activities pertaining to children for at least
seven years.
(4) The term of office of the members of the Board and the manner in which
such member may resign shall be such as may be prescribed.
(5) The appointment of any member of the Board may be terminated after
holding inquiry, by the State Government, if—
(i) he has been found guilty of misuse of power vested under this Act,
(ii) he has been convicted of an offence involving moral turpitude, and such
conviction has not been reversed or he has not been granted full pardon
in respect of such offence,
(iii) he fails to attend the proceedings of the Board for consecutive three
months without any valid reason or he fails to attend less than three-
fourth of the sittings in a year.
5. Procedure, etc., in relation to Board.—(1) The Board shall meet at such
times and shall observe such rules of procedure in regard to the transaction of
business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an individual member
of the Board, when the Board is not sitting.
(3) A Board may act notwithstanding the absence of any member of the Board,
and no order made by the Board shall be invalid by reason only of the absence of any
member during any stage of proceedings :
Provided that there shall be at least two members including the principal
Magistrate present at the time of final disposal of the case.
(4) In the event of any difference of opinion among the members of the Board
in the interim or final disposition, the opinion of the majority shall prevail, but where
there is no such majority, the opinion of the principal Magistrate shall prevail.
6. Powers of Juvenile Justice Board.—(1) Where a Board has been constituted
for any district 1 [***], such Board shall, notwithstanding anything contained in any
other law for the time being in force but save as otherwise expressly provided in this
Act, have power to deal exclusively with all proceedings under this Act relating to
juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be
exercised by the High Court and the Court of Session, when the proceeding comes
before them in appeal, revision or otherwise.
7. Procedure to be followed by a Magistrate not empowered under the Act. —(1)
When any Magistrate not empowered to exercise the powers of a Board under this
Act is of the opinion that a person brought before him under any of the provisions of
this Act (other than for the purpose of giving evidence), is a juvenile or the child, he
shall without any delay record such opinion and forward the juvenile or the child and
the record of the proceeding to the competent authority having jurisdiction over the
proceeding.
(2) The competent authority to which the proceeding is forwarded under sub-
section (1) shall hold the inquiry as if the juvenile or the child had originally been
brought before it.
1. Omitted by Act No. 33 of 2006, Sec. 7 (w.e.f. 22-08-2006).


'[7-A. Procedure to be followed when claim of juvenility is raised before any court.—
(1) Whenever a claim of juvenility is raised before-any court or a court is of the
opinion that an accused person was a juvenile on the date of commission of the
offence, the court shall make an enquiry, take such evidence as may be necessary
(but not an affidavit) so as to determine the age of such person, and shall record a
finding whether the person is a juvenile or a child or not, stating his age as nearly as
may be :
Provided that a claim of juvenility may be raised before any court and it shall
be recognised at any stage, even after final disposal of the case, and such claim shall
be determined in terms of the provisions contained in this Act and the rules made
thereunder, even if the juvenile has ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the
offence under sub-section (1), it shall forward the juvenile to the Board for passing
appropriate order, and the sentence if any, passed by a court shall be deemed to have
no effect.]
8. Observation homes.—(1) Any State Government may establish and maintain
either by itself or under an agreement with voluntary organisations, observation
'homes in every district or a group of districts, as may be required for the temporary
reception of any juvenile in conflict with law during the pendency of any inquiry
regarding them under this Act.
(2) Where the State Government is of opinion that any institution other than a
home established or maintained under sub-section (1), is fit for the temporary
reception of juvenile in conflict with law during the pendency of any inquiry
regarding them under this Act, it may certify such institution as an observation home
for the purposes of this Act.
(3) The State Government may, by rules made under this Act, provide for the
management of observation homes, including the standards and various types of
services to be provided by them for rehabilitation and social integration of a juvenile,
and the circumstances under which, and the manner in which, the certification of an
observation home may be granted or withdrawn.
(4) Every juvenile who is not placed under the charge of parent or guardian
and is sent to an observation home shall be initially kept in a reception unit of the
observation home for preliminary inquiries, care and classification for juveniles
according to his age group, such as seven to twelve years, twelve to sixteen years and
sixteen to eighteen years, giving due considerations to physical and mental status and
degree of the offence

committed, for further induction into observation home.
9. Special homes.—(1) Any State Government may establish and maintain
either by itself or under an agreement with voluntary organisations, special homes in
every district or a group of districts, as may be required for reception and
rehabilitation of juvenile in conflict with law under this Act.
(2) Where the State Government is of opinion that any institution other than a
home established or maintained under sub-section (1), is fit for the reception of
juvenile in conflict with law to be sent there under this Act, it may certify such
institution as a special home for the purposes of this Act.
management of special homes, including the standards and various types of services
to be provided by them which are necessary for re-socialisation of a juvenile, and the
circumstances under which, and the manner in which, the certification of a special
home may be granted or withdrawn.
(4) The rules made under sub-section (3) may also provide for the
classification and separation of juvenile in conflict with law on the basis of age and
the nature of offences committed by them and his mental and physical status.
10. Apprehension of juvenile in conflict with law.—(1) As soon as a juvenile
in conflict with law is apprehended by police, he shall be placed under the charge of
the special juvenile police unit or the designated police officer, who shall produce the
juvenile before the Board without any loss of time but within a period of twenty-four
hours of his apprehension excluding the time necessary for the journey, from the
place where the juvenile was apprehended, to the Board :
Provided that in no case, a juvenile in conflict with law shall be placed in a
police lockup or lodged in a jail."
(2) The State Government may make rules consistent with this Act,—
(i) to provide for persons through whom (including registered voluntary
organisations) any juvenile in conflict with law may be produced before
the Board;
(ii) to provide the manner in which such juvenile may be sent to an
observation horrje.
11. Control of custodian over juvenile.—Any person in whose charge a
juvenile is placed in pursuance of this Act shall, while the order is in force have the
control over the juvenile as he would have if he were his parents, and shall be
responsible for his maintenance, and the juvenile shall continue in his charge for the
period stated by competent authority, notwithstanding that he is claimed by his
parents or any other person.
12. Bail of juvenile.—(1) When any person accused of a bailable or non-
bailable offence, and apparently a juvenile, is arrested or detained or appears or is
brought before a Board, such person shall, notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being
in force, be released on bail with or without surety ’[or placed under supervision of a
Probation Officer or under the care of any fit institution or fit person] but he shall not
be so released if there appears reasonable grounds for believing that the release is
likely to bring him into association with any known criminal or expose him to moral,
physical or psychological danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-
section (1) by the officer incharge of the police station, such officer shall cause him
to be kept only in an observation home in the prescribed manner until he can be
brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the

Board it shall, instead of committing him to prison, make an order sending him to an
observation home or a place of safety for such period during the pendency of the
inquiry regarding him as may be specified in the order.
13. Information to parent, guardian or probation officer.—Where a juvenile is
arrested, the officer incharge of the police station or the special juvenile police unit
to which the juvenile is brought shall, as soon as may be after the arrest, inform—
(a) the parent or guardian of the juvenile, if he can be found, of such arrest
and direct him to be present at the Board before which the juvenile will
appear; and
(b) the probation officer of such arrest to enable him to obtain information
regarding the antecedents and family background of the juvenile and
other material circumstances likely to be of assistance to the Board for
making the inquiry.
14. Inquiry by Board regarding juvenile.—‘(1) Where a juvenile having been
charged with the offence is produced before a Board, the Board shall hold the inquiry
in accordance with the provisions of this Act and may make such order in relation to
the juvenile as it deems fit :
Provided that an inquiry under this section shall be completed within a period
of four months from the date of its commencement, unless the period is extended by
the Board having regard to the circumstances of the case and in special cases after
recording the reasons in writing for such extension.
2[(2) The Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall
review the pendency of cases of the Board at every six months, and shall direct the
Board to increase the frequency of its sittings or may cause the constitution of
additional Boards.]
15. Order that may be passed regarding juvenile.—(1) Where a Board is
satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding
anything to the contrary contained in any other law for the time being in force, the
Board may, if it so thinks fit,—
(a) allow the juvenile to go home after advice or admonition following
appropriate inquiry against and counselling to the parent or the guardian
and the juvenile;
(b) direct the juvenile to participate in group counselling and similar
activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he
is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and
placed under the care of any parent, guardian or other fit person, on such
parent, guardian or other fit person executing a bond, with or without
surety, as the Board may require, for the good behaviour and well-being
of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and
placed under the care of any fit institution for the good behaviour and
well-being of the juvenile for any period not exceeding three years;
'[(g) make an order directing the juvenile to be sent to a special home for a
period of three years :
— Provided that the Board may, if it is satisfied that having regard to the nature of
the offence and the circumstances of the case it is expedient so to do, for reasons to
be recorded, reduce the period of stay to such period as it thinks fit.]
(2) The Board shall obtain the social investigation report on juvenile either
through a probation officer or a recognised voluntary organisation or otherwise, and

shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section
(1) is made, the Board may, if it is of opinion that in the interests of the
juvenile and of the public, it is expedient so to do, in addition make an order that the
juvenile in conflict with law shall remain under the supervision of a probation
officer named in the order during such period, not exceeding three years as may be
specified therein, and may in such supervision order impose such conditions as it
deems necesbary for the due supervision of the juvenile in conflict with law :
Provided that if at any time afterwards it appears to the Board on receiving a
report from the probation officer or otherwise, that the juvenile in conflict with law
has not been of good behaviour during the period of supervision or that the fit
institution under whose care the juvenile was placed is no longer able or willing to
ensure the good behaviour and well-being of the juvenile it may, after making such
inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special
home.
(4) The Board shall while making a supervision order under sub- section
(3) , explain to the juvenile and the parent, guardian or other fit person or fit
institution, as the case may be, under whose care the juvenile has been placed, the
terms and conditions of the order and shall forthwith furnish one copy of the
supervision order to the juvenile, the parent, guardian or other fit person or fit
institution, as the case may be, the sureties, if any, and the probation officer.
16. Order that may not be passed against juvenile.—(1) Notwithstanding
anything to the contrary contained in any other law for the time being in force, no
juvenile in conflict with law shall be sentenced to death '[or imprisonment for any
term which may extend to imprisonment for life], or committed to prison in default
of payment of fine or in default of furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has
committed an offence and the Board is satisfied that the offence committed is so
serious in nature or that his conduct and behaviour have been such that it would not
be in his interest or in the interest of other juvenile in a special home to send him to
such special home and that none of the other measures provided under this Act is
suitable or sufficient, the Board may order the juvenile in conflict with law to be kept
in such place of safety and in such manner as it thinks fit and shall report the case for
the order of the State Government.
(2) On receipt of a report from a Board under sub-section (1), the State
Government may make such arrangement in respect of the juvenile as it deems
proper and may order such juvenile to be kept under protective custody at such place
and on such conditions as it thinks fit :
2[Provided that the period of detention so ordered shall not exceed in any case
the maximum period provided under Section 15 of this Act.]

17. Proceeding under Chapter VIII of the Code of Criminal Procedure not
competent against juvenile.— Notwithstanding anything to the contrary contained in
the Code of Criminal Procedure, 1973 (2 of 1974) no proceeding shall be instituted
and no order shall be passed against the juvenile under Chapter VIII of the said
Code.
18. No joint proceeding of juvenile and person not a juvenile.— (1)
Notwithstanding anything contained in section 223 of the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no
juvenile shall be charged with or tried for any offence together with a person who is

not a juvenile.
(2) If a juvenile is accused of an offence for which under section 223 of the
Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force, such juvenile and any person who is not a juvenile would, but for the
prohibition contained in sub-section (1), have been charged and tried together, the
Board taking cognizance of that offence shall direct separate trials of the juvenile and
the other person.
19. Removal of disqualification attaching to conviction.— (1)
Notwithstanding anything contained in any other law, a juvenile who has committed
an offence and has been dealt with under the provisions of this Act shall not suffer
disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such
conviction shall be removed after the expiry of the period of appeal or a reasonable
period as prescribed under the rules, as the case may be.
20. Special provision in respect of pending cases.— Notwithstanding anything
contained in this Act, all proceedings in respect of a juvenile pending in any court in
any area on the date on which this Act comes into force in that area, shall be
continued in that court as if this Act had not been passed and if the court finds that
the juvenile has committed an offence, it shall record such
finding and instead of passing any sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in respect of that juvenile in accordance
with the provisions of this Act as if it had been satisfied on inquiry under this Act
that a juvenile has committed the offence :
’[Provided that the Board may, for any adequate and special reason to be
mentioned in the order, review the case and pass appropriate order in the interest of
such juvenile.
Explanation.—In all pending cases including trial, revision, appeal or any other
criminal proceedings in respect of a juvenile in conflict with law, in any court, the
determination of juvenility of such a juvenile shall be in terms of clause (I) of Section
2, even if the juvenile ceases to be so on or before the date of commencement of this
Act and the provisions of this Act shall apply as if the said provisions had been in
force, for all purposes and at all material times when the alleged offence was
committed.]
2[21. Prohibition of publication of name, etc. of juvenile or child in need of care
and protection involved in any proceeding under the Act.—(1) No report in any
newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile
in conflict with law or a child in need of care and protection under this Act shall
disclose the name, address or school or any other particulars calculated to lead to the
identification of the juvenile or child nor shall any picture of any such juvenile or
child be published :
Provided that for reasons to be recorded in writing, the authority holding the
inquiry may permit such disclosure, if in its opinion such disclosure is in the interest
of the juvenile or the child.
(2) Any person who contravenes the provisions of sub-section (1), shall be
liable to a penalty which may extend to twenty-five thousand rupees.]
22. Provision in respect of escaped juvenile.— Notwithstanding anything to
the contrary contained in any other law for the time being in force, any police officer
may take charge without warrant of a juvenile in conflict with law who has escaped
from a special home or an observation home or from the care of a person under
whom he was placed under this Act, and shall be sent back to the special home or the
observation home or that person, as the case may be; and no proceeding shall be
instituted in respect of the juvenile by reason of such escape, but the special home, or
the observation home or the person may, after giving the information to the Board
which passed the order in respect of the juvenile, take such steps in respect of the
juvenile as may be deemed necessary under the provisions of this Act.
23. Punishment for cruelty to juvenile or child.— Whoever, having the actual
charge of, or control over, a juvenile or the child, assaults, abandons, exposes or
wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned,
exposed or neglected in a manner likely to cause such juvenile or the child
unnecessary mental or physical suffering shall be punishable with imprisonment for
a term which may extend to six months, or fine, or with both.
24. Employment of juvenile or child for begging.—(1) Whoever employs or
uses any juvenile or the child for the purpose or causes any juvenile

to beg shall be punishable with imprisonment for a term which may extend to three
years and shall also be liable to fine.
(2) Whoever, having the actual charge of, or control over, a juvenile or the
child abets the commission of the offence punishable under sub-section (1), shall be
punishable with imprisonment for a term which may extend to one year and shall
also be liable to fine.
25. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance
to juvenile or child.—Whoever gives, or causes to be given, to any juvenile or the
child any intoxicating liquor in a public place or any narcotic drug or psychotropic
substance except upon the order of duly qualified medical practitioner or in case of
sickness shall be punishable with imprisonment for a term which may extend to three
years and shall also be liable to fine.
26. Exploitation of juvenile or child employee.—Whoever ostensibly procures
a juvenile or the child for the purpose of any hazardous employment keeps him in
bondage and withholds his earnings or uses such earning for his own purposes shall
be punishable with imprisonment for a term which may extend to three years and
shall also be liable to fine.
27. Special offences.—The offences punishable under sections 23, 24, 25, and
26 shall be cognizable.
28. Alternative punishment.—Where an act or omission constitute an offence
punishable under this Act and also under any other Central or State Act, then,
notwithstanding anything contained in any law for the time being in force, the
offender found guilty of such offences shall be liable to punishment only under such
Act as provides for punishment which is greater in degree.
CHAPTER III CHILD IN NEED OF CARE AND PROTECTION
29. Child Welfare Committee.—(1) The State Government may, '[within a
period of one year from the date of commencement of the Juvenile Justice (Care and
Protection of Children) Amendment Act, 2006 by notification in the Official Gazette,
constitute for every district], one or more Child Welfare Committee for exercising
the powers and discharge the duties conferred on such Committees in relation to
child in need of care and protection under this Act.
(2) The Committee shall consist of a Chairperson and four other members as
the State Government may think fit to appoint, of whom at least one shall be a
woman and another, an expert on matters concerning children.
(3) The qualifications of the Chairperson and the members, and the tenure for
which they may be appointed shall be such as may be prescribed.
(4) The appointment of any member of the Committee may be terminated,
after holding inquiry, by the State Government, if—
(i) he has been found guilty of misuse of power vested under this Act;
(ii) he has been convicted of an offence involving moral turpitude, and such
conviction has not been reversed or he has not been granted full pardon
in respect of such offence;
(iii) he fails to attend the proceedings of the Committee for consecutive
three months without any valid reason or he fails to attend less .than
three-fourth of the sittings in a year.
(5) The Committee shall function as a Bench of Magistrates and shall have the
powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a
Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first
class.
30. Procedure, etc., in relation to Committee.—(1) The Committee shall meet
at such times and shall observe such rules of procedure in regard to the transaction of
business at its meetings, as may be prescribed.
(2) A child in need of care and protection may be produced before an
individual member for being placed in safe custody or otherwise when the
Committee is not in session.
(3) In the event of any difference of opinion among the members of the
Committee at the time of any interim decision, the opinion of the majority shall
prevail but where there is no such majority the opinion of the Chairperson shall
prevail.
(4) Subject to the provisions of sub-section (1), the Committee may act,
notwithstanding the absence of any member of the Committee, and no order made by
the Committee shall be invalid by reason only of the absence of any member during
any stage of the proceeding.
31. Powers of Committee.—(1) The Committee shall have the final authority
to dispose of cases for the care, protection, treatment, development and rehabilitation
of the children as well as to provide for their basic needs and protection of human
rights.
(2) Where a Committee has been constituted for any area, such Committee
shall, notwithstanding anything contained in any other law for the time being in force
but save as otherwise expressly provided in this Act, have the power to deal
exclusively with all proceedings under this Act relating to children in need of care
and protection.
32. Production before Committee.—(1) Any child in need of care and
protection may be produced before the Committee by one of the following persons
:—
(i) any police officer or special juvenile police unit or a designated police
officer;
(ii) any public servant;
(iii) childline, a registered voluntary organisation or by such other voluntary
organisation or an agency as may be recognised by the State
Government;
(iv) any social worker or a public spirited citizen ’[***]; or
(v) by the child himself :
2[Provided that the child shall be produced before the Committee without any
loss of time but within a period of twenty-four hours excluding the time necessary
for the journey.]
(2) The State Government may make rules consistent with this Act to provide
for the manner of making the report ’[***] to the Committee and the manner of
sending and entrusting the child to children's home pending the
inquiry.
33. Inquiry.—(1) On receipt of a report under section 32, the Committee ’[***]
shall hold an inquiry in the prescribed manner and the Committee, on its own or on
the report from any person or agency as mentioned in sub-section
(1) of Section 32, may pass an order to send the child to the children's home
for speedy inquiry by a social worker or child welfare officer.
(2) The inquiry under this section shall be completed within four months of
the receipt of the order or within such shorter period as may be fixed by the
Committee :
Provided that the time for the submission of the inquiry report may be extended
by such period as the Committee may, having regard to the circumstances and for the

reasons recorded in writing, determine.
2[(3) The State Government shall review the pendency of cases of the
Committee at every six months, and shall direct the Committee to increase the
frequency of its sittings or may cause the constitution of additional Committees.
(4) After the completion of the inquiry, if, the Committee is of the opinion that
the said child has no family or ostensible support or is in continued need of care and
protection, it may allow the child to remain in the children's home or shelter home till
suitable rehabilitation is found for him or till he attains the age of eighteen years.]
34. Children's homes.—(1) The State Government may establish and maintain
either by itself or in association with the voluntary organisations, children's homes, in
every district or group of districts, as the case may be, for the reception of child in
need of care and protection during the pendency of any inquiry and subsequently for
their care, treatment, education, training, development and rehabilitation.
management of children's homes including the standards and the nature of services to
be provided by them, and the circumstances under which, and the manner in which,
the certification of a children's home or recognition to a voluntary organisation may
be granted or withdrawn.
3[(3) Without prejudice to anything contained in any other law for the time
being in force, all institutions, whether State Government run or those run by
voluntary organisations for children in need of care and protection shall, within a
period of six months from the date of commencement of the Juvenile Justice (Care
and Protection of Children) Amendment Act, 2006, be registered under this Act in
such manner as may be prescribed.]
35. Inspection.—(1) The State Government may appoint inspection
committees for the children's homes (hereinafter referred to as the inspection
committees) for the State, a district and city, as the case may be, for such period and
for such purposes as may be prescribed.
(2) The inspection committee of a State, district or of a city shall consist of
such number of representatives from the State Government 4[***], Committee,
voluntary organisations and such other medical experts and social workers as
may be prescribed.
36. Social auditing.—The Central Government or State Government may
monitor and evaluate the functioning of the Children's homes at such period and
through such persons and ‘institutions as may be specified by that Government.
37. Shelter homes.—(1) The State Government may recognise, reputed and
capable voluntary organisations and provide them assistance to set up and administer
as many shelter homes for juveniles or children as may be required.
(2) The shelter homes referred in sub-section (1) shall function as drop-in-
centres for the children in the need of urgent support who have been brought to such
homes through such persons as are referred to in sub-section
(1) of section 32.
(3) As far as possible, the shelter homes shall have such facilities as may be
prescribed by the rules.
38. Transfer.—(1) If during the inquiry it is found that the child hails from the
place outside the jurisdiction of the Committee, the Committee shall order the
transfer of the child to the competent authority having jurisdiction over the place of
residence of the child.
(2) Such juvenile or the child shall be escorted by the staff of the home in
which he is lodged originally.
(3) The State Government may make rules to provide for the travelling
allowance to be paid to the child.
39. Restoration.—(1) Restoration of and protection to a child shall be the
prime objective of any children's home or the shelter home.
(2) The children's home or a shelter home, as the case may be, shall take such
steps as are considered necessary for the restoration of and protection to a child
deprived of his family environment temporarily or permanently where such child is
under the care and protection of a children's home or a shelter home, as the case may
be.
(3) The Committee shall have the powers to restore any child in need of care
and protection to his parent, guardian, fit person or fit institution, as the case may be,
and give them suitable directions.
'[Explanation.—For the purposes of this section "restoration of and protection
of a child" means restoration to—
(a) parents;
(b) adopted parents;
(c) foster parents;
(d) guardians;
(e) fit person; or
(f) fit institution.]
CHAPTER IV REHABILITATION AND SOCIAL REINTEGRATION
40. Process of rehabilitation and social reintegration.—The rehabilitation and
social reintegration of a child shall begin during the stay of the child in a children's
home or special home and the rehabilitation and social reintegration
of children shall be carried out alternatively by (i) adoption, (ii) foster care,
(iii) sponsorship, and (iv) sending the child to an after-care organisation.
41. Adoption.—(1) The primary responsibility for providing care and
protection to children shall be that of his family
’[(2) Adoption shall be resorted to for the rehabilitation of the children who are
orphan, abandoned or surrendered through such mechanism as may be prescribed.

(3) In keeping with the provisions of the various guidelines for adoption issued
from time to time, by the State Government, or the Central Adoption Resource
Agency and notified by the Central Government, children may be given in adoption
by a court after satisfying itself regarding the investigations having been carried out,
as are required for giving such children in adoption.
(4) The State Government shall recognise one or more of its institutions or
voluntary organisations in each district as specialised adoption agencies in such
manner as may be prescribed for the placement of orphan, abandoned or surrendered
children for adoption in accordance with the guidelines notified under sub-section (3)
:
Provided that the children's homes and the institutions run by the State
Government or a voluntary organisation for children in need of care and protection,
who are orphan, abandoned or surrendered, shall ensure that these children are
declared free for adoption by the Committee and all such cases shall be referred to
the adoption agency in that district for placement of such children in adoption in
accordance with the guidelines notified under sub-section (3).]
(5) No child shall be offered for adoption—
(a) until two members of the Committee declare the child legally free for
placement in the case of abandoned children,
(b) till the two months period for reconsideration by the parent is over in the
case of surrendered children, and
(c) without his consent in the case of a child who can understand and
express his consent.
2[(6) The court may allow a child to be given in adoption—
(a) to a person irrespective of marital status; or

(b) to parents to adopt a child of same sex irrespective of the number of
living biological sons or daughters; or
(c) to childless couples.]
42. Foster care.—(1) The foster care may be used for temporary placement of
those infants who are ultimately to be given for adoption.
(2) In foster care, the child may be placed in another family for a short or
extended period of time, depending upon the circumstances where the child's own
parent usually visit regularly and eventually after the rehabilitation, where the
children may return to their own homes.
(3) The State Government may make rules for the purposes of carrying out the
scheme of foster care programme of children.
43. Sponsorship.—(1) The sponsorship programme may provide
supplementary support to families, to children's homes and to special homes to meet
medical, nutritional, educational and other needs of the children with a view to
improving their quality of life.
(2) The State Government may make rules for the purposes of carrying out
various schemes of sponsorship of children, such as individual to individual
sponsorship, group sponsorship or community sponsorship.
44. After-care organisation.—The State Government may, by rules made
under this Act, provide—
(a) for the establishment or recognition of after-care organisations and the
functions that may be performed by them under this Act;
(b) for a scheme of after-care programme to be followed by such after-care
organisations for the purpose of taking care of juveniles or the children
after they leave special homes, children homes and for the purpose of
enabling them to lead an honest, industrious and useful life;
(c) for the preparation or submission of a report by the probation officer or

any other officer appointed by that Government in respect of each
juvenile or the child prior to his discharge from a special home,
children's home, regarding the necessity and nature of after-care of such
juvenile or of a child, the period of such after-care, supervision thereof
and for the submission of report by the probation officer or any other
officer appointed for the purpose, on the progress of each juvenile or the
child;
(d) for the standards and the nature of services to be maintained by such
after-care organisations;
(e) for such other matters as may be necessary for the purpose of carrying
out the scheme of after-care programme for the juvenile or the child :
Provided that any rule made under this section shall not provide for such
juvenile or child to stay in the after-care organisation for more than three years :
Provided further that a juvenile or child over seventeen years of age but less
than eighteen years of age would stay in the after-care organisation till he attains the
age of twenty years.
45. Linkages and co-ordination.—The State Government may make rules to
ensure effective linkages between various governmental, non-governmental,
corporate and other community agencies for facilitating the rehabilitation and social
reintegration of the child.
CHAPTER V MISCELLANEOUS
46. Attendance of parent or guardian of juvenile or child.—Any competent
authority before which a juvenile or the child is brought under any of the provisions
of this Act, may, whenever it so thinks fit, require any parent or guardian having the
actual charge of or control over the juvenile or the child to be present at any
proceeding in respect of the juvenile or the child.
47. Dispensing with attendance of juvenile or child.—If, at any stage during
the course of an inquiry, a competent authority is satisfied that the attendance of the
juvenile or the child is not essential for the purpose of inquiry, the competent
authority may dispense with his attendance and proceed with the inquiry in the
absence of the juvenile or the child.
48. Committal to approved place of juvenile or child suffering from
dangerous diseases and his future disposal.—(1) When a juvenile or the child who
has been brought before a competent authority under this Act, is found to be
suffering from a disease requiring prolonged medical treatment or physical or mental
complaint that will respond to treatment, the competent authority may send the
juvenile or the child to any place recognised to be an approved place in accordance
with the rules made under this Act for such period as it may think necessary for the
required treatment.
(2) Where a juvenile or the child is found to be suffering from leprosy, sexually
transmitted disease, Hepatitis B, open cases of tuberculosis and such other diseases
or is of unsound mind, he shall be dealt with separately through various specialised
referral services or under the relevant laws as such.
49. Presumption and determination of age.—(1) Where it appears to a
competent authority that person brought before it under any of the provisions of this
Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the
competent authority shall make due inquiry so as to the age of that person and for
that purpose shall take such evidence as may be necessary (but not an affidavit) and
shall record a finding whether the person is a juvenile or the child or not, stating his
age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid
merely by any subsequent proof that the person in respect of whom the order has
been made is not a juvenile or the child, and the age recorded by the competent
authority to be the age of person so brought before it, shall for the purpose of this
Act, be deemed to be the true age of that person.
50. Sending a juvenile or child outside jurisdiction.—In the case of a juvenile
or the child, whose ordinary place of residence lies outside the jurisdiction of the
competent authority before which he is brought, the competent authority may, if
satisfied after due inquiry that it is expedient so to do, send the juvenile or the child
back to a relative or other person who is fit and willing to receive him at his ordinary
place of residence and exercise proper care and control over him, notwithstanding
that such place of residence is outside the jurisdiction of the competent authority; and
the competent authority exercising jurisdiction over the place to which the juvenile
or the child is sent shall in respect of any matter arising subsequently have the same
powers in relation to the juvenile or the child as if the original order had been passed
by itself.
51. Reports to be treated as confidential.—The report of the probation officer
or social worker considered by the competent authority shall be treated as
confidential :
Provided that the competent authority may, if it so thinks fit, communicate the
substance thereof to the juvenile or the child or his parent or guardian and may give
such juvenile or the child, parent or guardian an opportunity of producing such
evidence as may be relevant to the matter stated in the report.
52. Appeals.—(1) Subject to the provisions of this section, any person
aggrieved by an order made by a competent authority under this Act may, within
thirty days from the date of such order, prefer an appeal to the Court of
Session :
Provided that the Court of Session may entertain the appeal after the expiry of
the said period of thirty days if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
(2) No appeal shall lie from—
(a) any order of acquittal made by the Board in respect of a juvenile alleged
to have committed an offence; or
(b) any order made by a Committee in respect of a finding that a person is
not a neglected juvenile.
(3) No second appeal shall lie from any order of the Court of Session passed in
appeal under this section.
53. Revision.—The High Court may, at any time, either of its own motion or
on an application received in this behalf, call for the record of any proceeding in
which any competent authority or Court of Session has passed an order for the
purpose of satisfying itself as to the legality or propriety of any such order and may
pass such order in relation thereto as it thinks fit :
Provided that the High Court shall not pass an order under this section
prejudicial to any person without giving him a reasonable opportunity of being
heard.
54. Procedure in inquiries, appeals and revision proceedings.—(1) Save as
otherwise expressly provided by this Act, a competent authority while holding any
inquiry under any of the provisions of this Act, shall follow such procedure as may
be prescribed and subject thereto, shall follow, as far as may be, the procedure laid
down in the Code of Criminal Procedure, 1973 (2 of 1974) for trials in summons
cases.
(2) Save as otherwise expressly provided by or under this Act, the procedure
to be followed in hearing appeals or revision proceedings under this Act shall be, as
far as practicable, in accordance with the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
55. Power to amend orders.—(1) Without prejudice to the provisions for
appeal and revision under this Act, any competent authority may, on an application
received in this behalf, amend any order as to the institution to which a juvenile or
the child is to be sent or as to the person under whose care or supervision a juvenile
or the child is to be placed under this Act :
Provided that there shall be at least two members and the parties or its defence
present during the course of hearing for passing an amendment in relation to any of
its order.
(2) Clerical mistakes in orders passed by a competent authority or errors
arising therein from any accidental slip or omission may, at any time, be corrected by
the competent authority either on its own motion or on an application received in this
behalf.
56. Power of competent authority to discharge and transfer juvenile or child.—
The competent authority ’[***] may, notwithstanding anything contained in this Act,
at any time, order a child in need of care and protection or a juvenile in conflict with
law to be discharged or transferred from one children's home or special home to
another, as the case may be, keeping in view the best interest of the child or the
juvenile, and his natural place of stay, either absolutely or on such conditions as it
may think fit to impose :
Provided that the total period of stay of the juvenile or the child in a children's
home or a special home or a fit institution or under a fit person shall not be increased
by such transfer.
’[57. Transfer between children's homes under the Act, and juvenile homes of
like nature in different parts of India.—The State Government may direct any child
or the juvenile to be transferred from any children's home or special home within the
State to any other children's home, special home or institution of a like nature or to
such institutions outside the State in consultation with the concerned State
Government and with the prior intimation to the Committee or the Board, as the case
may be, and such order shall be deemed to be operative for the competent authority
of the area to which the child or the juvenile is sent.]
58. Transfer of juvenile or child of unsound mind or suffering from leprosy or
addicted to drugs.—Where it appears to the competent authority that any juvenile or
the child kept in a special home or a children's home or shelter home or in an
institution in pursuance of this Act, is suffering from leprosy or is of unsound mind
or is addicted to any narcotic drug or psychotropic substance, the competent
authority may order his removal to a leper asylum or mental hospital or treatment
centre for drug addicts or to a place of safety for being kept there for such period not
exceeding the period for which he is required to be kept under the order of the
competent authority or for such further period as may be certified by the medical
officer necessary for the proper treatment of the juvenile or the child.
59. Release and absence of juvenile or child on placement.—(1) When a
juvenile or the child is kept in a children's home or special home and on a report of a
probation officer or social worker or of Government or a voluntary organisation, as
the case may be, the competent authority may consider, the release of such juvenile
or the child permitting him to live with his parent or guardian or under the
supervision of any authorised person named in the order, willing to receive and take

charge of the juvenile or the child to educate and train him for some useful trade or
calling or to look after him for rehabilitation.
(2) The competent authority may also permit leave of absence to any juvenile
or the child, to allow him, on special occasions like examination, marriage of
relatives, death of kith and kin or the accident or serious illness of parent or any
emergency of like nature, to go on leave under supervision, 1206[for a period
generally not exceeding seven days], excluding the time taken in journey.
(3) Where a permission has been revoked or forfeited and the juvenile or the
child refuses or fails to return to the home concerned or juvenile to which he was
directed so to return, the Board may, if necessary, cause him to be taken charge of
and to be taken back to the concerned home.
(4) The time during which a juvenile or the child h absent from a concerned
home in pursuance of such permission granted under this section shall be deemed to
be part of the time for which he is liable to be kept in the
special home :
Provided that when a juvenile has failed to return to the special home on the
permission being revoked or forfeited, the time which elapses after his failure so to
return shall be excluded in computing the time during which he is liable to be kept in
the institution.
60. Contribution by parents.—(1) The competent authority which makes an
order for sending a juvenile or the child to a children's home or to a special home or
placing the juvenile under the care of a fit person or fit institution may make an
order requiring the parent or other person liable to maintain the juvenile or the child
to contribute to his maintenance, if able to do so, in the prescribed manner according
to income.
(2) The competent authority may direct, if necessary, the payment to be made
to poor parent or guardian by the Superintendent or the Project Manager of the home
to pay such expenses for the journey of the inmate or parent or guardian or both,
from the home to his ordinary place of residence at the time of sending the juvenile
as may be prescribed.
61. Fund.—(1) The State Government '[***] may create a Fund under such
name as it thinks fit for the welfare and rehabilitation of the juvenile or the child
dealt with under this Act.
(2) There shall be credited to the Fund such voluntary donations, contributions
or subscriptions as may be made by any individual or organisation.
(3) The Fund created under sub-section (1) shall be administered by the State
Advisory Board in such manner and for such purposes as may be prescribed.
62. Central, State, district and city Advisory Boards.—(1) The Central
Government or a State Government may constitute a Central or a State Advisory
Board, as the case may be, to advise that Government on matter relating to the
establishment and maintenance of the homes, mobilisation of resources, provision of
facilities for education, training and rehabilitation of child in need of care and
protection and juvenile in conflict with law and co-ordination among the various
official and non-official agencies concerned.
(2) The Central or State Advisory Board shall consist of such persons as the
Central Government or the State Government, as the case may be, may think fit and
shall include eminent social workers, representatives of voluntary organisations in
the field of child welfare, corporate sector, academicians, medical professionals and
1206 Subs, by Act No. 33 of 2006, Sec. 23 (w.e.f. 22-08-2006).

the concerned Department of the State Government.

(3) The district or city level inspection committee constituted under section 3q
of this Act shall also function as the district or city Advisory Board.
2
[62-A. Constitution of Child Protection Unit responsible for implementation of
the Act.—Every State Government shall constitute a Child Protection Unit for the
State and, such Units for ever)' District, consisting of such officers and other
employees as may be appointed by that Government, to take up matters relating to
children in need of care and protection and juveniles in conflict with law with a view
to ensure the implementation of this Act including the establishment and
maintenance of homes, notification of competent authorities in relation to these
children and their rehabilitation and co-ordination with various official and non-
official agencies concerned.]
63. Special juvenile police unit.—(1) In order to enable the police officers
who frequently or exclusively deal with juveniles or are primarily engaged in the
prevention of juvenile crime or handling of the juveniles or children under this Act to
perform their functions more effectively, they shall be specially instructed and
trained.
(2) In every police station at least one officer with aptitude and appropriate
training and orientation may be designated as the 'juvenile or the child welfare
officer' who will handle the juvenile or the child in co-ordination with the police.
(3) Special juvenile police unit, of which all police officers designated as
above, to handle juveniles or children will be members, may be created in every
district and city to co-ordinate and to upgrade the police treatment of the juveniles
and the children.
64. Juvenile in conflict with law undergoing sentence at commencement of
this Act.—In any area in which this Act is brought into force, the State Government
'[***] 2[shall direct] that a juvenile in conflict with law who is undergoing any
sentence of imprisonment at the commencement of this Act, shall, in lieu of
undergoing such sentence, be sent to a special home or be kept in fit institution in
such manner as the State Government thinks 3[***] fit for the remainder of the
period of the sentence; and the provisions of this Act shall apply to the juvenile as if
he had been ordered by the Board to be sent to such special home or institution or, as
the case may be, ordered to be kept under protective care under sub-section (2.) of
section 16 of this Act.
4[Provided that the State Government, or as the case may be the Board, may,
for any adequate and special reason to be recorded in writing, review the case of a
juvenile in conflict with law undergoing sentence of imprisonment, who has ceased
to be so on or before the commencement of this Act, and pass appropriate order in
the interest of such juvenile.
Explanation.—In all cases where a juvenile in conflict with law is undergoing a
sentence of imprisonment at any stage on the date of commencement of this Act, his
case including the issue of juvenility, shall be deemed to be decided in terms of
clause (.') of Section 2 and other provisions contained in this Act and the rules made
thereurder, irrespective of the fact that he ceased to be a juvenile on or before such
date and accordingly he shall be sent to the special home or a fit institution, as the
case may be, for the remainder of the period of the sentence but such sentence shall
not in any case exceed the maximum period provided in Section 15 of this Act.]
65. Procedure in respect of bonds.—Provisions of Chapter XXXIII of the
Code of Criminal Procedure, 1973 (2 of 1974) shall, as far as may be, apply to bonds
taken under this Act.

66. Delegation of powers—The State Government may, by the general order,
direct that any power exercisable by it under this Act shall, in such
circumstances and under such conditions, if any, as may be prescribed in the order,
be exercisable also by an officer subordinate to that Government 1207 [***].
67. Protection of action taken in good faith. —No suit or legal proceedings
shall lie against the State Government or voluntary organisation running the home or
any officer and the staff appointed in pursuance of this Act in respect of anything
which is in good faith done or intended to be done in pursuance of this Act or of any
rules or order made thereunder.
68. Power to make rules.—(1) The State Government may, by notification in
the Official Gazette, make rules to carry out the purposes of this Act.
2
[Provided that the Central Government may, frame model rules in respect of
all or any of the matters with respect to which the State Government may make rules
under this section, and where any such model rules have been framed in respect of
any such matter, they shall apply to the State until the rules in respect of the matter is
made by the State Government and while making any such rules, so far as is
practicable, they conform to such model rules.]
powers, such rules may provide for all or any of the following matters, namely :—
(i) the term of office of the members of the Board and the manner in wliich
such member may resign under sub-section (4) of section 4;
(ii) the time of the meetings of the Board and the rules of procedure in
regard to the transaction of business at its meeting under sub-section (1)
of section 5;
(iii) the management of observation homes including the standards and
various types of services to be provided by them and the circumstances
in which and the manner in which, the certification of the observation
home may be granted or withdrawn and such other matters as are
referred to in section 8;
(iv) the management of special homes including the standards and various
types of services to be provided by them and the circumstances in which
and the manner in which, the certification of the special home may be
granted or withdrawn and such other matters as are referred to in section
9;
(v) persons by whom any juvenile in conflict with law may be produced
before the Board and the manner of sending such juvenile to an
observation home under sub-section (2) of section 10;
(vi) matters relating to removal of disqualifications- attaching to conviction
of a juvenile under section 19;
(vii) the qualifications of the Chairperson and members, and the tenure for
which they may be appointed under sub-section (3) of section 29;
(viii) the time of the meetings of the Committee and the rules of procedure in
regard to the transaction of business at its meeting under sub-section (1)
of section 30;
(ix) the manner of making the report to the police and to the Committee and
the manner of sending and entrusting the child to children's home
pending the inquiry under sub-section (2) of section 32;
(x) the management of children's homes including the standards and nature
1207 Omitted by Act No. 33 of 2006, Sec. 5 (w.e.f. 22-08-2006).

of services to be provided by them, and the manner in which

certification of a children's home or recognition to a voluntary
organisation may be granted or withdrawn under sub section (2) '[and
the manner of registration of institutions under sub-section
(3) ] of section 34;
(xi) appointment of inspection committees for children's homes, their tenure
and purposes for which inspection committees may be appointed and
such other matters as are referred to in section 35;
(xii) facilities to be provided by the shelter homes under sub-section (3) of
section 37;
2[(xii-a) rehabilitation mechanism to be resorted to in adoption under sub-
section (2), notification of guidelines under sub-section (3) and the

manner of recognition of specialised adoption agencies under sub-
section (4) of Section 41;]
(xiii) for carrying out the scheme of foster care programme of children under
(xiv) for carrying out various schemes of sponsorship of children under sub-
section (2) of section 43;
(xv) matters relating to after-care organisation under section 44;
(xvi) for ensuring effective linkages between various agencies for facilitating
rehabilitation and social integration of the child under section 45;
(xvii) the purposes and the manner in which the Fund shall be administered
under sub-section (3) of section 61;
(xviii) any other matter which is required to be, or may be, prescribed.
3[(3) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament, while it is
in session, for a total period of thirty days which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form
or be of no effect, as the case may be, so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done
under that rule.]
4[(4)] Every rule made by a State Government under this Act shall be laid, as
soon as may be after it is made, before the Legislature of that State.

69. Repeal and savings.—(1) The Juvenile Justice Act, 1986 (53 of 1986) is
hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the
said Act shall be deemed to have been done or taken under the corresponding
provisions of this Act.
70. Power to remove difficulties.—(1) If any difficulty arises in giving effect
to the provisions of this Act, the Central Government may, by order, not inconsistent
with the provisions of this Act, remove the difficulty :
Provided that no such order shall be made after the expiry of the period of two
years from the commencement of this Act.
(2) However, order made under the section shall be laid, as soon as may be
after it is made, before each House of Parliament.
Appendix VII
The Protection of Women from Domestic

Violence Act 2005 ,
(43 of 2005)
[13th September, 2005]
An Act to provide for more effective protection of the rights of women guaranteed
under the Constitution who are victims of violence of any kind occurring within the family
and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as
follows :—
CHAPTER I
PRELIMINA
RY
Protection of Women from Domestic Violence Act, 2005.
(3) It shall come into force on such date1208 as the Central Government may, by
COMMENTS
This section provides for the short title, extent and commencement of Act.
The Act extends to the whole of India except to the State of Jammu and Kashmir in
the area of protection of women who are victims of violence of any kind occurring
within the family. As adequate steps have to be taken for administering the
provisions of this Act, provision has been made empowering the Central
Government to appoint the date of commencement of the Act, by notification in the
Official Gazette. [Notes on Clauses],
(a) "aggrieved person" means any woman who is, or has been, in a
domestic relationship with the respondent and who alleges to have been
subjected to any act of domestic violence by the respondent;
(b) "child" means any person below the age of eighteen years and includes
any adopted, step or foster child;
(c) "compensation order" means an order granted in terms of section 22;
(d) "custody order" means an order granted in terms of section 21;
(e) "domestic incident report” means a report made in the prescribed
form on receipt of a complaint of domestic violence from an aggrieved
person;
1208 Came into force on 26-10-2006, vide S.O. 1776(E), dated 17th October, 2006, published
in the Gazette of India, Extra, Pt. II, Sec. 3(ii), dated 17th October, 2006.
(f) "domestic relationship" means a relationship between two persons

who live or have, at any point of time, lived together in a shared household,
when they are related by consanguinity, marriage, or through a relationship in
the nature of marriage, adoption or are family members living together as a
joint family;
(g) "domestic violence" has the same meaning as assigned to it in section 3;
(h) "dowry" shall have the same meaning as assigned to it in section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961);
(i) "Magistrate" means the Judicial Magistrate of the first class, or as the
case may be, the
Appendix VII] The Protection of Women from Domestic Violence Act, 2005 Metropolitan
Magistrate, exercising jurisdiction under the Code of Criminal Procedure,
1973 (2 of 1974) in the area where the aggrieved person resides temporarily or
otherwise or the respondent resides or the domestic violence is alleged to have
taken place;
(j) "medical facility" means such facility as may be notified by the State
Government to be a medical facility for the purposes of this Act;
(k) "monetary relief means the compensation which the Magistrate may order the
respondent to pay to the aggrieved person, at any stage during the hearing of
an application seeking any relief under this Act, to meet the expenses incurred
and the losses suffered by the aggrieved person as a result of the domestic
violence;
(1) "notification" means a notification published in the Official Gazette and the
expression "notified" shall be construed accordingly;
(m) "prescribed" means prescribed by rules made under this Act;
(n) "Protection Officer" means an officer appointed by the State Government under
sub-section (1) of Section 8;
(o) "protection order" means an order made in terms of Section 18;
(p) "residence order" means an order granted in terms of sub-section (1) of section
19;
(q) "respondent" means any adult male person who is, or has been, in a domestic
relationship with the aggrieved person and against whom the aggrieved person has
sought any relief under this Act : Provided that an aggrieved wife or female living
in a relationship in the nature of a marriage may also file a complaint against a
relative of the husband or the male partner.
(r) "service provider" means an entity registered under sub-section (1) of section 10;
(s) "shared household" means a household where the person aggrieved lives or at
any stage has lived in a domestic relationship either singly or along with the
respondent and includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint family of which the
respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest in the
shared household;
(t) "shelter home" means any shelter home as may be notified by the State
Government to be a shelter home for the purposes of this Act.
COMMENTS
This section defines the various expressions occurring in the Act. The
definitions of "aggrieved person", "domestic relationship", "domestic violence",
"monetary relief", "Protection Officer", "protection order", "residence order",
"respondent", 'service provider" and "shared household" are some of them. As per the
Act, any woman who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to act of domestic violence by the respondent
is an aggrieved person. The expression "domestic relationship" means a relationship
between two persons who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are members of a family living
together as a joint family. The word "respondent" means any adult male person who
is, or has been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under the Act provided that an
aggrieved wife or female living in a relationship in the nature of marriage may also
file a complaint under the Act against a relative of the husband or male partn(Mifes
on Clauses]
CHAPTER II DOMESTIC VIOLENCE
3. Definition of domestic violence.—For the purposes of this Act, any act,
omission or commission or conduct of the respondent shall constitute domestic
violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or
well-being, whether mental or physical, of the aggrieved person or tends
to do so and includes causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to
coerce her or any other person related to her to meet any unlawful
demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the
aggrieved person.
Explanation I.—For the purposes of this section,—
(i) "physical abuse" means any act or conduct which is of such a nature
as to cause bodily pain, harm, or danger to life, limb, or health or impair
the health or development of the aggrieved person and includes assault,
criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes—
Appendix VII] (a) insults,

The Protection
ridicule,ofhumiliation,
Women from Domestic Violence
name calling Act,insults
and 2005 or 775
ridicule specially with regard to not having a child or a male child;
and
(b) repeated threats to cause physical pain to any person in whom
the aggrieved person is interested.
(iv) "economic abuse" includes—
(a) deprivation of all or any economic or financial resources to
which the aggrieved person is entitled under any law or custom
whether payable under an order of a court or otherwise or which
the aggrieved person requires out of necessity including, but not
limited to, household necessities for the aggrieved person and her
children, if any, stridhan, property, jointly or separately owned by
the aggrieved person, payment of rental related to the shared
household and maintenance;
(b) disposal of household effects, any alienation of assets whether
movable or immovable, valuables, shares, securities, bonds and the
like or other property in which the aggrieved person has an interest
or is entitled to use by virtue of the domestic relationship or which
may be reasonably required by the aggrieved person or her
children or her stridhan or any other property jointly or separately
held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or
facilities which the aggrieved person is entitled to use or enjoy by
virtue of the domestic relationship including access to the shared
household.
Explanation II.—For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes "domestic violence" under this
section, the overall facts and circumstances of the case shall be taken into
consideration.
COMMENTS
This section defines the expression "domestic violence". Any act, omission or
commission or conduct of the respondent shall amount to domestic violence in
certain circumstances. It includes causing physical abuse, sexual abuse, verbal and
emotional or economic abuse which are also explained in the section. In
determining whether any act, omission, commission or conduct of the respondent
constitutes "domestic violence", the overall facts and circumstances of the case shall
be a guiding factor. [Notes on Clauses]
CHAPTER III
POWER AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS,
ETC.
4. Information to Protection Officer and exclusion of liability of informant.—
(1) Any person who has reason to believe that an act of domestic • violence has
been, or is being, or is likely to be committed, may give information about it to the
concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for
giving in good faith of information for the purpose of sub-section (1).
COMMENTS
This section seeks to provide that any person who has reason to believe that an
act of domestic violence has been or is being committed, such person may inform the
Protection Officer. It also lays down that the person who is providing the information
in good faith shall be exempt from any civil or criminal liability for giving such
information. [Notes on Clauses]

5. Duties of police officers, service providers and Magistrate.—A police officer,
Protection Officer, service provider or Magistrate who has received a complaint of
domestic violence or is otherwise present at the place of an incident of domestic
violence or when the incident of domestic violence is reported to him, shall inform the
aggrieved person—
(a) of her right to make an application for obtaining a relief by way of
a protection order, an order for monetary relief, a custody order, a
residence order, a compensation order or more than one such order under
this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act,
1987 (39 of 1987);
(e) of her right to file a complaint under section 498-A of the Indian
Penal Code (45 of 1860), wherever relevant :
Provided that nothing in this Act shall be construed in any manner as to relieve a
police officer from his duty to proceed in accordance with law upon receipt of
information as to the commission of a cognizable offence.
COMMENTS
This section lays down the duties of a police officer, Protection Officer, service
provider and the Magistrate to inform the aggrieved person of her right to make an
application for one or more reliefs under the Act, the availability of services of service
providers and Protection Officers, her right to avail free legal services under the Legal
Services Authorities Act, 1987 and her right to file a complaint under section 498-A of
the Indian Penal Code, wherever relevant. It is also envisaged that this section shall not
relieve any police officer from his duty to proceed in accordance with law on receipt of
information as to commission of a cognizable offence. [Notes on Clauses]
6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection
Officer or a service provider requests the person in charge of a shelter home to provide
shelter to her, such person in charge of the shelter home shall provide shelter to the
aggrieved person in the shelter home.
COMMENTS
This section seeks to provide that the person in charge of a shelter home shall be
bound to provide shelter to the aggrieved person on being requested by the aggrieved
person or, on her behalf by a Protection Officer or a service provider. [Notes on
Clauses]
7. Duties of medical facilities.—If an aggrieved person or, on her behalf a
Protection Officer or a service provider requests the person in charge of a medical
facility to provide any medical aid to her, such person in charge of the medical facility
shall provide medical aid to the aggrieved person in the medical facility.
COMMENTS
This section seeks to provide that the person in charge of the medical facility
shall be bound to provide medical aid to the aggrieved person if requested by her or on
her behalf by a Protection Officer or a service provider.
[Notes on Clauses]
8. Appointment of Protection Officers.—(1) The State Government shall, by
notification, appoint such number of Protection Officers in each district as it may
consider necessary and shall also notify the are or areas within which a Protection
Officer shall exercise the powers and perform the duties conferred on him by or under
this Act.
(2) The Protection Officers shall as far as possible be women and shall possess
such qualifications and experience as may be prescribed.
Appendix
(3)VII]
The termsTheand
Protection of Women
conditions from Domestic
of service of theViolence Act, 2005
Protection Officer and the777
other
officers subordinate to him shall be such as may be prescribed.
COMMENTS
This section empowers the State Government to appoint by notification in the
Official Gazette, such number of Protection Officers in each District as it considers
necessary and also to notify the area in which such Protection Officer shall exercise the
powers conferred and discharge the duties imposed under the Act. It also provides that
the Protection Officers shall, as far as possible, be women and shall possess such
qualifications and experience as may be laid down by the Central Government, by
rules. The terms and conditions of service of the Protection Officer and the other
officers subordinate to him may also be regulated by rules. [Notes on Clauses]
9. Duties and functions of Protection Officers.—(1) It shall be the duty of the
Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in
such manner as may be prescribed, upon receipt of a complaint of domestic
violence and forward copies thereof to the police officer in charge of the
police station within the local limits of whose jurisdiction domestic
violence is alleged to have been committed and to the service providers in
that area;
(c) to make an application in such form and in such manner as may be
prescribed to the Magistrate, if the aggrieved person so desires, claiming
relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal
Services Authorities Act, 1987 (39 of 1987) and make available free of
cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or
counselling, shelter homes and medical facilities in a local area within the
jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so
requires and forward a copy of his report of having lodged the aggrieved
person in a shelter home to the police station and the Magistrate having
jurisdiction in the area where the shelter home is situate;
(g) to get the aggrieved person medically examined, if she has sustained bodily
injuries and forward a .copy of the medical report to the police station and the
Magistrate having jurisdiction in the area where the domestic violence is alleged to
have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with
and executed, in accordance with the procedure prescribed under the Code of Criminal
Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
(2) The Protection Officer shall be under the control and supervision of the
Magistrate, and shall perform the duties imposed on him by the Magistrate and the
Government by, or under, this Act.
COMMENTS
This section lays down the duties and functions of the Protection Officers. The
Protection Officer may assist the Magistrate in the discharge of his functions under the
Act, make a domestic incident report to the Magistrate, make an application to the
Magistrate if the aggrieved person so desires praying for issuance of a protection order,
ensure legal aid to the aggrieved person under the Legal Services Authorities Act,
1987, maintain a list of service providers, make available a safe shelter home if the
aggrieved person so requires, get the aggrieved person medically examined if she has

sustained bodily injuries, ensure that the order for monetary relief under section 20 of
the Act is complied with and executed in accordance with the provisions of the Code of
Criminal Procedure, 1973, and perform such other duties as may be laid down by the
Central Government, by rules. It also stipulates that the Protection Officer shall be
under the control and supervision of the Magistrate and perform the duties assigned to
him by the Magistrate and the Government by or under the Act.
[Notes on Clauses]
10. Service providers.—(1) Subject to such rules as may be made in this behalf,
any voluntary association registered under the Societies Registration Act, 1860 (21 of
1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other
law for the time being in force with the objective of protecting the rights and interests
of women by any lawful means including providing of legal aid, medical, financial or
other assistance shall register itself with the State Government as a service provider for
the purposes of this Act.
(2) A service provider registered under sub-section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved
person so desires and forward a copy thereof to the Magistrate and the Protection
Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the
medical report to the Protection Officer and the police station within the local limits
of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she
so requires and forward a report of the lodging of the aggrieved person in the shelter
home to the police station within the local limits of which the domestic violence took
place.
(3) No suit, prosecution or other legal proceeding shall lie against any service
provider or any member of the service provider who is, or who is deemed to be, acting
or purporting to act under this Act, for anything which is in good faith done or intended
to be done in the exercise of powers or discharge of functions under this Act towards
the prevention of the commission of domestic violence.
COMMENTS
This section provides for the registration of certain entities with the State
Government as a service provider for the purposes of the Act. Any voluntary
association registered under the Societies Registration Act, 1860 or a company
registered under the Companies Act, 1956 or under any other law, having the objective
of protecting the rights and interests of women by lawful means including providing
legal aid, medical, financial or other assistance shall be eligible to be registered under
the Act as per the procedure laid down by rules. This section also enumerates the
powers of a service provider. Such powers include the power to record the domestic
incident report, to get the aggrieved person medically examined and to ensure that the
aggrieved person is provided shelter in a shelter home, if she so requires. This section
further provides immunity to the service provider or any member of the service
provider for anything done or intended to be done in good faith under the Act, from any
suit, prosecution or other legal proceeding. [Notes on Clauses]
11. Duties of Government.—The Central Government and every State
Government, shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media
including the television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police
officers and the members of the judicial services are given periodic sensitization and
awareness training on the issues addressed by this Act;
Appendix
(c)VII]effective Theco-ordination
Protection of Women from Domestic
between Violence Act,
the services 2005
provided 779
by concerned
Ministries and Departments dealing with law, home affairs including law and order,
health and human resources to address issues of domestic violence is established and
periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to
women under this Act including the courts are prepared and put in place.
COMMENTS
This section stipulates the duties of the Central Government and the State
Governments. These duties are to give wide publicity to the provisions of the Act, to
give sensitization and awareness training on the issues addressed by the Act to
Government officers including police officers and members of judicial service, to
ensure effective co-ordination between Ministries and Departments dealing with law,
home affairs, law and order, health and human resources in the services provided by
them on the issues of domestic violence and to put in place protocols for the Ministries
and courts concerned with the delivery of services to women under the provisions of
the Act. [Notes on Clauses]
CHAPTER IV
PROCEDURE FOR OBTAINING ORDERS OF RELIEFS
12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer
or any other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act :
Provided that before passing any order on such application, the Magistrate shall
take into consideration any domestic incident report received by him from the
Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance
of an order for payment of compensation or damages without prejudice to the right of
such person to institute a suit for compensation or damages for the injuries caused by
the acts of domestic violence committed by the respondent :
Provided that where a decree for any amount as compensation or damages has
been passed by any court in favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate under this Act shall be set off
against the amount payable under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law
for the time being in force, be executable for the balance amount, if any, left after such
set off.
(3) Every application under sub-section (1) shall be in such form and contain
such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily
be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under
sub-section (1) within a period of sixty days from the date its first hearing.
COMMENTS
This section lays down that the aggrieved person or Protection Officer or any
other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under the Act including order for payment of
compensation or damages without prejudice to the rights of such person to institute a
suit for compensation or damages for the injuries sustained in the act of domestic
violence committed by the respondent. While disposing of an application under sub-
section (1), the Magistrate shall take into consideration any domestic incident report
received by him from the Protection Officer or the service provider. The amount paid or
payable to the aggrieved person by an order made by the Magistrate under the Act shall
be set off against the amount of decree of compensation or damages passed by any

court in favour of the aggrieved person. Sub-section (3) provides that the format and
particulars of the application under this section shall be as nearly as possible to the
format laid down by the Central Government by rules. Sub-sections (4) and
(5) provide that the Magistrate shall fix the first date of hearing of the application
ordinarily within three days of its receipt and shall endeavour to
dispose of every application within sixty days of the first hea{Mgtes on Clauses]
13. Service of notice.—(1) A notice of the date of hearing fixed under section 12
shall be given by the Magistrate to the Protection Officer, who shall get it served by
such means as may be prescribed on the respondent, and on any other person, as
directed by the Magistrate within a maximum period of two days or such further
reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form
as may be prescribed shall be the proof that such notice was served upon the respondent
and on any other person as directed by the Magistrate unless the contrary is proved.
COMMENTS
This section provides that a notice of the date of hearing of an application for
relief shall be given by the Magistrate to the Protection Officer who shall get it served
by such means as may be prescribed by the Central Government on the respondent and
on any other person within a maximum period of two days or such further reasonable
time as may be allowed by the Magistrate. A declaration of service of notice made by
the Protection Officer in the form set out by the Central Government by rules shall be a
proof of service of notice.
[Notes on Clauses]
14. Counselling.—(1) The Magistrate may, at any stage of the proceedings under
this Act, direct the respondent or the aggrieved person, either singly or jointly, to
undergo counselling with any member of a service provider who possess such
qualifications and experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub-section (1), he shall
fix the next date of hearing of the case within a period not exceeding two months.
COMMENTS
This section empowers the Magistrate to direct at any stage of the proceedings,
the respondent or the aggrieved person either singly or jointly to undergo counselling
with any member of a service provider. The member of the service provider providing
the counselling shall possess such qualifications and experience as may be laid down
by the Central Government, by rules. Where any counselling has been ordered under
this section, the Magistrate shall fix the next date of hearing of the case within a period
not exceeding two months.
[Notes on Clauses]
15. Assistance of welfare expert.—In any proceeding under this Act, the
Magistrate may secure the services of such person, preferably a woman, whether
related to the aggrieved person or not, including a person engaged in promoting family
welfare as he thinks fit, for the purpose of assisting him in discharging his functions.
COMMENTS
This section stipulates that the Magistrate may secure the services of a suitable
person preferably a woman whether related to the aggrieved person or not, including a
person engaged in promoting family welfare for the purposes of assisting the court in
the discharge of its functions. [Notes on Clauses]
16. Proceedings to be held in camera.—If the Magistrate considers that the
circumstances of the case so warrant, and if either party to the proceedings so desires,
he may conduct the proceedings under this Act in camera.
COMMENTS
This section provides for proceedings to be held in camera at the discretion of the
Appendix VII] or if either

Magistrate The Protection of Women
party to the from Domestic
proceedings Violence Act, 2005
so desires. 781
[Notes on Clauses]
17. Right to reside in a shared household.—(1) Notwithstanding anything
contained in any other law for the time being in force, every woman in a domestic
relationship shall have the right to reside in the shared household, whether or not she
has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared
household or any part of it by the respondent save in accordance with the procedure
established by law.
COMMENTS
This section lays down that irrespective of any contrary provision in any other
law, every woman in a domestic relationship shall have the right to reside in the shared
household and the aggrieved person shall not be evicted or excluded from the shared
household by the respondent except in accordance with the procedure established by
law. [Notes on Clauses]
18. Protection orders.—The Magistrate may, after giving the aggrieved person
and the respondent an opportunity of being heard and on being prima facie satisfied that
domestic violence has taken place or is likely to take place, pass a protection order in
favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by the
aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts used
or held or enjoyed by both the parties, jointly by the aggrieved person and
the respondent or singly by the respondent, including her stridhan or any
other property held either jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person
who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
COMMENTS
This section provides that the Magistrate may, after giving the aggrieved person
and the respondent an opportunity of being heard and on being prima facie satisfied that
domestic violence has taken place or is likely to take place, may pass a protection order
in favour of the aggrieved person. A protection order may contain an order prohibiting
the respondent from committing any act of domestic violence or aiding or abetting
therein, entering the place of employment of the aggrieved person or if the person
aggrieved is a child its school, or any other place frequented by the aggrieved person or
attempting to communicate in any form whatsoever with the aggrieved person without
the leave of the Magistrate, alienating any assets, operating bank lockers or bank
accounts belonging to both the parties jointly or to the respondent singly, including her
stridhan or any other property held jointly or separately by them, causing violence to
the dependents, other relatives or any person giving the aggrieved person assistance
from domestic violence or committing any other act as specified in the protection
order. [Notes on Clauses]
19. Residence orders.—(1) While disposing of an application under sub-section
(1) of section 12, the Magistrate may, on being satisfied that domestic violence has

taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other
manner disturbing the possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or equitable interest in
the shared household;
(b) directing the respondent to remove himself from the shared
household;
(c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person
resides;
(d) restraining the respondent from alienating or disposing off the shared
household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in the shared
household or to pay rent for the same, if the circumstances so require :
Provided that no order under clause (b) shall be passed against any person who is
a woman.
(2) The Magistrate may impose any additional conditions or pass any other
direction which he may deem reasonably necessary to protect or to provide for the
safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or
without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter
VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section
(3), the court may also pass an order directing the officer-in-charge of the nearest police
station to give protection to the aggrieved person or to assist her or the person making
an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may
Impose on the respondent obligations relating to the discharge of rent and other
payments, having regard to the financial needs and resources xv.au
of urtes ot the parties.
the parties.
(7) The Magistrate may direct the officer-in-charge of the police station whose
jurisdiction the Magistrate has been approached to assist in the implementation of the
protection order.
(8) The Magistrate may direct the respondent to return to the possession of the
aggrieved person her stridhan or any other property or valuable security to which she is
entitled to.
COMMENTS
This section provides that the Magistrate may on being satisfied that domestic
violence has taken place pass a residence order restraining the respondent from
dispossessing or disturbing the possession of the aggrieved person from the shared
household, directing the respondent to remove himself from the shared household,
restraining the respondent or his relatives from entering the shared household,
restraining the respondent from alienating or disposing of or encumbering the shared
household, restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate, or directing the respondent to secure
alternate accommodation for the aggrieved person of the same level as enjoyed by her
in the shared household or to pay rent for the same. It is also provided in this section
that no order shall be passed against any person who is a woman directing her to
remove herself from the shared household. Sub-section (2) empowers the Magistrate to
impose additional conditions and pass any other direction in order to protect the safety
of the aggrieved person or her child. Sub-section (3) provides for execution of a bond
by the respondent for prevention of the domestic violence. Sub-section (5) empowers
the Magistrate to pass an order directing the officer-in-charge of the concerned police
station to give protection to the aggrieved person or to assist in implementation of the
residence order. It is also provided in this section that the Magistrate may impose on the
respondent an obligation to discharge rent and other payments and to direct the
respondent to return to the aggrieved person her stridhan or any other property or
valuable security to which she is entitled. [Notes on Clauses]
20. Monetary reliefs.—(1) While disposing of an application under sub-section
(1) of section 12, the Magistrate may direct the respondent to pay monetary relief to
meet the expenses incurred and loss suffered by the aggrieved person as a result of the
domestic violence and such relief may include, but is not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any,
including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and
reasonable and consistent with the standard of living to which the aggrieved person is
accustomed.

impose on the respondent obligations relating to the discharge of rent and other
payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge of the police station in whose
jurisdiction the Magistrate has been approached to assist in the implementation of the
protection order.
(8) The Magistrate may direct the respondent to return to the possession of the
aggrieved person her stridhan or any other property or valuable security to which she is
entitled to.
COMMENTS
This section provides that the Magistrate may on being satisfied that domestic
violence has taken place pass a residence order restraining the respondent from
dispossessing or disturbing the possession of the aggrieved person from the shared
household, directing the respondent to remove himself from the shared household,
restraining the respondent or his relatives from entering the shared household,
restraining the respondent from alienating or disposing of or encumbering the shared
household, restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate, or directing the respondent to secure
alternate accommodation for the aggrieved person of the same level as enjoyed by her
in the shared household or to pay rent for the same. It is also provided in this section
that no order shall be passed against any person who is a woman directing her to
remove herself from the shared household. Sub-section (2) empowers the Magistrate to
impose additional conditions and pass any other direction in order to protect the safety
of the aggrieved person or her child. Sub-section (3) provides for execution of a bond
by the respondent for prevention of the domestic violence. Sub-section (5) empowers
the Magistrate to pass an order directing the officer-in-charge of the concerned police
station to give protection to the aggrieved person or to assist in implementation of the
residence order. It is also provided in this section that the Magistrate may impose on the
respondent an obligation to discharge rent and other payments and to direct the
respondent to return to the aggrieved person her stridhan or any other property or
valuable security to which she is entitled. [Notes on Clauses]
20. Monetary reliefs.—(1) While disposing of an application under sub-section
(1) of section 12, the Magistrate may direct the respondent to pay monetary relief to
meet the expenses incurred and loss suffered by the aggrieved person as a result of the
domestic violence and such relief may include, but is not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any,
including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and
reasonable and consistent with the standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum
payment or monthly payments of maintenance, as the nature and circumstances of the
case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under
sub-section (1) to the parties to the application and to the in-charge of the police
station within the local limits of whose jurisdiction the respondent resides.
Appendix
(5) VII] The Protection
The respondent shall payof Women from Domestic
the monetary reliefViolence
grantedAct,
to 2005 785
the aggrieved person
within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of
the order under sub-section (1), the Magistrate may direct the employer or a debtor of
the respondent, to directly pay to the aggrieved person or to deposit with the court a
portion of the wages or salaries or debt due to or accrued to the credit of the
respondent, which amount may be adjusted towards the monetary relief payable by the
respondent.
COMMENTS
This section empowers the Magistrate to pass orders for grant of monetary relief
to the aggrieved person from the respondent to meet the expenses incurred and losses
suffered including loss of earnings, medical expenses, loss to property and
maintenance of the aggrieved person and her children including maintenance under, or
in addition, to section 125 of the Code of Criminal Procedure, 1973 or any other law
for the time being in force. Sub-section (2) provides that the monetary relief shall be
adequate, fair and reasonable and consistent with the standard of living to which the
aggrieved person is accustomed. The section also empowers the Magistrate to order
lump sum or monthly payments for maintenance. Sub-section (6) provides that on the
failure of the respondent to make payments of the monetary relief, the Magistrate may
direct the employer or a debtor of the respondent to directly pay to the aggrieved
person or to deposit with the court a portion of the wages or salaries or debt due to or
accrued to the respondent. [Notes on Clauses]
21. Custody orders.—Notwithstanding anything contained in any other law for
the time being in force, the Magistrate may, at any stage of hearing of the application
for protection order or for any other relief under this Act grant temporary custody of
any child or children to the aggrieved person or the person making an application on
her behalf and specify, if necessary, the arrangements for visit of such child or children
by the respondent :
Provided that if the Magistrate is of the opinion that any visit of the respondent
may be harmful to the interests of the child or children, the Magistrate shall refuse to
allow such visit.
COMMENTS
This section lays down that notwithstanding anything contained in any other law
for the time being in force the Magistrate may, at any stage of hearing of the
application for grant of any relief, grant temporary custody of any child to the
aggrieved person or to the person making an application on her behalf and specify the
arrangements for visit of such child by the respondent. However, the Magistrate may
refuse to allow such visits if in his opinion such visits may be harmful to the interests
of the child. [Notes on Clauses]
22. Compensation orders.—In addition to other reliefs as may be
granted under this Act, the Magistrate may on an application being made by the
aggrieved person, pass an order directing the respondent to pay compensation and
damages for the injuries, including mental torture and emotional distress, caused by the
acts of domestic violence committed by that respondent.
COMMENTS
This section lays down that in addition to other reliefs which may be granted
under the Act, the Magistrate may, on an application by the aggrieved person, pass an
order directing the respondent to pay compensation or damages or both to the aggrieved
person for the injuries including mental torture and emotional distress caused to her by
domestic violence by the respondent.
[Notes on Clauses]
23. Power to grant interim and ex parte orders.—(1) In any proceeding before

him under this Act, the Magistrate may pass such interim order as he deems just and
proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the
respondent is committing, or has committed an act of domestic violence or that there is
a likelihood that the respondent may commit an act of domestic violence, he may grant
an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the
aggrieved person under section 18, section
19, section 20, section 21 or, as the case may be, section 22 against the respondent.
COMMENTS
This section provides for grant of interim orders by the Magistrate. He may also
pass ex parte orders on the basis of affidavits given by the aggrieved person.
[Notes on Clauses]
24. Court to give copies of order free of cost.—The Magistrate shall, in all cases
where he has passed any order under this Act, order that a copy of such order, shall be
given free of cost, to the parties to the application, the police officer-in-charge of the
police station in the jurisdiction of which the Magistrate has been approached, and any
service provider located within the local limits of the jurisdiction of the court and if any
service provider has registered a domestic incident report, to that service provider.
COMMENTS
This section provides for supply of copies of orders passed by the Magistrate free
of charge to the parties to the application, the concerned police officer and the service
provider. [Notes on Clauses]
25. Duration and alteration of orders.—(1) A protection order made under
section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or
the respondent, is satisfied that there is a change in the circumstances requiring
alteration, modification or revocation of any order made under this Act, he may, for
reasons to be recorded in writing pass such order, as he may deem appropriate.
COMMENTS
This section lays down that a protection order given under the Act shall be in force till
the aggrieved person applies for its discharge. In case there is a
change in the circumstances of a case, the Magistrate may, on application made by the
aggrieved person or the respondent pass an order altering, modifying or revoking any
order made under the Act. [Notes on Clauses]
26. Relief in other suits and legal proceedings.—(1) Any relief available under
sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a
civil court, family court or a criminal court, affecting the aggrieved person and the
respondent whether such proceeding was initiated before or after the commencement of
this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and
along with any other relief that the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under this Act, she shall be bound to inform the
Magistrate of the grant of such relief.
COMMENTS
This section provides that any relief available under, the Act may also be sought
in any legal proceeding before a civil court, family court or a criminal court and that
any relief which may be granted under the Act may be sought for in addition to and
also with reliefs sought for in a suit or legal proceeding before a civil or criminal court.
Sub-section (3) lays down that the aggrieved person shall be bound to inform the
Magistrate of the reliefs obtained by her in any proceeding other than proceedings
Appendix
under the VII]
Act. The Protection of Women from Domestic Violence Act, 2005
[Notes on Clauses]787
27. Jurisdiction.—(1) The court of Judicial Magistrate of the first class or the
Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries
on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other orders under this Act
and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.
COMMENTS
This section lays down that the Magistrate within the local limits of whose
jurisdiction the aggrieved person permanently or temporarily resides or carries on
business or is employed or the respondent resides or carries on business or is employed
or the cause of action has arisen, shall be the competent Magistrate to grant protection
orders and other orders and to try offences under the Act. Sub-section (2) provides that
any order made under the proposed legislation shall be enforceable throughout India.
[Notes on Clauses]
28. Procedure.—(1) Save as otherwise provided in this Act, all proceedings
under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be
governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
(2) Nothing in sub-section (1) shall prevent the court from laying down its own
procedure for disposal of an application under section 12 or under sub-section (2) of
section 23.

COMMENTS
This section provides that proceedings under the Act relating to ^application and
orders for reliefs and offence of breach of protection order or interim protection order
by the respondent shall be governed by the provisions of the Code of Criminal
Procedure, 1973. Sub-section (2) envisages that the court may lay down its own
procedure for disposal of applications for any relief or for ex parte order. [Notes on
Clauses]
29. Appeal.—There shall lie an appeal to the Court of Session within thirty days
from the date on which the order made by the Magistrate is served on the aggrieved
person or the respondent, as the case may be, whichever is later.
COMMENTS
This section provides that an appeal from the order made by the Magistrate shall
lie to the Court of Session within thirty days from the date of service of the order on the
aggrieved person or the respondent, whichever is later. [Notes on Clauses]
CHAPTER V MISCELLANEOUS
30. Protection Officers and members of service providers to be public
servants.—The Protection Officers and members of service providers, while acting or
purporting to act in pursuance of any of the provisions of this Act or any rules or orders
made thereunder shall be deemed to be public servants within the meaning of section
21 of the Indian Penal Code (45 of 1860).
COMMENTS
This section seeks to provide that the Protection Officer and members of service
providers shall be deemed to be public servants within the meaning of section 21 of the
Indian Penal Code while acting or purporting to act under any of the provisions of the
Act or the rules or orders made thereunder.
[Notes on Clauses]
31. Penalty for breach of protection order by respondent.—(1) A breach of
protection order, or of an interim protection order, by the respondent shall be an offence
under this Act and shall be punishable with imprisonment of either description for a
term which may extend to one year, or with fine which may extend to twenty thousand
rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the
Magistrate who has passed the order, the breach of which has been alleged to have been
caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame
charges under section 498-A of the Indian Penal Code (45 of 1860) or any other
provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case
may be, if the facts disclose the commission of an offence under those provisions.
COMMENTS
This section provides that a breach of protection order or an interim
protection order by the respondent shall be an offence under the Act punishable
with imprisonment of either description which may extend to one year or with fine
which may extend to twenty thousand rupees or with both. Sub-section (2)
provides that the offence of breach of protection order or interim protection order shall
be tried as far as practicable by the Magistrate who had passed the order which is
alleged to have been breached. Sub-section (3) provides that the Magistrate, while
framing charges regarding breach of order, may also frame charges under section 498-
A or any other provision of the Indian Penal Code or the Dowry Prohibition Act, 1961
in case the facts disclose the commission of any offence under those provisions.
[Notes on Clauses]
32. Cognizance and proof.—(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section
Appendix
(1) VII]of section
The
31Protection
shall be ofcognizable
Women fromand
Domestic Violence Act, 2005
non-bailable. 789
(2) Upon the sole testimony of the aggrieved person, the court may conclude that
an offence under sub-section (1) of section 31 has been committed by the accused.
COMMENTS
This section lays down that the offence of breach of protection order by the
respondent shall be a cognizable and non-bailable offence and the court may conclude
on the sole testimony of the aggrieved person that the offence has been committed.
[Notes on Clauses]
33. Penalty for not discharging duty by Protection Officer.—If any Protection
Officer fails or refuses to discharge his duties as directed by the Magistrate in the
protection order without any sufficient cause, he shall be punished with imprisonment
of either description for a term which may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.
COMMENTS
This section provides that any Protection Officer who fails or refuses to discharge
his duties as directed by the Magistrate in the protection order shall be punished with
imprisonment of either description which may extend to one year or with fine which
may extend to twenty thousand rupees or with both.
[Notes on Clauses]
34. Cognizance of offence committed by Protection Officer.—No
prosecution or other legal proceeding shall lie against the Protection Officer unless a
complaint is filed with the previous sanction of the State Government or an officer
authorised by it in this behalf.
COMMENTS
This section provides that no prosecution or other legal proceeding shall lie
against the Protection Officer except on a complaint filed with the previous sanction of
the State Government or an officer authorised by the State Government for the purpose.
[Notes on Clauses]
35. Protection of action taken in good faith.—No suit, prosecution or other legal
proceeding shall lie against the Protection Officer for any damage caused or likely to
be caused by anything which is in good faith done or intended to be done under this
Act or any rule or order made thereunder.
COMMENTS
This section provides that no suit, prosecution or other legal proceeding shall lie
against the Protection Officer for any damage caused or likely to be caused by anything
done or intended to be done in good faith under the Act or
any rule or order made thereunder. [Notes on Clauses]
36. Act not in derogation of any other law. —The provisions of this Act shall be
in addition to and not in derogation of the provisions of any other law, for the time
being in force.
COMMENTS
This section stipulates that the provisions of the Act shall be in addition to and
not in derogation of the provisions of any other law. [Notes on Clauses]
37. Power of Central Government to make rules.—(1) The Central Government
may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely :—
(a) the qualifications and experience which a Protection Officer shall possess
under sub-section (2) of section 8;
(b) the terms and conditions of service of the Protection Officers and the other
officers subordinate to him, under sub-section (3) of section 8;
(c) the form and manner in which a domestic incident report may be

made under clause (b) of sub-section (1) of section 9;
(d) the form and the manner in which an application for protection order may
be made to the Magistrate under clause (c) of sub-section
(1) of section 9;
(e) the form in which a complaint is to be filed under clause (d) of
(f) the other duties to be performed by the Protection Officer under
clause (i) of sub-section (1) of section 9;
(g) the rules regulating registration of service providers under sub-section (1) of
section 10;
(h) the form in which an application under sub-section (1) of section 12 seeking
reliefs under this Act may be made and the particulars which such
application shall contain under sub-section (3) of that section;
(i) the means of serving notices under sub-section (1) of section 13;
(j) the form of declaration of service of notice to be made by the Protection
Officer under sub-section (2) of section 13;
(k) the qualifications and experience in counselling which a member of the
service provider shall possess under sub-section (1) of section 14;
(1) the form in which an affidavit may be filed by the aggrieved person under
(m) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive sessions, and
if, before the expiry of the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have effect only
in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything
previously done under that rule.
COMMENTS
This section empowers the Central Government to make rules for carrying out the
provisions of the Act. It also provides that the rules made under the Act are required to
be laid before both the House of Parliament. [Notes on Clauses]
The Protection of Women from Domestic
Violence Rules 2006 , 1209
In exercise of the powers conferred by section 37 of the Protection of Women

from Domestic Violence Act, 2005 (43 of 2005), the Central Government hereby
makes the following rules, namely :—
1. Short title and commencement.—(1) These rules may be called the
Protection of Women from Domestic Violence Rules, 2006.
(2) They shall come into force on the 26th day of October, 2006.
2. Definitions.—In these rules, unless the context otherwise requires,—
(a) "Act" means the Protection of Women from Domestic Violence Act,
2005 (43 of 2005);
(b) "complaint" means any allegation made orally or in writing by any
1209 Vide G.S.R. No. 644 (E), dated 17th October, 2006 published in the Gazette of India, Extra., Pt.
II, Section 3 (i) dated 17th October, 2006.
Appendix III
person to the Protection Officer;

(c) "Counsellor" means a member of a service provider competent to
give counselling under sub-section (1) of section 14; ^
(d) "Form" means a form appended to these rules;
(e) "section" means a section of the Act;
(f) words and expressions used and not defined in these rules but defined
in the Act shall have the meanings respectively assigned to them in the Act.
3. Qualifications and experience of Protection Officers.—(1) The Protection
Officers appointed by the State Government may be of the Government or members
of non- government organizations :
Provided that preference shall be given to women.
(2) Every person appointed as protection officer under the Act shall have at
least three years experience in social sector.
(3) The tenure of a Protection Officer shall be a minimum period of three
years.
(4) The State Government shall provide necessary office assistance to the
Protection Officer for the efficient discharge of his or her functions under the Act and
these rules.
4. Information to Protection officers.—(1) Any person who has reason to
believe that an act of domestic violence has been, or is being, or is likely to be
committed may give information about it to the Protection Officer having jurisdiction
in the area either orally or in writing.
(2) In case the information is given to the Protection Officer under
Appendix VIII] The Protection of Women from Domestic Violence Rules, 2006 793
sub-rule (1) orally, he or she shall cause it to be reduced to in writing and shall
ensure that the same is signed by the person giving such information and in case the
informant is not in a position to furnish written information the Protection Officer
shall satisfy and keep a record of the identity of the person giving such information.
(3) The Protection Officer shall give a copy of the information recorded by
him immediately to the informant free of cost.
5. Domestic incident reports.—(1) Upon receipt of a complaint of domestic
violence, the Protection Officer shall prepare a domestic incident report in From I
and submit the same to the Magistrate and forward copies thereof to the police
officer in charge of the police station within the local limits of jurisdiction of which
the domestic violence alleged to have been committed has taken place and to the
service providers in that area.
(2) Upon a request of any aggrieved person, a service provider may record a
domestic incident report in Form I and forward a copy thereof to the Magistrate and
the Protection Officer having jurisdiction in the area where the domestic violence is
alleged to have taken place.
6. Application to the Magistrate.—(1) Every application of the aggrieved
person under section 12 shall be in Form II or as nearly as possible thereto.
(2) An aggrieved person may seek the assistance of the Protection Officer in
preparing her application under sub-rule (1) and forwarding the same to the
concerned Magistrate.
(3) In case the aggrieved person is illiterate, the Protection Officer shall read
over the application and explain to her the contents thereof.
(4) The affidavit to be filed under sub-section (2) of section 23 shall be filed in
Form III.
(5) The applications under section 12 shall be dealt with and the orders enforced
in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of
1974).
7. Affidavit for obtaining ex-parte orders of Magistrate.—Every affidavit for
obtaining ex-parte order under sub-section (2) of section 23 shall be filed in Form
III.
8. Duties and functions of Protection Officers.—(1) It shall be the
duty of the Protection Officer—
(i) to assist the aggrieved person in making a complaint under the Act if
the aggrieved person so desires;
(ii) to provide her information on the rights of aggrieved persons under
the Act as given 'n form IV which shall be in English or in a vernacular local
language;
(iii) to assist the person in making any application under section 12, or
sub-section (2) of section 23 or any other provision of the Act or the rules made
thereunder;
(iv) to prepare a "Safety Plan" including measures to prevent further
domestic violence to the aggrieved person, in consultation with the aggrieved
person in Form V, after making as assessment of the dangers involved in the
situation and on an application being moved under section 12;
(v) to provide legal aid to the aggrieved person, through the State Legal
Aid Services Authority;
(vi) to assist the aggrieved person and any child in obtaining medical aid
at a medical facility including providing transportation to get the medical
facility;
(vii) to assist in obtaining transportation for the aggrieved person and any
child to the shelter;

(viii) to inform the service providers registered under the Act that their
services may be required in the proceedings under the Act and to invite
applications from service providers seeking particulars of their members to be
appointed as Counsellors in proceedings under the Act under sub-section (1) of
section 14 or Welfare Experts under section 15;
(ix) to scrutinise the applications for appointment as Counsellors and
forward a list of available Counsellors to the Magistrate;
(x) to revise once in three years the list of available Counsellors by
inviting fresh applications and forward a revised list of Counsellors on the basis
thereof to the concerned Magistrate;
(xi) to maintain a record and copies of the report and documents
forwarded under sections 9,12,20,21,22,23 or any other provisions of the Act or
these rules;
(xii) to provide all possible assistance to the aggrieved person and the
children to ensure that the aggrieved person is not victimized or pressurized as a
consequence of reporting the incidence of domestic violence;
(xiii) to liaise between the aggrieved person or persons, police and
service provider in the manner provided under the Act and these rules;
(xiv) to maintain proper records of the service providers, medical facility
and shelter homes in the area of his jurisdiction.
(2) In addition to the duties and functions assigned to a Protection Officer
under clauses (a) to (h) of sub-section (1) of section 9, it shall be the duty of every
Protection Officer—
(a) to protect the aggrieved persons from domestic violence, in
accordance with the provisions of the Act and these rules;
(b) to take all reasonable measures to prevent recurrence of domestic
violence against the aggrieved person, in accordance with the provisions of the
Act and these rules.
9. Action to be taken in cases of emergency.—If the Protection Officer or a
service provider receives reliable information through e-mail or a telephone call or the
like either from the aggrieved person or from any person who has reason to believe
that an act of domestic violence is being or is likely to be committed and in a such an
emergency situation, the Protection Officer or the service provider, as the case may
be, shall seek immediate assitance of the police who shall accompany the Protection
Officer or the service provider, as the case may be, to the place of occurrence and
record the domestic incident report and present the same to the Magistrate without
any delay for seeking appropriate orders under the Act.
10. Certain other duties of the Protection Officers. —(1) The Protection
Officer, if directed to do so in writing by the Magistrate shall—
(a) conduct a home visit of the shared household premises and make
preliminary enquiry if the court requires clarification, in regard to granting ex-
parte interim relief to the aggrieved person under the Act and pass an order for
such home visit;
(b) after making appropriate inquiry, file a report on the emoluments,
assets, bank accounts or any other documents as may be directed by the court;
(c) restore the possession of the personal effects including gifts and
jewellery of the aggrieved person and the shared household to the aggrieved
person;
(d) assist the aggrieved person to regain custody of children and secure
rights to vist them under his supervision as may be directed by the court;
(e) assist the court in enforcement of orders in the proceedings under the
Act in the manner directed by the Magistrate, including orders under section 12,
section 18, section 19, section 20, section 21 or section 23 in such manner as
may be directed by the court;
(f) take the assistance of the police, if required, in confiscating any
weapon involved in the alleged domestic violence.
(2) The Protection Officer shall also perform such other duties as may be
assigned to him by the State Government or the Magistrate in giving effect to the
provisions of the Act and these rules from time to time.
(3) The Magistrate may, in addition to the orders for effective relief in any case,
also issue directions relating general practice for better handling of the cases to the
Protection Officers within his jurisdiction and the Protection Officers shall be bound
to carry out the same.
11. Registration of service providers.—(1) Any voluntary association registered
under the Societies Registration Act, 1860 (21 of 1860) or a company registered
under the Companies Act, 1956 (1 of 1956) or any other law for time being in force
with the objective of protecting the rights and interests of women by any lawful
means including providing of legal aid, medical, financial or other assistance and
desirous of providing service as a service provider under the Act shall make an
application under sub-section (1) of section 10 for registration as service provider in
Form VI to the State Government.
(2) The State Government shall, after making such enquiry as it may consider
necessary and after satisfying itself about the suitability of the applicant, register it as
a service provider and issue a certificate of such registration :
Provided that no such application shall be rejected without giving the applicant
an opportunity of being heard.
(3) Every association or company seeking registration under sub-section
(1) of section 10 shall possess the following eligibility criteria, namely :—
(a) It should have been rendering the kind of services it is offering under
the Act for at least three years before the date of application for registration
under the Act and these rules as a service provider.
(b) In case an applicant for registration is running a medical facility, or a
psychiatric counselling centre, or a vocational training institution, the State
Government shall ensure that the applicant fulfils the requirements for running
such a facility or institution laid down by the respective regulatory authorities
regulating the respective professions or institutions.
(c) In case an applicant for registration is running a shelter home, the
State Government shall, through an officer or any authority or agency
authorised by it, inspect the shelter home, prepare a report and record its finding
on the report, detailing that—
(i) the maximum capacity of such shelter home for intake of
persons seeking shelter;
(ii) the place is secure for running a shelter home for women and
that adequate security arrangements can be put in place for the shelter
home;
(iii) the shelter home has a record of maintaining a functional
telephone connection or other communication media for the use of the
inmates.
(3) The State Government shall provide a list of service providers in the
various localities to the concerned Protection Officers and also publish such list of
newspapers or on its website.
(4) The Protection Officer shall maintain proper records by way of
maintenance of registers duly indexed, containing the details of the service providers.
12. Means of service of notices.—(1) The notices for appearance in respect of
the proceedings under the Act shall contain the names of the person alleged to have
committed domestic violence, the nature of domestic violence and such other details
which may facilitate the identification of person concerned.
(2) The service of notices shall be made in the following manner, namely :—
(a) The notices in respect of the proceedings under the Act shall be
served by the Protection Officer or any person directed by him to serve the
notice, on behalf of the Protection Officer, at the address where the respondent
is stated to be ordinarily residing in India by the complainant or aggrieved
person or where the respondent is stated to be gainfully employed by the
complainant or aggrieved person, as the case may be.
(b) The notice shall be delivered to any person in charge of such place at
the moment and in case of such delivery not being possible it shall be pasted at
a conspicuous place on the premises.
(c) For serving the notices under section 13 or any other provision of the
Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of
1908) or the provisions under chapter VI of the Code of Criminal Procedure,
1973 (2 of 1974) as far as practicable may be adopted.
(d) Any order passed for such service of notices shall entail the same
consequences, as an order passed under Order V of the Civil Procedure Code,
1908 (5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of
1974) respectively, depending upon the procedure found efficacious for making
an order for such service under section 13 or any other provision of the Act and
in addition to the procedure prescribed under the Order V or Chapter VI, the
court may direct any other steps necessary with a view to expediting the
proceedings to adhere to the time limit provided in the Act.
(3) On a statement on the date fixed for appearance of the respondent, or a
report of the person authorised to serve the notices under the Act, that service has
been effected appropriate order shall be passed by the court on any pending
application for interim relief, after hearing the Complainant or the respondent, or
both.
(4) When a protection order is passed restraining the respondent from entering
the shared household or the respondent is ordered to stay away or not to contact the
petitioner, on action of the aggrieved person including an invitation by the aggrieved
person shall be considered as waiving the restraint imposed on the respondent, by the
order of the court, unless such protection order is duty modified in accordance with
the provision of sub-section (2) of section 25.
13. Appointment of Counsellors.(l) A person from the list of available
Counsellors forwarded by the Protection Officer, shall be appointed as a Counsellor,
under intimation to aggrieved person.
(2) The following persons shall not be eligible to be appointed as Counsellors
in any proceedings, namely :—
(i) any person who is interested or connected with the subject matter of
the dispute or is related to any one of the parties or to those who represent them
unless such objection is waived by all the parties in writing.
(ii) any legal practitioner who has appeared for the respondent in the case
or any other suit or proceedings connected therewith.

(3) The Counsellors shall as far as possible be women.
14. Procedure to be followed by Counsellors.—(1) The Counsellor shall work
under the general supervision of the court or the Protection Officer or both.
(2) The Counsellor shall convene a meeting at a place convenient to the
aggrieved person or both the parties.
(3) The factors warranting counselling shall include the factor that the
respondent shall furnish an undertaking that he would refrain from causing such
domestic violence as complained by the complainant ant in appropriate cases an
undertaking that he will not try to meet, or communicate in any manner through letter
or telephone, telephone, electronic mail or through any medium except in the
counselling proceedings before the counsellor or as permissibly by law or order of a
court of competent jurisdiction.
(4) The Counsellor shall conduct the counselling proceedings bearing in mind
that the counselling shall be in the nature of getting an assurance, that the incidence
of domestic violence shall not get repeated.
(5) The respondent shall not be allowed to plead any counter justification for
the alleged act of domestic violence in counselling and the fact that any justification
for the act of domestic violence by the respondent is not allowed to be a part of the
counselling proceeding should be made known to the respondent, before the
proceedings begin.
(6) The respondent shall furnish an undertaking to the Counsellor that he
would refrain from causing such domestic violence as complained by the aggrieved
person and in appropriate cases an undertaking that he will not try to meet, or
communicate in any manner through letter or telephone, e-mail, or through any other
medium except in the counselling proceedings before the Counsellor.
(7) If the aggrieved person so desires, the Counsellor shall make efforts of
arriving at a settlement of the matter.
(8) The limited scope of the efforts of the Counsellor shall be to arrive at the
understanding of the grievances of the aggrieved person and the best possible
redressal of her grievances and the efforts shall be to focus on evolving remedies or
measures for such redressal.
(9) The Counellor shall strive to arrive at a settlement of the dispute by
suggesting measures for redressal of grievances of the aggrieved person by taking
into account the measures or remedies suggested by the parties for counselling and
reformulating the terms for the settlement, wherever required.
(10) The Counsellor shall not be bound by the provisions of the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Civil Procedure, 1908 (5 of 1908), or
the Code of Criminal Procedure, 1973 (2 of 1974) and this action shall be guided by
the principles of fairness and justice and aimed at finding way to bring an end to
domestic violence to the satisfaction of the aggrieved person and in making such an
effort the Counsellor shall give due regard to the wishes and sensibilities of the
aggrieved person.
(11) The Counsellor shall submit his report to the Magistrate as expeditiously
as possible for appropriate action.
(12) In the event the Counsellor arrives at a resolution of the dispute, he shall
record the terms of settlement and get the same endorsed by the parties.
(13) The court may, on being satisfied about the efficacy of the solution and
after making a preliminary enquiry from the parties and after, recording reasons for
such satisfaction, which may include undertaking by the respondents to refrain from
repeating acts of domestic violence, admitted to have been committed by the

respondents, accept the terms with or without conditions.
(14) The court shall, on being so satisfied with the report of counselling, pass
an order, recording the terms of the settlement or an order modifying the terms of the
settlement on being so requested by the aggrieved person, with the consent of the
parties.
(15) In cases, where a settlement cannot be arrived at in the counselling
proceedings, the Counsellor shall report the failure of such proceedings to the Court
and the court shall proceed with the case in accordance with the provisions of the
Act.
(16) The record of proceedings shall not be deemed to be material on record in
the case on the basis of which any inference may be drawn or an order may be passed
solely based on it.
(17) The Court shall pass an order under section 25, only after being satisfied
that the application for such an order is not vitiated by force, fraud or coercion or any
other factor and the reasons for such satisfaction shall be recorded in writing in the
order, which may include any undertaking or surety
given by the respondent.
15. Breach of Protection Orders.—(1) An aggrieved person may report a
breach of protection order or an interim protection order to the Protection Officer.
(2) Every report referred to in sub-rule (1) shall be in writing by the informant
and duly signed by her.
(3) The Protection Officer shall forward a copy of such complaint with a copy
of the protection order of which a breach is alleged to have taken place to the
concerned Magistrate for appropriate orders.
(4) The aggrieved person may, if she so desires, make a complaint of breach of
protection order or interim protection order directly to the Magistrate or the Police, if
she so chooses.
(5) If, at any time after a protection order has been breached, the aggrieved
person seeks his assistance, the Protection Officer shall immediately rescue her by
seeking help from the local police station and assist the aggrieved person to lodge a
report to the local police authorities in appropriate cases.
(6) When charges are framed under section 31 or in respect of offences under
section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not
summarily triable, the Court may separate the proceedings for such offences to be
tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974)
and proceed to summarily try the offence of the breach of Protection Order under
section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(7) Any resistance to the enforcement of the orders of the Court under the Act
by the respondent or any other person purportedly acting on his behalf shall be
deemed to be a breach of protection order or an interim protection order covered
under the Act.
(8) A breach of a protection order or an interim protection order shall
immediately be reported to the local police station having territorial jurisdiction and
shall be dealt with as a cognizable offence as provided under sections 31 and 32.
(9) While enlarging the person on bail arrested under the Act, the Court may,
by order, impose the following conditions to protect the aggrieved person and to
ensure the presence of the accused before the court, which may include—
(a) an order restaining the accused from threatening to commit or
committing an act of domestic violence;

(b) an order preventing the accused from harassing, telephoning or
making any contact with the aggrieved person;
(c) an order directing the accused to vacate and stay away from the
residence of the aggrieved person or any place she is likely to visit;
(d) an order prohibiting the possession or use of firearm or any other
dangerous weapon;
(e) an order prohibiting the consumption of alcohol or other drugs;
(f) any other order required for protection, safety and adequate relief to
the aggrieved person.
16. Shelter to the aggrieved person.—(1) On a request being made by
the aggrieved person, the Protection Officer or a service provider may make a
request under section 6 to the person in charge of a shelter home in writing, clearly
stating that the application is being made under section 6.
(2) When a Protection Officer makes a request referred to in sub-rule (1), it
shall be accompanied by a copy of the domestic incident report registered, under
section 9 or under section 10 :
Provided that shelter home shall not refuse shelter to an aggrieved person under
the Act, for her not having lodged a domestic incident report, prior to the making of
request for shelter in the shelter home.
(3) If the aggrieved person so desires, the shelter home shall not disclose the
identity of the aggrieved person in the shelter home or communicate the same to the
person complained against.
17. Medical facility to the aggrieved person.—(1) The aggrieved person or the
Protection Officer or the service provider may make a request under section 7 to a
person in charge of a medical facility in writing, clearly stating that the application is
being made under section 7.
(2) When a Protection Officer makes such a request, it shall be accompanied
by a copy of the domestic incident report :
Provided that the medical facility shall not refuse medical assistance to an
aggrieved person under the Act, for her not having lodged a domestic incident
report, prior to making a request for medical assistance or examination to the
medical facility.
(3) If no domestic incident report has been made, the person- incharge of the
medical facility shall fill in Form I and forward the same to the local Protection
Officer.
(4) The medical facility shall supply a copy of the medical examination report
to the aggrieved person free of cost.
FORM I
[See rules 5 (1) and (2) and 17 (3)]
DOMESTIC INCIDENT REPORT UNDER SECTIONS 9 (b) AND 37 (2)
(c) OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 (43 of 2005)
1. Details of the complainant/aggrieved person :
(1) Name of the complainant/aggrieved person
(2) Age :
(3) Address of the shared household :
(4) Present Address :
(5) Phone Number, If any :
2. Details of Respondents :
, Name Relationship with the Address Telephone
No. aggrieved person No., If any
(a) Number of children :

(b) Details of children
Name Age Sex With whom at
present residing |
4. Incidents of domestic violence :

S. Date, place Person who caused Types of violence Remarks
No. and time of domestic violence
violence Physical violence
Causing hurt of any kind, please

specify
(i) Sexual al Violence
Please tick mark the column applicable.
• Forced sexual intercourse.
• Forced to watch pornography or
other obscene material
• Forcibly using you to entertain
others
• Any other act of sexual nature,
abusing, humiliating, degrading
or otherwise violative of your
dignity (please specify details in
the space provided below) :
(ii) verbal and emotional abuse
• Accusation/aspersion on your
character or conduct, etc.
• Insult for not bringing dowry,
etc.
• Insult for not having a male
child.
• Insult for not having any child.
• Demeaning, humiliating, or
undermining remarks/
statement.
• Ridicule.
• Name calling.
• Forcing you not to attend
school, college or any other
educational institution.
• Preventing you from taking up a

job.
• Preventing you from leaving the
House.
• Preventing you from meeting
any particular person.
• Forcing you to get married
against your will.
• Preventing you from marrying a
person of your choice.
• Forcing you to marry a person
of his/their own choice.
• Any other verbal or emotional
abuse, (please specify in the
space provided below)
(iii) Economic violence
• Not providing money for . \

maintaining you or your ... . .
children.
• Not providing food, clothes,
medicine, etc., for you or your
children.
• Forcing you out of the house
you live in.
• Preventing you from

accessing or using any part

of the house.
• Preventing or obstructing
you from carrying on your
employment.
• Not allowing you to take up
an employment.
• Non-payment of rent in case
of a rented accommodation.
• Not allowing you to use
clothes or articles of general
household use.
• Selling or pawning your
stridhan or any other
valuables without
informing you and without
your consent.
• Forcibly taking away your
salary, income or wages etc.
• Disposing your stridhan
• Non-payment of other bills
such as electricity, etc.
• Any other economic
violence (please specify in
the space provided below)
(iv) Dowry related harassment
Demands for dowry made,
please specify
any other detail with regard
to dowry, please specify.
Whether details of dowry
items, stridhan, etc, attached
with the form
Yes

• No
(v) any other information regarding acts of domestic violence against

you or your children
(Signature or thumb impression of the complainant/aggrieved person) 5. List of

documents attached
Name of document Date Any other detail
Medico-legal certificate
Doctor's certificate or any other prescription
List of Stridhan
Any other document
6.Order that you need under the protection of Women from Domestic Violence Act,
2005.
S. Orders Yes/No Any other detail
No.
(1) Protection order under section 18

(2) Residence order under section 19
(3) Maintenance order under section 20
(4) Custody order under section 21
(5) Compensation order under section 22
(6) Any other order (specify)
7. Assistance that you need
S. Assistance available Yes/No Nature of
No. assistance !
(1) (2) (3) (4)
(1) Counsellor
(2) Police assistance
(3) Assistance for initiating criminal proceedings
(4) Shelter home
(5) Medical facilities

(6) Legal aid ....... .......................
8. Instruction for the Police Officer assisting in registration of a Domestic

Incident Report :
Wherever the information provided in this Form discloses an offence under the
Indian Penal Code or any other law, the Police Officer shall—
(a) inform the aggrieved person that she can also initiate criminal
proceedings by lodging a First Information Report under the Code of Criminal
Procedure, 1973 (2 of 1974).
(b) if the aggrieved person does not want to initiate criminal proceedings,
then make daily diary entry as per the information contained in the domestic
incident report with a remark that the aggrieved person due to the intimate
nature of the relationship with the accused wants to pursue the civil remedies
for protection against domestic violence and has requested that on the basis of
the information received by her, the matter has been kept pending for
appropriate enquiry before registration of an FIR.
(c) if any physical injury or pain being reported by the aggrieved person,
offer immediate medical assistance and get the aggrieved person medically
examined.
Place : (Counter signature of Protection Officer/Service Provider)

Date : Name
Address :
(Seal)
Copy forwarded to :—
1. Local Police Station
2. Service Provider/Protection Officer
3. Aggrieved person
4. Magistrate
FORM II
[See rule 6 (1)]
APPLICATION TO THE MAGISTRATE UNDER SECTION 12 OF THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
(43 of 2005)
To
The Court of Magistrate
Application under section
...... of the Protection of
Women from Domestic
Violence Act, 2005 (43 of
2005)
SHOWETH :
1. That the application under section .............of Protection of Women from
Domestic Violence Act, 2005 is being filed alongwith a copy of Domestic Incident
Report by the :—

(a) Aggrieved person □
(b) Protection Officer □
(c) Any other person on behalf of
the aggrieved person □
(tick whichever is applicable)
2. It is prayed that the Hon’ble court may take cognizance of the
complaint/Domestic Incident Report and pass all/any of the orders, as deemed
necessary in the circumstances of the case,
(a) Pass protection orders under section 18 and/or
(b) Pass residence orders under section 19 and/or
(c) Direct the respondent to pay monetary relief under section 20 and/or
(d) Pass orders under section 21 of the Act and/or
(e) Direct the respondent to grant compensation or damages under section 22
and/or
(f) Pass such interim orders as the court deems just and proper;
(g) Pass any orders as deems fit in the circumstances of the case.
3. Orders required :
(i) Protection Order under section 18
• Prohibiting acts of domestic violence by granting an injunction
against the Respondents from repeating any of the acts mentioned in
terms of column 4 (a)/(b)/(c)/(d)/(e/)(f)/(g) of the application
• Prohibiting Respondent(s) from entering the school/college/
workplace
• Prohibiting from stopping you from going to your place of
employment
• Prohibiting Respondent(s) from entering the school/college/any
other place of your children
• Prohibiting from stopping you from going to your school
• Prohibiting any form of communication by the Respondent with you
• Prohibiting alienation of assets by the Respondent
• Prohibiting operation of joint bank lockers/accounts by the
Respondent and allowing the aggrieved person to operate the same
• Directing the Respondent to stay away from the
dependants/relatives/any other person of the aggrieved person to prohibit
violence against them
• Any other order, please specify ....................... ....................................
(ii) Residence Order under Section 19
• An order restraining Respondent(s) from
• Dispossessing or throwing me out from the shared household
• Entering that portion of the shared household in which I reside
• Alienating/disposing/encumbering the shared household
• Renouncing his rights in the shared household
• An order entitling me continued access to my personal effects
• An order directing Respondent(s) to
• Remove himself from the shared household
• Secure same level of alternate accommodation or pay rent for the same
• Any other order, please specify .............................................................
(iii) Monetary reliefs under section 20

• Loss of earnings, Amount claimed ................................... ...................
• Medical expenses Amount claimed
• Loss due to destruction/damage or removal of property from the control of

the aggrieved person,
Amount claimed .....................................................
• Any other loss or physical or mental injury as specified in clause 10(d)
Amount claimed ...............................................................................
• Total amount claimed ..................................................
• Any other order, please specify .............................................................
(iv) Monetary reliefs under section 20
• Directing the Respondent to pay the following expenses as monetary relief :
• Food, clothes, medications and other basic necessities, Amount per
month
• School fees and related expenses Amount .......................... per month
• Household expenses Amount ......................per month
• Any other expenses Amount ..... .................. per
month
Total .......................... per month
• Any other order, please specify ............................................................
(v) Custody Order under section 21
Direct the Respondent to hand over the custody of the child or children to
the—
• Aggrieved Person □ Any other person on her behalf, details of such person
(vi) Compensation order under section 22
(vii) Any other order, please specify ................................... ............................
4. Details of previous litigation, if any
(a) □ Under the Indian Penal Code, sections .........................Pending in the
court of .....................................................................................................
• Disposed of, details of relief .................................................................
(b) □ Under Cr. PC, sections .......... Pending in the court of...........................
(c) □ Under the Hindu Marriage Act, 1956 sections..............Pending in the
court of ......................................................................................................
• Disposed of, details of relief ................................................. ..............
(d) □ Under the Hindu Adoptions and Maintenance Act, 1956, sections
.................. Pending in the court of ............................................. ...........
(e) □ Application for maintenance, under section..............under ............. Act
• Interim maintenance Rs ................................. p.m.
• Maintenance granted Rs ................................ p.m.
(f) □ Whether Respondent was sent to Judicial Custody.
• For less than a week
• For less than a month
• For more than a month
Specify period ......................................................................................

(g) □ Any other order....................................................................................
Prayer :
It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to
grant the relief (s) claimed therein and pass such order or orders as this Hon'ble Court
may deem fit and proper under the given facts and circumstances of the case for
protecting the aggrieved person from domestic violence and in the interest of justice.
Place : Complainant/Aggrieved person through
Dated :
Counsel
VERIFICATION
Verified at ........................ (place) on this day of .................................... that the
contents of paras 1 to 12 of the above application are true and correct to the best of my
knowledge and nothing material has been concealed therefrom.
Deponent
Countersigature of Protection Officer with date.
FORM III [See rule 6(4) and 7]
AFFIDAVIT UNDER SECTION 23(2) OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 IN THE COURT
OF.................................................................. ,MM, ...........
P/S : ...................
IN THE MATTER OF :
VERSUS
Mr ............& Others .............. RESPONDENT
AFFIDAVIT
I, ................................... W/o Mr. ........................... R/o......................................
D/o Mr. ................................................ R/o ............................................... presently
residing at ............................................. do hereby solemnly affirm and declare on
oath as under :
1. That I am the Applicant in the accompanying Application for .................
filed for myself and for my daughter/son.
2. That I am the the natural guardian of .............
3. That being conversant with the facts and circumstances of the case I am
competent to swear this affidavit.
4. That the Deponent had been living with the Respondent/s at ...................
since ......... to.............
5. That the details provided in the present Application for the grant of
relief under section (s)............... have been entered into by me/at my
instructions.
6. That the contents of the application have been read over, explained to me in
English/Hindi/any other local language (Please specify. ).
7. That the contents of the said application may be read as part of this affidavit
and are not repeated herein for the sake of brevity.
8. That the application apprehends repetition of the acts of domestic violence
by the Respondent(s) against which relief is sought in the accompanying
application.
9. That that Respondent has threatened the Applicant that .........................
10. That the reliefs claimed in the accompanying application are urgent in as
much as the applicant would face great financial hardship and would be
forced to live under threat of repetition/escalation of acts of domestic
violence complained of in the accompanying application by the
Respondent(s) if the said reliefs are not granted on an ex-parte ad-interim
basis.
11. That the facts mentioned herein are true and correct to the best of my
knowledge and belief and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION
Verified at ........ on this ..........day of ..... 20 ... That the contents of the above
affidavit are correct to the best of my knowledge and belief and no part of it is false and
nothing material has been concealed therefrom.
DEPONENT
FORM IV
[See rule 8(l)(ii)]
INFORMATION ON RIGHTS OF AGGRIEVED PERSONS UNDER THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
1. If you are beaten up, threatened or harassed in your home by a person with
whom you reside in the same house, then you are faring domestic violence. The
Protection of Women from Domestic Violence Act, 2005, gives you the right to claim
protection and assistance against domestic violence.
2. You can receive protection and assistance under the Act, if the person(s) with
whom you are/were residing in the same house, commits any of the following acts of
violence against you or a child in your care and custody—
1. Physical Violence :
For example—
.(i) Beating,
(ii) Slapping,
(iii) Hitting,
(iv) Biting,
(v) Kicking,
(vi) Punching,
(vii Pushing,
)(viii Shoving or
)
(ix) Causing bodily pain or injury in any other manner.
2. Sexual Violence :
For example—
(i) Forced sexual intercourse;
(ii) Forces you to look at pornography or any other obscene pictures or
material ;
(iii) Any act of sexual nature to abuse, humiliate or degrade you, which is
otherwise violative of your dignity or any other unwelcome conduct
of sexual nature ;
(iv) Child sexual abuse.
3. Verbal and Emotional Violence :
For example—
(i) Insults;

(ii) Name-calling;
(iii) Accusations on your character or conduct etc. ;
(iv) Insults for not having a male child ;
(v) Insults for not bringing dowry etc. ;
(vi) Preventing you or a child in your custody from attending school,
college or any other educational institution ;
(vii) Preventing you from taking up a job ;
(viii)Forcing you to leave your job ;
(ix) Preventing you or a child in your custody from leaving the house ;
(x) Preventing you from meeting any person in the normal course of
events ;
(xi) Forcing you to get married when you do not want to marry ;
(xii) Preventing you from marrying a person of you own choice ;
(xiii) Forcing you to marry a particular person of his/their own choice ;
(xiv) Threat to commit suicide ;
(xv) Any other verbal or emotional abuse.
4. Economic Violence :
For example—
(i) Not providing you money for maintaining you or your children,
(ii) Not providing food, clothes, medicines etc. for you or your children,
(iii) Stopping you from carrying on your employment or,
(iv) Disturbing you in carrying on your employment,
(v) Not allowing you to take up an employment or,
(vi) Taking away your income from your salary, wages etc.,
(vii) Not allowing you. to use your salary, wages etc.,
(viii) Forcing you out of the house you live in,
(ix) Stopping you from accessing or using any part of the house,
(x) Not allowing use of clothes,_ articles or things of general household
use,
(xi) Not paying rent if staying in a rented accommodation, etc.
3. If an act of domestic violence is committed against you by a person/s with
whom you are/were residing in the same house, you can get all or any of the following
orders against the person(s)—
(a) Under section 18 :
(i) To stop committing any further acts of domestic violence on you or
your children,
(ii) To give you the possession of your stridhan, jewellery, clothes etc.,
(iii) Not to operate the joint bank accounts or lockers without permission
of the court.
(b) Under section 19 :
(i) Not to stop you from residing in the house where you were residing
with the person/s,
(ii) Not to disturb or interfere with your peaceful enjoyment of residence,
(iii) Not to dispose of the house in which you are residing,
(iv) If your residence is a rented property then either to ensure payment of
rent or secure any other suitable alternative accommodation which
offers you the same security and facilities as earlier residence,
(v) Not to give up the rights in the property in which you are residing
without the permission of the court,
(vi) Not to take any loan against the house/property in which you are
residing or mortgage it or create any other financial liability
involving the property,
(vii) Any or all of the following orders for your safety requiring the
person/s to—
(c) General Order :
(i) Stop the domestic violence complained /reported
(d) Special Orders :
(i) Remove himself/stay away from your place of residence or workplace
;
(ii) Stop making any attempts to meet you ;
(iii) Stop calling you over phone or making any attempts to communicate
with you by letter, e-mail etc. ;
(iv) Stop talking to you about marriage or forcing you to meet a particular
person of his/their choice for marriage ;
(v) Stay away from the school of your child/children, or any other place
where you and your children visit;
(vi) Surrender possession of firearms, any other weapon or any other
dangerous substance ;
(vii) Not to acquire possession of firearms, any other weapon or any other
dangerous substance and not to be in possession of any similar article
;
(viii)Not to consume alcohol or drugs with similar effect which led to
domestic violence in the past;
(ix) Any other measure required for ensuring your children's safety.
(e) An order for interim monetary relief under section 20 and 22 including —
(i) Maintenance for you or your children,
(ii) Compensation for physical injury including medical expenses,
(iii) Compensation for mental torture and emotional distress,
(iv) Compensation for loss of earning,
(v) Compensation for loss caused by destruction, damage, removal of
any property from your possession or control.
Note I.—Any of the above relief can be granted on an interim basis, as soon as
you make a complaint of domestic violence and present your application for any of the
relief before the court.
II. A complaint of domestic violence made in from I under the Act is called a
"Domestic Incident Report"
4. If yor are a victim of domestic violence, you have the following rights :
(i) The assistance of a Protection Officer and service providers to
inform you about your rights and the relief which you can get
under the Act under section 5.
(ii) The assistance of Protection Officer, service providers or the
officer-in-charge of the nearest police station to assist you in registering
your complaint and filing an application for relief under sections 9 and 10.
(iii) To receive protection for you and your children from acts of domestic
violence under section 18.
(iv) You have right to measures and orders protecting you against the particular

dangers or insecurities you or your child are facing.
(v) To stay in the house where you suffered domestic violence and to seek
restraint on other persons residing in the same house, from interfering with
or disturbing peaceful enjoyment of the house and the amenities, facilities
therein by you or your children under section 19.
(vi) To regain possession of your stridhan, jewellery, clothes, articles of daily
use and other household goods under section 18.
(vii) To get medical assistance, shelter, counselling and legal aid under sections
6, 7, 9 and 14.
(viii) To restrain the person committing domestic violence against you from
contacting you or communicating with you in any manner under section
18„
(ix) To get compensation for any physical or mental injury or any other
monetary loss due to domestic violence under section 22.
(x) To file complaint or applications for relief under the Act directly to
the court under sections 12, 18, 19, 20, 21, 22 and 23.
(xi) To get the copies of the complaint filed by you, applications made by you,
reports of any medical or other examinations that you or your child
undergo.
(xii) To get copies of any statements recorded by any authority in connection
with Domestic Violence.
(xiii) The assistance of the Protection Officer or the Police to rescue you from
any danger.
5. The person providing the form should ensure that the details of all the
registered service providers are entered in the manner and space provided below. The
following is the list of service providers in the area :
1 Name of Organization Service Provided Contact Details
Continue the list on a separate sheet, if necessary. .............

FORM V [See rule 8(l)(iv)]
SAFETY PLAN
1. When a Protection Officer, Police Officer or any other service provider is
assisting the woman in providing details in this from, then details in columns C and D
are to be filled in by the Protection Officer, Police Officer or any other service provider,
as the case may be, in consultation with the complainant and with her consent.
2. The aggrieved person in case of approaching the court directly may herself
provide details in columns C and D.
3. If the aggrieved person leaves columns C and D blank and approaches the
court directly, then details in the said columns are to be provided by the Protection
Officer to the court, in consultation with the complainant and with her consent.
1 A B C D E
SI. Violence by the Consequences of Apprehensions of Measur Orde

No. Respondent violence the Aggrieved es rs
mentioned in Person regarding required soug
Columns A suffered violence for ht
by the Aggrieved mentioned in safety from
Person Column A the
court 1
1. Physical violence Complainant's (a) Repetition
by the Respondent perception that she (b) Escalation
and her children are (c) Fear of injury
at risk of repetition (d) Any other,
of physical violence specify
2. Any sexual act (a) Depression (a) Repetition

abusing, (b) At risk of (b) Escalation
humiliating or repetition of such an (c) Any other,
degrading, act specify
otherwise (c) Facing attempts
violative of your to commit such acts
dignity
3. Attempts at (a) Physical injury (a) Repetition
strangulation (b) Mental ill (b) Any other,
health specify
(c) Any other,
specify

4. Beatings to the (a) Injury to the (a) Risk of
children children repetition
(b) Adverse (b) Adverse effect
mental effect of the of violent
same on the behaviour/
children environment on the
(c) Any other, child
specify
5. Threats to commit (a) Violent (a) Actually trying

suicide by the environment in the to commit the same
Respondent house (b) Repetition
(b) Threat to safety (c) Any other,
(c) Any other, specify
specify
6. Attempts to (a) Violent (a) Repetition,

commit suicide by environment in the escalation,
the Respondent house aggravation of the
(b) Insecurity, same
anxiety, (b) Mental trauma,
depression, mental pain
trauma (c) Any other,
(c) Any other, specify
specify
7. Psychological & (a) Depression (a) Repetition,
Emotional abuse (b) Mental trauma, escalation,
of the Complainant pain aggravation of the
like insults, (c) Unsuitable same
ridicule, name atmosphere for the (b) Mental trauma,
calling, insults for child/children pain
not having a male (d) Any other, (c) Any other,
child, false specify specify
accusation of
unchastity, etc.
8. Making verbal (a) Living in (a) Respondent

threats to cause constant fear may carry out the
harm to the (b) Mental trauma, mentioned threats
aggrieved pain (b) Mental trauma,
person/her (c) Any other, pain
children/parent specify (c) Any other,
s/relatives specify
\-
9
Forcing not to (a) Depression (a) Repetition
attend (b) Mental trauma, (b) Mental trauma,
school/college/ pain pain
any other (c) Any other, (c) Any other,
educational specify specify
institution
10. Forcing to get (a) Depression (a) Repetition

married when do (b) Mental trauma, (b) Mental trauma,
not want to/forcing pain pain
not to marry a (c) Fear of being (c) Any other
person of married forcibly
choice/forcing to (d) Any other
marry a particular
person of
Respondent/s
choice
11. Threatening to (a) Living in (a) Children might
kidnap the constant fear be kidnaped
child/children (b) Threat to the (b) Any other,
child/children's specify
safety
(c) Any other,
specify
12. Actually causing (a) Living in (a) Repetition
harm to the constant fear of (b) Escalation
aggrieved further harm (b) (c) Fear of injury
person/ Any other, specify (d) Any other,
children/relativ specify
es
13. Substance abuse (a) Living in (a) Physical
(drugs/alcohol) constant fear of violence after
abusive and violent consuming the same
behavior by the (b) Abusive
Respondent due to behaviour after
substance abuse consuming the same
(b) Deprived of (c) Non-payment of
leading a normal life maintenance/
(c) Any other, household
specify expenses
(d) Any other,
specify

14. History of (a) Constant fear of (a) Respondent has
criminal violence a tendency to violate
behaviour (b) Fear of revenge law and is likely to
by the Respondent flout orders passed
by the court against
him
(b) Respondent
might cause harm to
the aggrieved
person/children for
filing any further
proceedings
(c) Any other,
specify
15. Not provided (a) Driven towards (a) Have to face

money towards vagrancy and great hardship to
maintenance, destitution fulfill the needs and
food, clothes, (b) Any other, requirements of her
medicines, etc. specify child/children and
herself
(b) Any other,
specify
16. Stopped, (a) Not able to (a) Have to face

disturbed from fulfill the basic great hardship to
carrying on needs for yourself fulfill the needs and
employment or not and your children requirements of her
allowed to take up (b) Any other, child/children and
the same specify herself
(b) Any other,
specify
17. Forced out of the (a) Having no (a) Safety of her

house, stopped place to stay for child/children and
from accessing or yourself and your herself
using any part of children (b) Have to face
the house or (b) Being great hardship in
prevented from restricted to a providing shelter for
leaving the same particular area of her and her children
the house (c) Any other,
specify
18. Not allowed use of (a) Losing (a) The same may
clothes, articles or possession of the be disposed of by
things of general same the Respondent
household use (b) Not having (b) Any other
resources to replace
the same
19. Non-payment of (a) Being asked to (a) Losing shelter

rent in case of a leave the same by (b) Facing great
rented the owner on such hardship
accommodation non-payment (c) Any other,
(b) No alternate specify
accommodation to
go to
(c) No income to
afford a rented
accommodation
20. Sold, pawned (a) Loss of (a) The same may
stridhan or any valuables or be disposed of by
other valuables property the Respondent
without (b) Any other, (b) Any other,
informing or specify specify
without consent
21. Dispossessed of (a) Deprived of the (a) The same may
stridhan property in her be disposed of by
possession the Respondent
(b) Any other, (b) Fear of never
specify receiving the same
again
(c) Any other,
specify
22. Breach of Please specify Please specify
civil/criminal
court order,
specify order
Signature Signature
Aggrieved Persona Service Provider/
Protection Officer/
Police Officer
FORM VI
[See rule 11(1)]
FROM FOR REGISTRATION AS SERVICE PROVIDERS UNDER
SECTION 10(1) OF THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
1. Name of the applicant

2. Address alongwith Phone number, e-mail address, if any
3. Service being rendered □ Shelter
□ Psychiatric Counselling
□ Family Counselling
□ Vocational Training Centre
□ Medical Assistance
□ Awareness Programme
□ Counselling for a group of
people who are victims of
domestic violence and family
disputes
□ Any other, specify.
4. Number of persons employed for providing such services :
5. Whether providing the required services in your institution
requires certain statutory minimum professional qualification? If
yes, please specify and give details.
6. Whether list of names of the persons □ Yes and the capacity in
which they are working and their professional □ No
qualification is attached?
7. Period for which the services are □ 3 years being rendered. □ 4
years
□ 5 years
□ 6 years
□ More than 6 years
8. Whether registered under any □ Yes
law/regulation If yes, give the □ No registration
number
9. Whether requirements prescribed by any regulatory body or law
fulfilled?
If yes, the name and address of the regulatory body :
Note In case of a shelter home, details under columns 10 to 18 are to be
entered by registering authority after inspection of the shelter home.
10. Whether there is adequate space in □ Yes the shelter home □ No

11. Measured area of the entire premise
12. Number of rooms
13. Area of the rooms
14. Details of security arrangements available
15. Whether a record available for maintaining a
functional telephone connection for the use of inmates
for the last 3 years
16. Distance of the nearest dispensary/clinic/medical
facility
17. Whether any arrangement for regular □ Yes visits
by a medical professional has □ No been made?
If yes, name of the Medical Professional Address .
Contact number .....................................................

Qualification .........................................................
Specialization ........................................................
18. Any other facilities available, specify
Note :—In case of a counselling centre, details under columns 19 to 25 are to

be entered after inspection by registering authority
19. Number of counsellors in the centre
20. Minimum qualification of the counsellors, specify
□ Under graduate
□ Graduate
□ Post graduate
□ Diploma holder
□ Professional degree
□ Any, other, specify
21. Experience of the counsellors
□ Less than a year
□ 1 year
□ 2 years
□ 3 years
□ More than 3 years
22. Professional qualification/experience of counsellors
□ Professional degree
□ Experience in family counselling as a .......... (designation) in the ...............
(Name of the organization)
□ Experience in psychiatric counselling as .......... (designation) in the .........
(Name of the organization)
□ Any other relevant experience, please specify
820 Criminology and Penology [Appendix VIII

23. Whether a list of names of counsellors along with their qualifications has
been annexed
□ Yes □ No
24(A). Type of counselling provided
□ Supportive one-to-one counselling
□ Cognitive behavioural therapy (CBT) (Mental process that people use
to remember, reason, understand, solve problems and judge things)
□ Providing counselling to a group of people suffering
□ Family counselling
24(B). Facilities provided
□ Offering personal, professional and confidential counselling sessions
□ A safe environment to discuss problems and express emotions
□ Information on counselling services, support groups and mental health
care resources
□ One to one counselling and group work
□ Therapies, ongoing counselling and health related support
□ Any other, please specify
24(C). Any other service

(1) Services being provided
(2) Personnel appointed
(3) Statutory minimum qualifications required for providing such service

(4) Whether a list of names of Personnel engaged for providing service
along with their professional qualification is annexed
□ Yes □ No
(5) Any other details which the service provider desirous of registration
may provide
............................... If necessary continue on a separate sheet.
Place : Signature of authorised official

Designation :
Date (Seal)
Seal of the Court FORM VII Signature

[See rule 11(1)]

NOTICE FOR APPEARANCE UNDER SECTION 13(1) OF THE PROTECTION
OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
IN THE COURT OF
P/S : .................
IN THE MATTER OF :
Ms COMPLAINANT
VERSUS
Mr. RESPONDENT
To,
Mr
S/o
R/o .......................................................................................... .. ............
WHEREAS the Petitioner has filed an application(s) under section ...........of the
Protection of Women from Domestic Violence Act, 2005 (43 of 2005);
You are hereby directed to appear before this Court on the....day
of....20....at ...O clock in the ....................... noon personally or through a duly
authorised counsel of this Court to show cause why the relief(s) claimed by the
Applicant against you should not be granted, failing which the court shall proceed ex
parte against you.
Given under my hand and the seal of the Court of. ....................... on the ...... day
of .... 20....
Index
A person prison staff, 428 Admonition, 258 Adoption
irrespective of marital status, 599 on a through institutional or
warrant issued by a competent court, 356 non-institutional, 598
Abduction, 166 Abortion, 179 Absence of Adulteration, 131, 135
maximum security arrangements, 478 Adulteration of food
Accused is beaten or starved case of custodial menace to public health, 553
torture, 370 Act constituted Adultery, 168
certain special offences, 584 criminal offence, 13
Acting as a legal authority in Advantages
delinquent's life, 562 Actus reus, 11, of open prisons, 476 Advisory Board under
23 Adequate steps J.J. Act, 602, 616 Advocates of this school started
taken to eradicate corruption among the with the basic, 39 After-care Programme

provides necessary supervision and guidance empowers the Governor of States to grant
to juvenile, 599 After-care Services, 15, 50, 260, pardon, 488 Assist the prosecutor
466, 626, 644 conduct prosecution of cases in law courts,
Age of the 360 Atavism, 41, 42, 62 Auburn Prison System,
Offender, 557 AIDS, 300, 302, 270, 286, 419
330, 434, 651 Albert Reiss, 70
Alcohol is more contributory to criminality than Bacon, 38 Bail
other drugs, 209 Alcohol or drug abuse mental normally be granted, 400 Bail
impairment, 216 Alcoholism, 53, 64, 208 provisions for juveniles, 605 Bailable and
potential causes of sex crimes, 176 not bailable offences precisely classified,
Alcoholism and drug addiction 398 Bailey D.H., 343 Bar against
indicative of the irresponsibility and hand-cuffing, 447 Barnes & Teeters, 76, 127,
weakness, 208 Alfred Binet, 17, 58 All India Jail 525 Beccaria, 13, 19, 35, 37, 46, 100, 166, 251,
Committee, 474, 475, 507 All India Jail Manual, 289, 290, 422 Benefit of Clergy, 288, 525
430, 530 All murder cases Benefit of Doubt, 290 Bentham Jeremy, 12, 31, 46,
fall under Section 302, 303 All 100, 227, 246, 253, 278, 288 Bilateral agreements
the offenders be treated alike, 14 on extradition, 651
Allen Dr., 21 Bio-chemical researches hormonal
Amendment of law relating to rape, 195, 196, 200, imbalances, 57 Bio-physical
632 Amendments factors, 57, 167 Biological
law Relating to Rape, 195 American consideration
Criminal Law Courts, 388 American determines his acts and behaviour, 19
Prison System, 418 Amnesty, 274, 335, 368, Biological factors
494 An agricultural colony convicts, 483 An physiological maturity or low intelligence, also
account for delinquent behaviour among
Appraisal
juveniles, 575 *
Juvenile Justice System in India, 607 An
Biological, anthropological, psychiatric and
unprecedented debate
psychological factors play an important role in
on corruption of public officials, 653
crime causation, 70 Black-marketing, 19, 82, 105,
Analytical Penology, 32 Anti-Cyber Crime Unit,
127, 131 Blackstone, 8 Blood-feud, 4 Bomb-blasts,
124
7, 16, 80, 237 Bonger W.A., 17, 82, 100, 102 Born
Anti-social acts
criminals, 19, 27, 41, 44, 524 Borstal
disapproved by the society, 18 Anti-
another correctional institution, 613 Borstals,
social attitudes of children
501, 537, 578, 611, 613
improving the unfavourable surroundings,
institutions where adolescent offenders
615 Antuley's case, 93, 135, 260 Any system of
punishment considered very carefully, 50 receive training, 613 Boys and girls
Appellant filed under 18 years of age cannot be imprisoned,
mercy appeal, 321 608 Brahaspati Shastra, 258 British Parole
Approach of System, 509 British Prison System, 418, 421
penologists towards punishment, 242 Areas Brooklyn Plan, 527 Bureau of police research, 367
affected by cyber crimes Burt Cyril, 101, 575 Business labour racket, 115
banking and financial institutions, 130
Aristotle's Laws of Association, 63 Arnold Dr., 17, Caldwell, 32, 57, 252, 565
55 ARTHSHASTRA Californian
Prostitute Homes, 185 prison farms, 468 Capital punishment, 276,
Article 161 287, 288, 289,
Index 823
290, 293, 307, 391, 459, 637 criminology, 37, 46 Classical theory of
debated subject among the modem punishment infliction of sufficient pain, 621
penologists, 276 only to the offence of murder and
Classification of drugs, 214 of prisoners, 438
rape, 289
undoubtedly against the notions, 336 Classification of crimes, 9 Classified
Capitalistic economy criminals
contributes to enormous increase in crimes, urban and rural types, 45 Clinical
103 Case of school of criminology, 46 Clinical
cold-blooded murder, 324 service, 615 Co-relationship
Case of a between intelligence and recidivism, 619
political murder, 311 COFEPOSA, 21 Cohen Albert, 47, 76, 97
Case rested Collective response
circumstantial evidence, 319 in addressing women's victimization, 655
Causes Combating recidivism, 625 Common
Juvenile Delinquency, 574 adulterants used
Causes of crime various edibles and articles of foodstuffs, 136
biological nature of human behaviour, 42 Common man
Causing miscarriage is an lose faith in courts, 313
offence, 179 Cavan Ruth Shonle Commutation
Mrs., 171 Ceate 'fear'
of sentence, 494
to control his behaviour, 37 Central
Compared
Reserve Police Force, 343, 550 Certain
Parole and Probation, 506
offences
Competition Act, 2002, 141 Complexity
punishable under the law, 9
of tax laws in India
Certain Professions
for the tax-payers to evade taxes, 132
White Collar Crime, 132
Computer
Certified Schools, 611
an Instrument Facilitating Crime, 145
warranted criticism from several quarters,
unique characteristic of storing data, 144
611 Challenge to labelling theory seems to be
Computer hackers
justified, 49 Changed socio-economic conditions
paralysing the entire business, 147 Computer
of the present time, 636 Changes
related crimes, 146 thrown new challenges, 27
in the nature of crime, 380
Computerization, 416
Changes in living style
sex crime in varying degrees, 204
Characteristics of crime, 10 Child care
developmental function, 361 Child Welfare
Committees, 591, 616 care and protection of
children, 597 Children
an important asset, 570 Children below 18
years of age not be sentenced to death, 298
Children in need of care and protection, 574,
581
Children may learn criminal patterns
through the process of imitation, 79 Citizens
Voluntary Force, 378 Clandestine
prostitution, 186 Classical school of

Concept and Definition imparted vocational training, 481
of Probation, 521 Creating public awareness against these
Concept of crime, 25 crimes, 139 Crime
effect of modernisation and excessive an index of social pathology, 87 as a symptom
materialism, 109 more realistic than its legal of social disease, 166 as an anti-social, immoral or
definition, 73
sinful behaviour, 7 business and organised crime,
Concept of punishment, 242
648 natural phenomenon, 52 to accuse, 12 Crime
Condition of prisons
and morality, 11 Crime and social policy inter-
improved by making adequate arrangements,
related, 12 Crime control
431 Conditional release
of accused on bond, 356 Conditions of Parole, involves the services of well trained
511 Conflict theory of crime, 66 Conflicts personnel, 643 responsibility of police agency, 639
generally arise misunderstanding, 67 Congress on Crime detection
Prevention of Crime and Treatment of Offenders, first stage of criminal adjudication, 375
426 Consider crime Crime graph, 228 Crime investigation
social phenomenon, 50 Consideration major responsibility of police organisation,
before granting him pardon, 489 Constitution 349 Crime is defined
act forbidden and punishable by law, 12
protection to women against gender injustice,
Crime is learnt by
188 Constitution recognised
death sentence as a permissible punishment, association, 75
Crime prevention, 629, 631, 633, 635, 637, 639,
326 Construction cost fairly reduced, 476
641, 643, 645, 647, 649, 651, 653, 655, 657, 659
Contraband goods, 140 Contraceptives
criminality and domestic violence, 634 Crime
a Boon to Sex Offenders, 178 Control
rate
over Criminal Law Courts, 409 Control of
migration or immigration, 77 Crime Records
Juvenile delinquency, 361 Control of
Bureau, 230 Crime statistics, 226, 229, 230, 237
delinquency implies
different places, 228 indices of intensity of crimes,
ecological interpretation of sociological
226 legislators and criminal law administrators,
problems, 630 Convention on rights of child, 184
227 unreliability of crime statistics, 227 Crime
Copies of all documents
Statistics in India, 231 Crime Statistics of
including memo of arrest, 373 Corporeal
narcotic drug seizures, 234
death
Crime syndicate, 114, 117 Crime
fundamental rights, 310
syndicates
Correctional institution, 618, 626
highly skilled and professionalised gang-
Corruption
leaders, 114 Crime victims
perhaps the major obstacle, 640 rampant in
restorative justice for. 673
almost all walks of life, 87 Couples Crime without a victim, 9 Crimes
to childless, 599 against property, 231 against Women, 231
Court concluded huge damage to national economy and business
torture is a tradition, 456 ventures, 30 urban & rural areas, 85 Crimes
Court held against women, 194, 205
there are four major grounds, 445 Court of are partly the result of social system, 205
Criminal Appeal Crimes are caused
ranks next to the House of Lords, 386 Court a number of factors, 47 Crimes
of criminal trial, 383 Courts function are committed
tinder the judicial system, 383 because of their subjective tendency, 106
Craft teachers Crimes are often planned
in liquor shops and bars where alcohol is sold,
Index 825
209 Crimes differ from India, 390 Criminal Law—its nature, 21 Criminal
terrestrial crimes in four ways, 6 Crimes Psycho-neuro-pathology, 17 Criminal psychology,
related 17 Criminal rackets, 114, 117, 120
to computer network, 655 corrupting every wing of the governmental
Crimes relating to person mechanism, 120 Criminal sociology, 17
punishable with a term of imprisonment, 637 Criminalisation of Indian politics, 7 Criminality
Criminal as a part of social behaviour, 89 biological
product of community, 33 differences, 57 global phenomenon, 111 influenced
Criminal anthropology, 17 by the existing law and its sanctions, 90
understand the personality, 17 Criminality in human beings
Criminal behaviour attributed to their mental depravity, 208
learnt and not inherited, 74 outcome of a Criminals
variety of factors, 43 result of a learning less sensitive to pain, 41 originally inferior, 55
process, 42 Criminal Courts of British India, Criminals are classified
392 Criminal jurisprudence into two broad categories, 439 Criminals by
to provide protection, 336 Criminal law accident
an index of social progress, 13 rehabilitate the situational criminals, 625 Criminologists
corrigible offenders, 25 Criminal law and differed in their views, 18
procedure in India on the English law of crime,
384 Criminal Law Courts, 385, 388 in Ancient
Criminology
branch of criminal science, 18 Criminology
also offers
opportunity for social workers, 27 Critical
Appreciation, 484
Critical appreciation
Indeterminate sentence, 499 Critical
Appreciation Probation as a Correctional Measure,
563 Cross & Jones, 8 Culture conflict, 77 Custodial
measures
deprive the offender of his liberty, 633
Custodial torture
a routine police practice of interrogation, 368
in Prisons, 455 Custodial torture is an offence
under the Indian Penal Code, 372 Cyber crime
an unlawful act, 143 computer itself is a target,
145 preventive Legal Measures, 152 Cyber crimes,
6,17,109, 124,130,143,146, 152, 153, 161
a new variety of computer related crimes, 143
cover a wide range of illegal activities,
7
reasons for, 144
Cyber Crimes/Cases Registered and Persons
Arrested
under Information Technology Act, 160
Cyber Law
international Perspective, 162 Cyber stalker

collects all the personal information,
146
Cyber terrorism
domestic as well as international ramifications,
148
Dangers of international crime

faced squarely by all the nations, 381
Darwin's theory, 41
Data diddling, 150
David Matza, 576
Death penalty, 284, 287, 288, 290, 293, 294, 305,
324
the circumstances of the offender, 314 used
in cases of heinous crimes, 285 Death sentence
as an effective weapon, 284 delay in
execution of, 333 failure to impose, 314
mode of execution of, 334 punishment for
such offenders, 290 Decision
making, 562 Decision
of this Court
final in criminal cases, 388
Declaration of rights of man, 250 Deep-
rooted
caste differences and communal hatred, 66
Defendant showed signs of reform, 525 Definition
Open air prisons, 467
Definition of
White Collar Crime, 126
Deliberations involved
newly emerging forms of delinquency, 646
Delinquency
a form of behaviour, 572
Deoria Sati incident, 67
Determination of age of the
Juvenile, 587 Deterrent Effect
of Capital Punishment, 285
Deterrent Theory, 243 Devdasi
a form of prostitution, 186 Devdasi
System, 186 Development of
Police Organisation, 339 Dhananjaya
Chatterjee's execution, 321 Dharam Vira
Commission Report, 378
Dharamshastra 75 Difficult
writers ordeal was a living institution in in cases of death in police custody, 370 Digital
India, 5 Dharma, 28, 81 technology, 123 Direct inter-relation
ancient Indian criminal jurisprudence, 28 between the food prices and the crime rate,
Dharmashastra 100 Disintegration of family system laxity in
interpretation of Punishment, 262 parental control, 575 Distinction
Dharmasutra, 21, 391 Different sections between intent and motive, 26
put a strict bar on the juvenile, 592 Different types Distinction between
of criminal organisations operate in the criminal Crime Prevention and Treatment, 633
world, 112 Differential Association, 19, 47, 65, 74, Distinguished
Index 829
Parole and Indeterminate Sentence, 505

probation and suspended sentence, 524
Domestic violence
generally viewed as private affair, 635
Dominance of religion, 36 Dowry, 193
in the marriage of a daughter, 193 Dowry
death, 194, 231 Dowry deaths, 193 Dowry
Prohibition Act, 188 Dressier David, 114, 563
Drug abuse
an international problem, 212
Drug addiction, 208 Drug addiction
and crime, 208 Drug de-addiction
centres, 222
Drug offences
largely consensual, 619 Drug-addiction,
alcoholism troubles in family life, 214 Drug-
Addicts Crime, 215 Drug-trafficking, 28 Drugs
for relief from painful illness ultimately get
addicted, 210 Drunkenness
criminal responsibility, 222 Due to failures
frustration and emotional stress, 210
Durkheim Emile, 3, 52, 83, 85, 98, 236
E-mail bombing
sending large number of mails, 147 E-mail
Frauds (Spam), 149 Each sentence
accompanied by reasoned justification, 409
Earlier modes
of punishment, 243
Ecology of crime, 83, 86
Economic conditions
influence criminality, 82 Economic conditions
and crime, 100, 102, 103
Economic crimes, 102, 130, 231 white collar
offences, 10 Economic explanation of crime,
108 Economic factors
influence the nature and form of all social
patterns, 99 Economic factors contribute
delinquent behaviour directly or indirectly,
102 Economic offences
increasing by leaps and bound besides the
traditional crimes, 140 often subtle murders, 556
Ectomorphic structure, 60 Education in prisons
vocational training of inmates, 450 Effective
media
improve police-public relationship, 377
Effective substitute the offender, 78 Fast track courts, 413 Fast Tracks
indeterminate sentence, 500 Efficacy of Court
punishment, 248 Efficiency of parole novel experiment, 413 Fatwa-Alamgiri, 392
two fundamental considerations, 509 Fauzdar, 392 Female prisoners
Efficiency of parole administration separated from male wards, 458 Ferri Enrico,
undue political and executive pressures, 519 16, 40, 41, 43, 83,100, 249, 252 Ferri's classification
Ego of criminals, 43, 44 Financial scams, 27 Fine, 264
something the individual learns, 61 Elements mode of punishment, 266 Fire ordeal
of criminal law, 21 Elimination of association of consisted of four main forms, 5 First offenders
any police officer committed to indeterminate sentence, 497
from the inquiry process, 603 Elimination of First-offenders
violence against woman crime prevention and usually punished, 258 Fitzgerald P.J., 287,
criminal justice administration, 638 Elmira 387, 578 Flogging, 264 Focus is on making
Reformatory, 420, 508 Emotional distress environment safe, 629 Forensic Training Institute,
as a result of crime, 69 Empirical Calcutta, 643 Forfeiture of property, 264 Forms
researches of punishment, 264 Forms of punishment, 276
in juvenile delinquency, 615 Formulation of criminal policy depends on crime
Employment of women causation, 20 Foster care
demoralising effect on children, 104 used for temporary placement, 599
Encryption technology, 123 Endomorphic Frauds, 7
structure, 60 Enforcement agencies, 220 Engels Free will theory, 38, 40, 43, 46, 96
Fedrick, 48, 82, 95, 100 Engineering profession Freedom movement
underhand dealings, 133 Ensuring co-ordination direct impact on prison conditions in India,
and co-operation among various official and non- 429
official agencies and organisations, 602 Freud Sigmond Dr., 25, 61, 169, 172
Environment plays Freud's theory of criminal behaviour, 61
vital role in crime causation, 19 Friedman, 20
Essentials of Function of the jury
an Ideal Parole System, 518 Essentials of an decide questions of fact, 387
ideal penal system, 253 Excessive Reformation Functions of
caution against, 33 Executive clemency, 486, 487, the State Security Commissions, 364
489, 491, 493, 495, 497, 499, 501 Functions of Criminal Law Courts, 405
not for the benefit of the convict, 492 Fundamental principles modern criminal law, 22
Existing Prisons Act Fundamental rights
more than a century old, needs to be
not flee the persons, 455
thoroughly revised, 452
Furlough, 507
Experience with probation
very encouraging, 569 Explore the areas of greater Gambling racket, 115 Garofalo Raffaele, 40, 44,
police-public participation, 364 46, 72, 249, 252, 270, 288, 337 Gas chambers
execution of death sentence, 286 Gender-
Failure of
based criminality, 68 General principle of law
medical services, 435 Fake and misleading
the inquiry or trial in each case, 599 George
advertising white collar criminals operate, 133
Fake Employment Placement Rackets, 136 Family Sturup, 71, 622 Gifford Robert, 29
Gillin John, 8, 39, 46, 59,104, 420, 489, 504, 561
background
Gladstone Committee, 422, 424 Glueck Sheldon,
greatest influence on criminal behaviour of
53, 62, 280 Good time laws, 486, 487, 489, 491,
493, 494, 495, 497, 499, 501 further be liberalised,

451 introduced to ease the problem of discipline,
494
Goring, 42, 53, 59, 101, 619 Government also
raised
the plea of sovereign immunity, 371
Government of Lord Curzon
appointed another Commission, 342 Group
therapy, 68
Growing awareness of criminals
new methods of criminality, 642
Habitual offenders, 638 Habitually

addicted to crime
is one who is a criminal by habit, 625
Hackers, 7 Hacking, 147
most common form of cyber crime,
147
to cause wrongful loss, 156 Halsbury, 9 Hard
labour
to receive a humane meaning, 459 Hart
H.L.A., 31, 502 Healy William, 53, 76, 96 Hearing
informal and strictly confidential, 607 Henry
Goodard, 55 Heredity and crime, 52 Hi-tech
world
has given rise to cyber crimes, 6 Hijacking,
123 Historical perspective
of probation law in India, 529 Hoarding, 131
Hobbes, 36
Home guard police, 349 Homicides
classification of different types, 296 Homo-
sexuality, 168
cited in support of this contention, 70
common among the prisoners, 86 Homosexual
a passive individual, 178 Homosexuality is no
longer an offence committed in non-public place,
637 Hooton E.A., 17, 59 House of Lords
the highest Court, 385 Human psychology
emotional aspect of human nature, 46
Human Rights Commission, 187, 230 Human
trafficking, 183 Hume, 38
Identification, 361 of Media, 84 Informal and institutional living

Illicit drug trafficking, 213, 216
so complex, 213 small groups, 475 Information technology
Immoral Traffic Prevention Act, 117, 182, 183, evolution
188 y enabled human society to prosper and make
Important role tremendous progress, 152 Initiate steps to prevent
democratic set up of government, 351 juvenile delinquency, 604 Inmates
Imposition of sentence paid for the day's wages, 481 set at liberty for
without considering its impact, 660 good behaviour, 568 Inmates are paid wages
Imprisonment theL- work, 483 Inmates in these institutions
sentencing for incapacitating the criminals, go for work as free workers without any
275 Imprisonment for life, 272, 274 Improvement supervision, 472 Innocent convicts, 625 Inordinate
prison conditions, 453 Incarceration, 482, 521 delay in sentencing negatives its deterrent effect,
Incest, 177 253 Inquest Register maintain, 360 Insane
Incidence of juvenile delinquency in India, 609 criminals, 625 Insanity
Incorrigible prisoners, 419 Increase in crime-rate charge of crime, 56 Instability
enormous rise in the number of criminal common phenomenon in India, 80
cases, 408 Increasing role of psychology and Institution of Panchayat local self-
psychiatry government, 395 Institutional
understanding the problem of crime and rehabilitation through Borstal, 614
criminals, 644 Independent judiciary Institutions provide
sign of good health in a democracy, 412
adequate educational and vocational training
Indeterminate sentence, 486, 487, 489, 491, 493,
to young offenders, 614 Intelligence Quotient (IQ),
495, 497, 499, 501 from 14 to 24 months, 497 to be
58 Intelligence testing and crime, 58 Intensity of
fitting and appropriate, 496 India
sex desire
first women police station in the world, 348
among persons is never uniform, 171
Good time laws, 495 Indian Court system
Intention and motive distinguished, 26 Inter-
advantage of these technological
Relation between
opportunities, 416 Indian Criminal Courts, 392
Criminology, Penology and Criminal Law, 20
Indian Jail Reforms Committee, 429, 529 Indian
Inter-State gangs
Law on death penalty, 305 Indian Penal Code
organised crimes as a regular business, 119
classified into three major heads, 26
International Chamber of Commerce, 124
Indian Penal Code prescribes five types
International concern
of punishment, 272 Indian Penal Code
for the growing problem, 656 International
recognises
concern for juvenile justice, 580
eight major forms of sex offences, 177 Indian International conference on drug control (Vienna),
penal system less effective, 260 Indian Police Act, 212 International conference on global drug laws,
342, 369 Indian position 212 International Criminal Court, 123
victims of crime, 678 International Criminal Courts need for, 415
Indian prisons, 432, 459 International Criminal Tribunal, 123
Indian women International Labour Organisation, 645
to take up outdoor jobs, 94 Indigenous system International Penal & Penitentiary Commission
police in India, 341 Indiscreet opening and prison Reforms, 426 International perspective
of educational institutions, 236 Crime Prevention, 645 of police, 381 Internet
Individualised treatment, 246, 257 frauds, 149 Internet services, 151 INTERPOL, 648
Industrial development in India pattern searching and chasing of international
of Indian society, 169 Influence criminals, 381 Interrogation of
Index 833
offenders and suspects, 358 conflict with law., 584 Juvenile Justice in India,
Interrogation of the arrestee 581 Juvenile Justice (Care and Protection of
recorded in a register, 373 Children) Act, 533, 574, 583, 584, 586, 595, 603,
Investigating police 608 Juvenile Justice Board, 602, 604, 606, 608, 616
separated from law and order, 366 make suitable enquiries, 534 order the release
Investigation of juvenile, 594 Juvenile Justice in U.K., 577
to collect evidence, 357 Juvenile Justice in U.S.A., 578 Juvenile offenders,
Investigation of 527 Juveniles in trouble
Cyber Crimes, 160 provided with carefully constructed legal
Isolated life of protection, 581
criminals in jails, 68
Isolation of Prisoners in Katherine S. Williams, 42
solitary cells, 420 Kathleen J. Smith, 618
Kautilya's Arthashastra, 13, 258, 391, 428
Jail by the Supreme Court Best Kenny Dr., 8,18
Bakery case, 410 Jail reforms Kotwals, 341
committee, 429 Jails in this Krishna Iyer V.R., 29, 67, 254, 538
country
a byword for human degradation, 453 James Labelling Theory, 48
Fitzjames Stephen, 277 James Mills, 502 Jean Labour rackets, 115
Bodin, 36 Jerome Frank, 388 Jerome Hall, 354 Job commercial transactions are involved, 115
handled only by well trained and qualified Labour unions
professionals, 238 Judicial against their employers, 94 Law
Trend, 513 Judicial a means to an end, 21 Law and order
mandates maintaining machinery of the State, 344
Law and order in society
regarding prisoners, 459 Judicial by eliminating offenders, 405
Ombudsman plea for setting up, 415 Judicial Law Commission of India, 130, 131, 178, 187, 294,
sentencing, 277, 278, 281, 486 personal 365, 407, 637 Law is well settled
responsibility of the Judge, 279 by reason of the decisions of this Court, 317
related to the forms of punishment, 277 Law of crimes
Judicial statistics, 228 Judicial not permit ex post facto legislation, 24 Law
Trend relating
compensatory relief to victims, 680 Juvenile Justice in India, 583 Law
Judicial trend towards probation, 539 relating to bail, 398 League of Arab States,
Judiciary attitude 645, 649 Legal crimes
towards police, 377 termed as traditional crimes, 9 Legal
Justice delayed Functions of Police, 354 Legal reforms
justice denied, 405 Justifications safeguarding victim's rights, 675 Legal
which the Juveniles Services Authorities Act, 396 Legislative
advance against their Delinquent act, 576
History
Juvenile Courts
Probation law in India, 530 Legitimate
differed from ordinary courts, 577 Juvenile
business and professional criminals
delinquency, 381, 571, 572, 573, 575 inter-connected through political grafts, 117
in other Countries, 579 not a nationwide Length
phenomenon, 609 variety of anti-social behavior of
of his residence, 445 Leo
a child, 573
Page Sir, 249 Life
Juvenile in conflict with law, 574, 589 Juvenile in
imprisonment of fact, 23 Mistake of Law, 23 Mobilisation of

for various offences, 304 resources
Lindsmith, 64 for running these Homes, 602 Mobility, 76
Lionel Fox Sir, 275, 424, 454, 467, 623 Lock-ups Mobility among criminals
insufficient accommodation, 458 greater than those of non-criminals, 79 Mode
Locke, 36 of treatment of young offender remove him from
Lodging of undertrials in jail his home to a correctional institution, 578 Model
reduced to bare minimum, 432 Lok Prison, 476
Adalats, 396, 397 Modem crime and methods of criminals
are now having a statutory foundation, 397 highly sophisticated, 350 Modem
quick and cheap justice, 34 Lok Sabha, 297 criminologists
Lombroso Cesare, 17, 40, 41, 43, 52, 53, 62, 270 engaged in working out, 16 realistic, 19
Modem penologists
M' Naghten's Rule, 54, 216 Machiavelli, 36 substituted new forms of penal sanctions for
Main Causes the old methods of sentencing, 251 Modem prison
of Drug Addiction, 209 Main policy and techniques of handling criminals, 474
characteristics of open prisons, Modem pHsons
475 organised criminals, 118 better than that in the past, 448 Modem
Maitland, 248 techniques new challenges, 352 of treating the
Making scheduled and unscheduled visits offenders, 454 Modem western trend favours
place of delinquents, 562 Malimath Committee deletion of all such offences, 637 Modernisation of
Report on Police Functioning, 380 Management police, 379 Modes of execution of death sentence,
of open jail institutions, 476 285 Money
Manifold problems illegally downloaded in transit, 150 Money
of socio-economic and political dimensions, 87 laundering, 150, 213 Money laundering racket,
Manner 110 Monogenetic explanation
the offence of murder was committed, 311 human conduct lost its validity, 40
Mannheim H., 82,102 Manu, 253, 293 Manuel Monopolies Inquiry Commission Report,
Lopez Rey, 15 Manusmiriti, 13 Marital rape 135
common form of domestic violence, 187 Montesquie, 38
Marriage between the spouses related by blood, Most of the States introduced
173 Martin Luther, 36 Marxists Theory, 101 probation law for their offenders, 536 Motor
Matters relating Vehicle Act
Central grants and budgetary allotments, 364 compensation to victim under, 680
Meaning of 'cruelty' Movement
physical abuse' but extends to 'harassment' of Juvenile Justice, 571 Mulla Jail Reforms
wife, 411 Medhatithi, 36 Committee, 431 Multi-crore fake stamp scam, 118
Medical Termination of Pregnancy Act, 179
Multiple Causation Theory, 50 Multiple factor
Medieval period, 35 Members of the judiciary
approach to crime prevention, 76 Murder
sharply divided, 305 Mens rea, 11, 22, 50, 128
not a crime, 3
Mental disorder
Murderers
is suffering from some disease, 54 Mental
called endemic criminals, 44
disorder and criminality, 54
Mutilation, 264
Mentally depraved criminals classified, 53
another kind of corporal punishment, 264
Merciless living
better than merciful killing, 302 Mesomorphic Nani Palkhiwalla, 354, 406 Narcotic drug
structure, 60 Miss Marry Carpenter, 577 Mistake
Index 835
traits of criminal behaviour, 64 Narcotics effectively incorporated, 424

Control Bureau, 221 Observation Homes, 581, 592 Occasional
offences relating to drug-trafficking, 230 criminals, 625 Offences
Narsimha Rao's case, 92, 93 National Advisory against the Government, 304 begging,
Board on Drug Control, 211 National Committee gambling and drinking, 69 cognizable or non-
on Drug Addiction, 211 cognizable, 401 Offences against children, 204
National Crime Record Bureau, 379, 624 National Offences punishable death, 302
Human Rights Commission (NHRC), 382 Offender
National Police Commission, 347, 355, 363, 503
normal human being in his own natural
Nature of criminology, 16, 17 surroundings, 521 Offenders
Nav Jiwan Shivir (open jails), 483, 484 psychologically normal persons, 618 Offenders
NDPS Act, 218, 221 may be classified into following categories, 625
Neglected children, 598 Offenders of Rape Case
Neighbourhood influences, 86 need to be Sternly Punished, 201 Officer
Neo-classical School, 38 making arrest
Neo-classists able to justify its necessity, 372 Old concepts
adopted subjective approach, 40 have radically changed, 258 On-line drug-
approached the study, 39 trafficking, 213 Only aim
Neo-Criminology, 30 New illegal use of computer systems, 146 Open air
Dimensions camps
Criminality and Crime Prevention, 650 New commendable service, 475 in India, 473 Open
Penology, 250 New Section 7-A air prisons, 431
as inserted by the Juvenile Justice, 592 New in existence in America, 468 Open Jails, 440,
specie of crime cyber crime, 10 New trends 467, 631 Open Prison Institutions in other
in the sentencing system, 323 Countries, 471 Open prisons
NHRC Guidelines
Maharashtra and Andhra Pradesh, 482
Police Public Relations, 376 Nigel
operating in the country, 477 Open prisons in
Walker, 644 No pregnancy woman, 179 No
U.S.A., 468 Open-air prisons
Probation for Convicted Corrupt Persons, create their own problems, 478 play an
556 No punishment j important role in the scheme of reformation, 466
imposed initially, 523 Non- Open-prisons—International perspective, 470
Opportunities
criminals
self-improvement, 476
commit crimes, 41 Non-
Organised crimes, 111, 113, 115, 117, 119, 121, 123
participating victims
Organised criminals, 124 their own leaders, 118
who are completely innocent, 668
Organised police force
Normal citizens
maintaining law and order, 341 Organised
contact with police and prefer to keep away
predatory crime, 112 Origin
from law courts, 376 Nulla poena sine lege, 18
of Police, 338
Nullum crimen sine lege, 18 Nyaya mimansa, 13
Origin of
Nyaya panchayats, 33
Indeterminate sentence, 496 Open
Prisons, 467 the Probation System, 525
Object of
Origin of parole in
Criminal Trials, 403
United States of America, 508
Probation, 524 Objectives
Outlaw, 4
were
Over-crowding in prisons, 503 Over-flowing
criminality of youth arrested

attributed to biophysical factors, 570 Overall aware of his right to have some one informed,
Statistical View of 373 Person authorised
Indian Prisons, 440 inspect the standard of food and clothing, 452
Person is arrested by the police without warrant,
Pakwasa Committee 368 Person released on probation
accepted the system of utilising prisoners, 429 suffer a disqualification attached to a
Pakwasa Committee, a Model Jail, 430 conviction under any other law, 531
Para-militarism, 343 Personality of the criminal
effect of biological, mental and psychological
Paranoiacs, 53
factors, 72 Personality type crimes, 59 Persons
Pardon
kept incarcerated
defined as an act of mercy, 486 Pardon as a
given some chance to reform, 514 Petty
mode
offences
mitigating the sentence of the accused, 487
punishable with fine, 259 Petty offenders
Pardoning
be subjected to prolonged sentence, 499
power, 486 Parents Pillory, 265 Piracy, 145
keep their wards well under control, 173
Pnological researches
Parole, 503, 507, 510
evolved a new thinking, 31
based on indeterminate sentence, 501 in Police
India, 510 Parole administered only prisoners a State subject, 343
maintenance of peace and enforcement of
display an
law and order, 338
inclination for good
Police Advisory Committee, 377
behaviour, 512 Parole
Police also conducts
Boards, 519 Parole
search and seizure, 359 Police cases
conditions, 512 Parole
lack of public co-operation, 353 Police
violation, 517 Parole-
Commissioners, 347 Police Complaints Authority
Boards, 505 Parolees
complaints against police officers, 366 Police
have to be rehabilitated
custodial torture, 368 Police dogs
through various social agencies, 519 Parolees
spotting out criminals, 643 Police Force in
in such cases i
India, 340
are to report to the police every month, 509
organised, maintained and directed by
Paterson Alexender, 613
several States, 343 Police is considerably
Pathological personality-traits
weakened political interference, 376 Police
as mental disorder, emotional instability,
Organisation
egocentrism and mental conflicts, 620 Patrolling
Central Government, 346 Police public
is the visible police function, 355 Patterns of
co-operation, 375 Police public co-operation,
IPC crimes, 233 Payment of compensation
known as bot washed away the guilt, 4 615 Police set-up), 344 Police sniffer dogs, 380
Pennsylvanian prison system, 420 Political changes
Penologist give rise to new political offences, 80 Political
suggest that continued isolation, 620 graft, 117, 620 Political ideology, 80 Political
Penologists interference
opposed to retention of capital punishment, stage of investigation, 357 Political leaders
256 Penology, 17, 31 means do not matter, 88 Political offences
various aspects of punishment and penal motivated politically, 10 Political offenders,
policies, 17 Penology—its future, 31 Person 625 political nature, 66 Political offenders who
Index 837
are not guilty of violence 461, 463, 465 improving the efficiency of these
to be kept separate, 462 Politicalisation of institutions, 448 Prison administrators
democratic institutions, 641 no power to add additional punishment, 459
Politicians Prison Community, 438 Prison Discipline
use of their political influence and contacts concerns criminality, 435 problem of, 433
with high officials for their personal gain, 92 Prison legislation
Pornography, 28 make provision for remedy of compensation
on the internet, 149 to prisons, 450 Prison reforms, 422, 426, 429, 432,
Positive school, 40, 45 448 Prison statistics
Positive school differed a distorted picture of criminality, 228
classical school, 46 Poverty Prisoner

cannot demand soft jobs, 459 Prisoner's
another potential cause of juvenile
rights
delinquency, 575 as a potential cause of
protected by the court, 461 .
criminality, 101 Power to grant pardon
Prisoners
delivered by a court of law, 487
to be humanly treated, 426 undergoing life
Powers of Magistrate, 395 Practice of
imprisonment, 443 Prisoners kept in the camp
releasing prisoners on bail, 418 Practice
called prisoners, 479 Prisonisation of
of transporting
woman offenders, 275 Prisonisation
undesirable criminals, 269 Pre-classical
symbolises
school, 36 Pre-natal Diagnostic Techniques Act,
a system of punishment, 417 Prisons
180 Pre-sentence report, 559 Precise definition of
in India, 428
crime no means an easy task, 7 Prediction Table, treated as minimum security institutions, 425
62 Present laws Prisons do not serve
become out-dated, 407 the purpose of training and rehabilitation of
Press all categories of offenders, 520
allowed to interview prisoners, 460 Prevent Probation, 517
the juvenile as a measure of social defence, 568 . as a
contamination and stigmatisation, 594 measure of treatment, 527 enables the offender to
rehabilitate,
Prevention
560
of recidivism, 625
in its proper perspective, 539 matter of
Prevention of
discipline and treatment, 521 Probation and
juvenile crimes, 633
parole
Prevention of crime
differ from each other, 506 Probation as a
protection of society, 252 treated as
method much more cheaper, 563 Probation
everyone's concern, 659 Prevention of juvenile
extends
delinquency, 646, 651
crimes of violence, 526 Probation in India, 528
Prevention of sex delinquency, 173
Probation in U.K., 526 Probation in U.S.A., 525
Preventive functions, 355
Probation is a conditional release of an offender
Preventive theory, 245
under supervision, 523 Probation is used
Primary prevention
as an institutional method of treatment, 528
refers to location, 629 Principle
Probation keeps the offender from the criminal
indeterminate sentence, 499 Principles of
world, 560 Probation must be based investigation,
policing, 351 Prison Administration, 417, 419,
565 Probation of offenders, 521, 523, 525, 527,
421, 423, 425, 427, 429, 431, 433, 435, 437, 439,
529, 530, 531, 533, 535, 537, 539, 540, 541,
441, 443, 445, 447, 449, 451, 453, 455, 457, 459,
543, 545, 547, 549, 551, 553, 555, 557, 559, 561, Provision
563, 565, 567, 569 an effective method of easing made for legal aid, 404
pressure on prisons, 527 Probation of Offenders Provisions relating
Act compensation under, 680 contains a to presumption and determination, 599
Psychological concept of crime, 62 s
mandatory provision, 537 Probation officer, 537,
Psychological conditions
559, 561, 594 major functions , 561 Probation
causation of crime, 65 Psychological depravity, 63
officers
Psychological researches on teen-age violence, 63
possess legal qualifications, 567 Probation
Psychologically disturbed criminals
principle is negatived, 554 Probation seeks to
who commit crime because of mental
socialise criminal as the liberty, 560 Probation
depravity, 618
System in Japan, 528 Probation system lays
Psychotherapists
greater emphasis on the offender, 564 believe that analytical treatment of criminals,
Problem of 15 Public Participation
easing pressure on prisons, 521 in Probation Service, 568 Punishing the
Problem of a offenders primary function, 241 Punishment
uniform sentencing policy, 281 Problem of controlling crime and criminality, 262 include
Overcrowding in Prisons, 433 Problems faced both compensation as well as imprisonment,
police during investigation, 350 256 of offender, 405 punishable by the State,
Problems involved 11 serve as a measure of social defence, 257
in Crime Prevention, 640 Punishment always carries with it a
Problems of police, 350 Process stigma, 247 Purpose of these open
individualised method in prison, 454 Process institutions
of putting inmates to work reduces monotony of socialisation of inmates, 472
prison life, 622 Professional and hardened
criminals understand the language of violence, Quaker's Movement, 418 Queen's Bench
369 Division, 386 Quinney, 29
Professional control
Radical criminology
to modify offender's behaviour, 562
highlight these problems, 29 human nature by
Professional criminals
itself is not criminal, ' 28
organise themselves into criminal gangs, 112
Radzinowicz Leon Dr., 30, 228, 2°S, 421, 525, 570
Progress of sentencing procedures
Raffaele Garofalo
in context of prevention of crime, 631 Pros
first legalist to attempt a sociological
and cons
definition of crime, 72 Ragged Industrial School
life or death, 308
Movement, 577 Raids and searches
Prosecuting Attorney
two police women, 183 Rape
four main functions to perform, 389
most hated crime, 197
Prosecution agencies
Rapid expansion
unnecessarily oppose the anticipatory bail,
trade and commerce, 211
399 Prostitution
Rarest of rare cases
age-old practice, 181
but to confirm the sentence of death, 313
Protection of society
Rational penal policy
primary object, 45
aim at protecting the society, 253
Protection of women
Reasons for multiplying number
against possible sex harassment, 194
undertrial prisons, 444 Recent decades
Provides
considerable increase in crime rate, 6 Recent
the rationale of protection, 533
Index 839
penological Resemblance
to give primacy to reformative methods of between white collar and the blue-collar
punishment, 276 Recidivism, 617, 619, 621, 623, crime, 137 Resolution detailing measures
625, 627 habit of relapsing into crimes by the international terrorism, 651 Restorative justice
criminals, 617 Recidivistic concept of, 673 Retaining the death penalty
offenders, 621 protection of society, 295 Retention of capital
Recidivists punishment, 293, 296, 336
kept in prisons equipped with maximum Retention preferred to Abolition, 296
security arrangements, 626
Retributive theory, 244, 245 Revocation
often proved a failure in the process of
probation, 566 of
Reckless Walter, 65, 73, 111, 127, 430, 475, probation order, 562 Right to claim compensation
530, 563, 627 the wrong-doer, 22
Record information Rights and protections afforded to the accused
the Inquest-Register, 360 Reformation persons, 24 Rights and responsibilities of
and rehabilitation basic policy of criminal prisoners hung up in prominent places, 461
law, 437 Reformation of criminals, 254 Rights of
Reformative measures Prisoners, 442 Rights of the prisoners
such as probation and parole, 633 to communicate and meet friends, relatives
and legal advisers, 450 Risk of penalty cost of
Reformative Theory, 246 Reformatory
crime, 284 Robert Mark Sir, 619 Robert Peel, 54,
school, 537 Regular police force
339 Robinson, 58 Role
pre-occupied with the tackling of urban crime
Investigating Agencies, 400 Role of courts in
problems, 362 Regular updation and ppblication
rehabilitation of offenders, 537 Role of police,
of the crime statistics, 238 Rehabilitation
352 Role of prisons in
prime object of sentencing, 496 Rehabilitation
modern penology, 432 Roscoe Pound, 8, 73
and re-orientation of such juveniles and children
suggested in Section 40, 598 Rousseau, 38 Rural policing in India, 362 Russian
prisons, 425
Relationship
economy and crime is inverse, 100
Safeguards to an accused in course of trial, 24
Relationship between SAKSHI, 196
development and crime favours, 649 Release Salient features of the present prison system in
of a person on probation a treatment reaction to Britain, 425 Salmond, 3, 241, 247 Sampumanand
crime, 594 Release of a prisoner on parole, 517 camp, 479, 480, 482 Sanint Thomas Acquinas, 36
Religion and crime, 81 Remarkable achievements Santhanam Committee Report, 130, 135
Chandraprabha Open Air Camps, 479 Satisfaction of sex impulse
Remedial rights of prisoners important biological need, 171 School-going
require deeper understanding, 457 girls
Remonstrance, 258 Removal of Disqualification sex-experience before attaining puberty, 166
attached to Conviction, 547 Repatriation of Schools of criminology, 35 Science of criminology,
Prisoners Act, 464 Report of the Probation Officer 29 Scientific classification
made imder Section 15, 600 Republic of Hungary prisoners based on the nature, 450
adopted educative reformatory work, 472 Scientific researches
Reputation of a lawyer depends intelligence and criminality, 58
on the number of cases won by him, 92 Scope of Judicial Review Pardon Power,
Rescue homes 493 Search
for destitute women, 184 made in day-time, 359 Second
murder 60, 95 Sheldon's Views on Criminality, 60 Shelter

not to be confounded, 308 homes, 602 Shop-lifting, 27
Secondary prevention Short-term custody during inquiry or trial kept in
refers to reducing opportunities, 629 an Observation Home, 611 Single Convention on
Section 20 of the J.J. Act Narcotic Drugs (SCND), 211 Social change
special provision has been incorporated, 595 an inevitable phenomenon, 77 Social crimes
Section 21 committed under social legislation, 10 Social
prohibits adverse publicity of the juvenile, 608 disorganisation theory, 95 Social engineering, 73
Section 22 of the Act contains special provision Social interests
in respect of juveniles, 597 Section 376 protected by society and defended by
provides punishment for rape, 195 Section 389 punishments, 73 Social problem
of Cr.P.C. deals suitable match, 64
with suspension of execution of sentence, 516 Socio-cultural patterns and criminal behaviour, 91
Section 53 of the Act Sociological school, 47 Sociological Theory
confers revisional powers on the High Court, of Criminal Behaviour, 74 Sociological theory
601 Section 59 of crime, 72, 73, 75, 77, 79, 81, 83, 85, 87 Solitary
provides that a juvenile in conflict, 602 Secure confinement, 270, 447 Solitary
free and competent legal services to weaker confinement, 271
sections, 397 Security bond, 268 commenting on the torture and cruelty, 270
for good behaviour, 268 Self-Government in inflicted except in extreme cases, 459 Some of the
prisons, 436 Sellin Thorsten, 75, 100 Semi- traditional crimes
detention method now being committed through Internet, 153
Some penologists
intended to restrict liberty, 633 Sen P.K. Dr., advocated the need of spiritual training, 456
28, 252, 270, 498 Sentence Some prisoners
transported to Australian regions on a
suspended, 501 Sentencing be prohibited
'parole-pass, 423
certain cases of trivial offences, 409 Some recidivists chose criminality
Sentencing powers Sections 28 to 35, 395 Separate it brings them recognition and position, 627
prisons Sources of
annexes for undertrials, 441 criminal statistics, 229 Special
Separate Schools & Hostels Homes, 599, 611
for the Children of Prostitutes, 612 Serious custody of delinquent juveniles, 611 to
allegation against provide for rehabilitation, 592 Special Juvenile
the working of open prisons, 485 Serious Police Units, 604 Special Juvenile Police Unit
indictable offences Assize Court, 386 Sethna M.J., well trained in counselling services, 604
98 Several reasons Special Juvenile Police Units, 615 Special
not reporting crimes, 227 procedure
Sex of the Juvenile Justice Board, 607
a great analgesic, 168 Sex criminality Sponsorship, 599 Stalking, 7, 146 State
prevented, 174 Sex delinquency, 167 Sex ethics, After-Care units
186 Sex-crimes set up in each State, 430 State
stoning to death, 265 Sex-scandals, 7 Sexual of crime
Abuse criminal justice, 654
of Children, 203 Sexual harassment of women State-wise number of Fast
at work places, 192 Sexual offences, 63, 166 Track Courts, 414
Sexuality Steady deterioration
bio-physiological phenomenon, 167 Sheldon, quality of the investigation, 406 Stephen,
Index 841
8, 25 Stoning, 265 Strong relationship

between criminality or income inequality, 82
Structural set up of Parole Boards, 511 Struggle
constantly persists
between the law-breakers and the law-keepers, 67
Studies on juvenile delinquency clinical service,
615 Study of crime and criminal scientific basis, 16
Success or failure of parole
depends on the following factors, 512
Successful working system of parole, 508
Suggested changes
Criminal Law & Procedure, 636 Suggested
for
suppressing recidivism, 625 Suicide
offence, 298
Super ego, 61
Supreme Court
observed
offender on probation Joes not obliterate
stigma of conviction, 550 Supreme Court took a
serious view police custodial death, 370 Supreme
Court's
Directives for avoidance of Custodial Crimes,
373 Surveillance
another important function, 355 Sutherland
Dr., 8, 19, 29, 35, 43, 47, 55, 60, 64, 68, 73, 77, 91,
95, 113, 126, 127, 128, 135, 438, 498, 504, 506, 619
Synthetic product crime, 43 System encourages
offender to use the freedom accorded to him,
469 System of allowing prisoners
benefit of good time allowance, 495
Index 842
System of open prisons Trial proceedings, 402

founded on trust and confidence reposed in Tribals norms and criminality, 94
prisoners, 470 System of parole Turk A.T., 96
a modified form of conditional pardon, 490
corrective measure and rehabilitative process, Ultimate justification of all sentencing protection
466 System of probation involves of society, 502 Ultimate significance of parole
conditional suspension of punishment, 523 prisoner a free Social life, 504 UN Congress on
Systematic study
criminology, 35 prevention of crime and treatment of offenders,
650, 654 Under 21 years of age
TABLE SHOWING an offence punishable with imprisonment,
Recidivists Convicted, 624 TREND OF 535 not be released on probation, 540 not with
VIOLENT CRIMES, PROPERTY CRIMES imprisonment for life, 546 Undertrial prisoner
AND ECONOMIC CRIMES, 232 Taft Donald, 8, transported from the prison, 459
19, 20, 27, 37, 60, 79, 83, 89, 96, 99, 111, 168, 170, Undertrials
180, 186, 226, 288, 388, 390, 420, 434, 439, 512, to be kept in leg-irons, 460 UNESCO, 645,
565 Tahelka dot com, 118, 637 Tappen P.W., 25, 654 Uniform framework juvenile justice, 584
573 Tarde Gabriel, 42, 45, 101, 105, 501 Tax Unnatural offences, 177 Unprecedented increase
evasion, 137 Tax-evasion, 131 in divorce cases and matrimonial disputes
not an authentic white collar crime, 128 another cause for disrupting family solidarity,
Tentative theory of crime, 89 575 Urbanisation
Terrorism given rise to new problems, 574 given rise to
another crime problem of recent origin, 642 several new problems, 170
Terrorism & Related Organised International Urbanisation has also contributed
Crimes, 122 Terrorists, 642 Tertiary prevention unprecedented rise in crime rate, 236 Useful
term is derived from the field of medicine, 629 Suggestions, 565 Utilisation of prisoners in
The Concept of Parole, 504 The High Courts productive work, 437 Utilitarian hedonism, 31
highest judicial institution within the State, Utility of
393 The Object of Parole, 519 capital punishment, 288 Utility of open-
The Place of Probation prisons
in the Penal Policy, 559 The Problem of as a part of After-care device, 470 Utility of
prisoners' Health, 434 undertrial prisoners, 443 probation
Theodore Levin, 631 Theories of punishment, 241, point of view of the delinquent, 560 the point
242 To initiate appropriate measures of view of Probation Officer,
to control economic and financial crimes, 656 561
Torts, 4 Torture the stand-point of Society, 561 Utimate
defined in the Constitution, 374 Traditional object of punishment
crimes well recognised, 32
assault, robbery, dacoity, murder, rape,
kidnapping, 125 Transfer of proceedings Vagrancy
in criminal prosecutions, 651 Treatment a potential source of criminality, 638
methods help in the resocialisation of Validity of keeping prisoners
prisoners, 15 Treatment in institutions under solitary confinement, 447 Vandalism
not help in the ultimate rehabilitation, 626
destroying or damaging property, 147 Vedig
Treatment of offenders
age, 391 Victim precipitation notion of, 664
in custody or in the community, 648
Victimisation
Treatment of prisoners
primary, secondary and tertiary, 666
on psychological and psychiatric basis, 430
Victimization impact of, 670 Walsh R.H., 100

Victimology, 257 Walter Moberley Sir, 242
definition and meaning, 663 historical What it means? Juvenile delinquency, 572
perspective, 663 theory of, 664 Victimology of Index White collar 847
modem time greatly affected, 669 Victims more dangerous to society than ordinary
compensatory relief, 679 crimes, 126 White collar crime
providing redress to, 667 Victims distinguished from traditional crime,
in other countries care and 136
protection of, 676 Victims of in business deals, 135 White collar crime in
Crime, 650 India, 130 White collar crimes, 27, 85, 91, 125,
Justice Malimath Committee 126, 128, 129, 131, 139, 498
Recommendation on, 683 Video-conferencing, White collar criminality
382, 390 Viruses, 144 a new phenomenon, 384 White collar
serious damage, 144 Vivin Bose Commission, criminals escape punishment, 139 Women
and domestic violence, 186 torture and
131 Vohra Committee Report, 117 Voice
harassment, 187
against severe punishment, 38 Void G.B., 25,
65, 618 Vote buying
common example of political graft, 117
Women and their outdoor activities Organisation (WHO), 645 World Intellectual
sex crime, 82 Property Organisation (WIPO), 162 Wrongdoer
committing crime punished for his guilt, 3
Women police
recruited in the police, 348
Yoga, 28, 456
Women prisoners
Young girls in particular
treated more generously, 448
possible dangers of illegal sex, 175 Young
Words and Phrases offenders
actus non facit reum nisi mens sit rea, 22
punished but be reformed, 581
actus reus, 11 amicus
curiae, 492
ignorantia facit excusat, ignorantia juris non
excusat, 23 latent victims, 668 mens-rea, 11
mental age, 58
nemo debet bis vexari si constat curiae quod
sit pro una et eadem causa, 24
non-participating victims, 668
Radical Criminology, 83 suo
motu, 586
unwillingness to accept declaration of guilt,
389 victim of crime, 665 walked alone or dressed
attractively, 672
Work
be conceived
o as additional punishment, 438
Work of probation
assigned to different departments, 567
Working of open-jail
proved to be useful, 484 World Health
Index 847
Women and their outdoor activities unwillingness to accept declaration of guilt,

sex crime, 82 389 victim of crime, 665 walked alone or dressed
attractively, 672
Women police
Work
recruited in the police, 348
be conceived as additional punishment, 438
Women prisoners
Work of probation
treated more generously, 448 assigned to different departments, 567
Words and Phrases Working of open-jail
actus non facit reum nisi mens sit rea, 22 proved to be useful, 484 World Health
actus reus, 11 amicus Organisation (WHO), 645 World Intellectual
curiae, 492 Property Organisation (WIPO), 162 Wrongdoer
ignorantia facit excusat, ignorantia juris non committing crime punished for his guilt, 3
excusat, 23 latent victims, 668 mens-rea, 11
mental age, 58 Yoga, 28, 456
nemo debet bis vexari si constat curiae quod Young girls in particular
sit pro una et eadem causa, 24
possible dangers of illegal sex, 175 Young
non-participating victims, 668
offenders
Radical Criminology, 83 suo punished but be reformed, 581
motu, 586
-------------- c------------
into the 2G Spectrum scandal involving 175 thousand crore rupees allegedly at the
behest of Telecom Minister A. Raja issuing licenses arbitrarily during 2008-10;
Commonwealth Games (CWG) Scam is another huge corruption fraud under probe
during (2010-11) involving bungling of several thousand crore rupees.
o
Index 847
1. AIR 1961 Mad 498.

2. (1973) 1 ML] 205.
1. Bofors Scam January, 1990; 2. Kansi Land Scam, 1992 in which Tamil Nadu Chief
Minister was implicated and acquitted by the Court in September, 2004; 3.
Palmolein Oil Scam (1991-92) importing oil from Malaysia at inflated price (case is still pending
in SC) high profile involved in the former Kerala Chief Minister K. Karunakaran and six
others); 4. Harshad Mehta Scam 1992; 5. Fodder Scam, 1997 in which Shri Laloo Prasad
Yadav is allegedly involved (involving Rs. 2.37 crores);
6. Urea Scam, (1996-97) Amount involved Rs. 133 crores; 7. Telgi Stamp Paper
Scam, 1998-2001 (Fake stamp papers sold as genuine causing loss of Rs. 20,000 crore
to Exchequer (accused Abul Karim Telgi); 8. Tahelka Defence Deal Scam, 2001; In this case
charge-sheet against Samta Party leader Jaya Jetley has been filed by C.B.I.
on 26th December, 2006; 9. Petrol Pump Illegal Allotment Scam, 2002; 10. Taj
Corridor Scam 2003 in which Ex-Chief Minister of U.P., Mayawati is allegedly
involved; 11. Benami Demat Scam February, 2006 wherein as many as 15 Indian
banks were involved; 12. Cash for vote scam (2008) BJP MP's Paid to vote for UPA in no
confidence motion in July to save the Govt. (Trial Still pending); 13. Sattyam
Computer Service Companies Corporate Scam of 7,8(X) crore rupees (January, 2009);
14. 2G Specturm Scam 2010; 15. Commonwealth Games Scam, 2010; 16. Bombay Adash
Society Scam 2010 wherein flates meant for defence personnel were illegally allotted and taken
by influencial politicians and high ups.
3. Wilson Clay: Cyber crime and Cyber Terrorism (2(X)8) CRS Report for US Congress
(website).
3. Section 14 defines 'copyright".
3. The other amended Acts are the Bankers Evidence Act, 1891 and the Reserve Bank of India
Act, 1934.
1. There are in all twenty I.P.C, offences wherein the use of the word "document" shall also
include "electronic record". They are as follows :—
o
Index 847
1. Offences by or relating to public servants (Sec. 167, IPC).

2. Absconding to avoid service of summons to produce electronic record (S. 172).
3. Preventing service of summons or preventing publication of summons (S. 173).
4. Intentional omission to produce document or electronic record (Section 175).
5. Fabricating false evidence/electronic evidence (Section 192)).
6. Destroying document or an electronic record to prevent its production as evidence
(Section 204).
7. Extortion (Section 383).
8. Forging certain documents/records/electronic records (Section 463).
9. Making false documents (Section 464).
10. Forgery of record of court or of publishing register etc. (Section 466).
11. Forgery for the purpose of cheating (Section 468).
12. Forgery for the purpose of defamation (Section 469).
13. Using forged document or electronic record (Sections 470 and 471).
14. Knowingly possessing a forged document or electronic record (Section 474).
15. Counterfeiting authentication marks or devices (Section 476).
16. Falsifying accounts (Section 477-A).
17. Criminal intimidation (Section 503).
18. Criminal Trespass (Hacking) (Section 441).
19. Pornography (Section 292).
20. Mischief (Section 425).
1. Source : CRIME IN INDIA—2008 published by the National Crime Records Bureau
(N.C.R.B.).
2. AIR 1997 SC 3011.
1. 1996 (3) Crimes 35 (SC).
1. 1992 (3) SCC 204.
2. AIR 2007 SC 3225.
3. AIR 2008 SC 572.
o
Index 847
T. AIR 1991 SC 207.

1. Leon Radzinowicz : In Search of Criminology, p. 4.
Ostracism literally means exclusion of someone from the community or
3. Gaur, H. S, Sir, : Penal Law in India, Vol. I (1972), p. 330.
3. (1948) Mad. 359.
1. Sevak Perumal v. State of Tamil Nadu, (1991) 3 SCC 471.
4. Henry Maine : Ancient Law (4th Ed.), pp. 374-76.
1. 17 CWN 1213.
1. AIR 1979 SC 916, at p. 962.
1. Supra.
2. AIR 1983 SC 957.
4. AIR 1983 SC 465.
4. AIR 1987 SC 1346.
4. AIR 1996 SC 787.
1. AIR 2006 SC 210.
1. AIR 2004 SC 3508.
2. AIR 1995 SC 1387.
4. AIR 2007 SC 2868.
1. AIR 1989 SC 1335.
1. 1980 Cr. L.J. 801 (SC).
4. AIR 1985 SC 628.
8. State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73 ; Venka Rajihamanohari v. Venka
Venkata Reddy, (1993) 1 SCC 4 ; Sarojakhan Nayar v. State of Maharashtra, 1995 Cr LJ 340.
1. AIR 2007 MP 166.
4. AIR 2005 SC 972.
1. AIR 1981 SC 625.
On appeal, the Supreme Court maintained the order of the High Court
1. AIR 1979 SC 1819.
o
Index 847
2. AIR 1983 SC 378.

1. Singh R. G. : Terror to Reform (1st Ed.) p. 128.
1. (1981) 1 SCC 107.
1. (1996) 6 SCC 241. In C. Muniappan & others v. State of Tamil Nadu, (2010) 9 SCC 567, also the
Supreme Court upheld the death sentence of the accused for burning buses in Rasta Roko
Andolan resulting in death of three girls due to bums and bum injuries to 20 others. This
condemned accused has moved a mercy petition under Article 72 to the President for grant of
pardon.
1. Fedrick Howard Wines "Prison Reforms at Home and Abroad" Chapter IX, pages 190-208.
4. (1979) 3 SCC 645.
4. Ex-Capt. P.S. Gill v. Chandigarh Administration, 1995 (1) Crimes 622.
4. AIR 2007 SC 2649.
1. The word 'Probation' used in the title of the Act is patently a misnomar. It should be 'Parole'
and not probation. This author had brought this anomaly to the notice of the prison authorities
and the State Government when he was a member of the Prison Board way back in 1993 but
the discrepancy still continues.
1. Social Defence Quarterly Vol. VII No. 25 (July 1971), pp. 6-7, published by Central Bureau of
Correctional Services, New Delhi.
4. AIR 1968 Goa 103.
4. (1967) Raj LW 101.
1. (1979) 48 Cut. LT 466 (468).
2. (1995) Cr LJ 2126 (SC).
1. (1976) Cr LJ 379 (Bom).
4. 1999 (2) C Cr J 766 (SC) (C Cr J stands for Current Criminal Judgment).
1. 2000 (1) C Cr J 161 (MP).
1. AIR 1983 SC 654.
1. AIR 1983 SC 654.
1. AIR 1966 Punj. 336.
o
Index 847
1. AIR 1985 SC 772.

2. (1987) Cr. LJ 950.
4. AIR 1988 SC 285 (The decision is Chalappan's case was overruled by this case.
1. AIR 1996 SC 3159.
4. (1976) Cr LJ 1339.
4. AIR 1972 SC 2607.
1. AIR 1981 SC 927.
4. Ibid para 14.
1. AIR 2004 SC 2364.
2. (1997) 7 SCC 756.
1. David Dressier : Practice & Theory of Probation And Parole (1959) Columbia University
Press, p. 167.
1. Erkinson, T. : Society and the Treatment of Offenders : Studies in Penology (IPPF) p. 86.
2. Section 2(d).
X. (1997) 10 SCC 525.
4. 1995 (2) Crimes 116 (Pat).
1. 1990 Cr.L.R. 481 (Raj.).
4. AIR 1988 SC 236.
1. AIR 2001 SC 2231.
4. AIR 2000 SC 2264; See also Santenu Mitra v. State of West Bengal, AIR 1999 SC 1587.
1. AIR 2005 SC 2731.
7. AIR 2005 SC 2731.
1. AIR 2011 SC 593.
1. AIR 2009 SC 314; see also Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Another,
AIR 2009 SC 2805.
4. 1995 (1) Crimes 476 (Pat.).
1. (2009) 13 SCC 211; followed in Daya Nand v. State of Haryana, AIR 2011 SC 593.
1. (1996) 1 SCC 665.
o
Index 847
2. AIR 1980 SC 898.

1. AIR 2004 SC 7 (Para 10).
4. AIR 2000 SC 2083.
2. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004, Section 4, for
Sections 1, 2 and 2A (w.e.f. 21-9-2004).
3. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004, Section
4, for Sections 1, 2 and 2A (w.e.f. 21-9-2004).
5, for "Chapter XXXV" (w.e.f. (21-9-2004).
3, for "Code of Criminal Procedure, 1898 (5 of 1898)" (w.e.f. 21-9-2004).
6, for Section 10 (w.e.f. 21-9-2004).
7, for Chapter IV (w.e.f. 21-9-2004).
1. As amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
(Act No. 33 of 2006) (w.e.f. 22-08-2006).
2. Subs, by Act No. 33 of 2006, Sec. 3, for "Commencement" (w.e.f. 22-08-2006).
1. Section 14 renumbered as sub-section (1) thereof by Act No. 33 of 2006, Sec. 11 (w.e.f. 22-08-
2006).
o
Index 847

3. las. by Act No. 33 of 2006, Sec. 19 (w.e.f. 22-08-2006).
4. Sub-section (3) renumbered as Sub-section (4) by Act No. 33 of 2006, nScc. 26 (w.e.f.
22-08-2006).

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Criminology &

FIFTEENTH EDITION Reprinted 2012

CENTRAL LAW PUBLICATIONS

Law College Notes & Stuffs

Exclusive group for Law Students

Join Us Here for More Materials

First Edition 1973 Reprinted 1999

Price Rs. 480.00

Sole Distributors for Delhi M/s Universal Book Traders

Published by Central Law Publications, 107, Darbhanga Castle, Allahabad-2

flu&tice. SltantaMU Kemka/i

Preface to the First Edition

Bhopal Dr. N.V. Paranjape

viii Criminology and Penology

Justie, Punishment & Treatment, 1983

Vedder & Key :

AC ... Appellate Court

AIR ... All India Reporter.

xii Criminology and Penology

Cur LJ ... Current Law Journal.

14 Criminology and Penology

Caution against Excessive Reformation

Socio-cultural patterns and Criminal behaviour ... 91

xvi Criminology and Penology

Hoarding, Black Marketing and Adulteration ... 131

Bangladesh Cyber Law ... 165

xviii Criminology and Penology

Penal Policy in India Page

Retributive Effect of Death Penalty 284

xviii Criminology and Penology

xxii Criminology and Penology

Prison Authorities to inform undertrials about their legal rights Page

Definition of Open Prison 467

xxiv Criminology and Penology

No Probation for Convicted Corrupt Persons ... 556

xxvi Criminology and Penology

PART III VICTIMOLOGY

Theories of Victimology ... 664

28 Criminology and Penology

D Gaurav Jain v. Union of India, 117, 185, 612

Table of Cases xxxi

Table of Cases xxxiii

Pearson v. R., 224 Philip Grossman, Ex parte, Goa, 201

Table of Cases xxxv

Fulchand Shah v. Union of India & other, 514

xxxvi Criminology and Penology

The Concept of Crime

1 See Oppenhimer on "Rationale of Punishment".

4 Criminology and Penology

The Concept of Crime

which they regarded omnipotent.

6 Criminology and Penology

The Concept of Crime 7

evolve if it is to address itself adequately to new developments in information

8 Criminology and Penology

8 Gillin J.L. : Criminology & Penology, 3rd Ed., p. 6.

The Concept of Crime 9

10 Criminology and Penology

3. Offences relating to documents.