VICTIMOLOGY & PENOLOGY

20 Marks
1. Victimology and Emerging Trends of Compensation?

COMPENSATION UNDER INDIAN CONSTITUTION

Recently the Supreme Court of India has given a new dimension to the Article 21 by
interpreting it dynamically so as to include compensation to the victims under its
scope. Indian constitution has several provisions which endorse the principle of victim
compensation. In one case the Supreme Court, considering the plight of many rape
victims in the country, wanted the National Commission for Women to draw up a
scheme for compulsory payment to victims of sexual violence. Despite the sympathy
expressed in several circles, victim compensation law continues to be in an
unsatisfactory acknowledge in criminal justice with the result there is very little
interest shown by them in successful prosecution of criminal cases.

Besides the many judgements of various High Courts and the Supreme Court of India,
the Law Commission of India has also submitted the crucial Reports in which it has
recommended to provide the compensation to the victims of crime. Among many
reports, 142nd, 144th, 146th, 152nd, 154th and 156thare very important reports which
have made very important contributions towards compensation of victims. Following
the various reports and judicial decisions, the Government of India has made
amendments in the Code of Criminal Procedure and s.157A has been inserted in 2009.

Fifth Law Commission, in 42nd report[ix] dealt with compensation to victim of crime
in India. While dealing, it referred to and highlighted the three patterns of
compensating victims of crime as reflected in Code of Criminal Procedure of France,
Germany, and (Former) Russia. The three patterns are:

Compensation by the state;

Compensation by the offender either by asking him to pay it from the fine
imposed or a specified amount; and
3) Duty to repair the damage done by the offender.

CONCLUSION

Hence, as we know that this issues of victimology is gaining importance, we need to

give our due share of attention and help the study of victimology develop and be
efficiently functionally. Though many rules and provision have been made by many
governments still there is not much improvement in the plight of the victims. Victims
that go through mental and physical trauma suffer throughout their lives, as there
place is in the society changes. It is the states duty to counter balance the sufferings of
various victims all over the country. If the status of victims is alleviated, it would be
the first step in the reduction in crime and hence will lead to a certain amount of
control over the crimes. So to alleviate the status of the victims and develop the
subject of victimology, the following measures should be adopted:

1. Proper implementation on various established laws;

2. Since majority of crimes are against women, women empowerment in the
fields if crime is necessary; and
3. A separate law should be made for the victims such that speedy justice and
relief is assured.

Compensatory Jurisprudence
"While studying the biological, sociological, psychological, and criminological details
about the victim - victimology brings into focus the victim-offender relationship and
role played by victim." - Fattah

Compensation to victims is a recognised principle of law being enforced through the

ordinary civil courts. Under the law of torts the victims can claim compensation for
the injury to the person or property suffered by them. It is taking decades for the
victims to get a decree for damages or compensation through civil courts, which is
resulting in so much hardship to them. The emergence of compensatory jurisprudence
in the light of human rights philosophy is a positive signal indicating that the judiciary
has undertaken the task of protecting the right to life and personal liberty of all the
people irrespective of the absence of any express constitutional provision and of
judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue
direction or order or writ, including writs in the nature of habeas corpus, mandamus,
prohibition, quo-warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by Part III of the Constitution. The right to
move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part III is "guaranteed", that is to say, the right to move the Supreme
Court under Article 32 for the enforcement of any of the rights conferred by Part III of
the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against the
State for its failure to protect the fundamental right of the citizen has been adopted by
the courts of Ireland, which has a written Constitution, guaranteeing fundamental
rights, but which also like the Indian Constitution contains no provision of remedy of
compensation for the infringement of those rights. That has, however, not prevented
the courts in Ireland from developing remedies, including the award of damages, not
only against individuals guilty of infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given case.
In view of this constitutional provision, the Supreme Court may even give remedial
assistance, which may include compensation in "appropriate cases".

Idea of Compensation
The Idea of Compensation to victim of crime particularly to the crime victims by the
state is gaining much importance. Though this idea is an age old one, its development
on more scientific lines and also as a branch of criminology has begun since a few
decades ago. The modern states which are described welfare states have realized the
importance of the subject compensation to the victims of crime and are accordingly
taping up several victim compensation programmes, as part of their General welfare.
Various countries have taken up the scheme of payment of compensation to victim of
crime. There is a fund for payment of compensation to crime victims in Canada,
Australia, New Zealand, United Kingdom, under the control of a board. We too need
such fund to assist and assure the victims that we care.

Concept of Victimology
"The word Victimology is a new coinage and has gained considerable importance due
to the untiring work of Miss Margaret Fry of the John Howard Association of England,
Benjamin Mendelsohn, who in 1937 developed a scientific method for the study of
the criminal act which utilized biopsycho- social data on the criminal, on the victim
and on the witnesses bystanders, and the World Society of Victimology having been
himself the victim of discrimination, Mendelsohn became interested in the victim and
in his/hers relationship with the criminal." Schafer defines Victimology as "the study
of criminal victim relationship". Drapin and Viano define it as "that branch of
criminology which primarily studies the victim of crime and everything that is
concerned with such a victim". In the words of Fattah: "While studying biological,
sociological, psychological, and criminological details about the victim -victimology
brings into focus the victim-offender relationship and role played by victim."

The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders
came out with a declaration of basic principles of Justice of Victims of crime and
abuse of power, which was later adopted by the U.N. General Assembly. In the
declaration, the U.N. defined the "Victims of Crime" as follows:

1. "Victims" means persons 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 laws prescribing
criminal abuse of power.

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 dependants of the direct
victim and persons who have suffered harm in intervening to assist victims in distress
or to prevent victimization. Victims are several time suffering emotionally the most.

Compensation To Victims In Crime

The reactions to crime have been different at different stages of human civilization.
There are number of theories available pertaining to 'Reaction to crime'. Important
among these theories are Retribution theory, Utilitarian theory, Deterrent theory etc.
In common, every theory provides justification punishment. We can summaries the
objects of punishment as:

1. partly of making example of the criminal;

2. partly of deterring the criminal from repeating the same act;
3. partly of reforming the criminal by eradicating the evil will; and
4. Partly of satisfying society's feeling of vengeance which the act is supposed to
evoke.

The law in the early stages of civilization was to compensate the victim and not to
punish the offender. Narada was the first to recommend compensation to the victims
by the offender in order to expiate his sins. "If we go back to the origin of criminal
law, we see that the victim and his family occupy a central position: it is the victim
and his family who have the right to request revenge or penitence. However, over the
centuries, with the evolution of the state and the organization of state prosecution the
role of the victim has changed: from his central position the victim has been shifted to
a marginal one."

Compensation related to Constitutional Injuries

A constitutional solution to fill the gap in the legal right to compensation in the
monetary way for the abuse of the many human rights has been found by the apex
courts. The Apex Court in the case Rudal Sah v. State of Bihar for the first time laid
down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the upper courts have the
authority to do so through the exercise of writ jurisdiction and evolved the principle
of compensatory justice in the annals of human rights jurisprudence.

We can clearly see that monetary compensation had been made in cases where an
individuals legal rights have been damaged. Even though there isnt a statute
defining such a claim, the courts have exercised this power wherever they deemed fit.
If a persons fundamental right is violated or where a writ petition is not generated by
the court itself, the said persons right to compensation comes into effect and he
should be compensated adequately in such cases.

In Sebastain v. Union of India, on account of failure of Government to produce in

habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lakh to be
given to wife of each of detenne.
Compensation under criminal law
The theory of compensation in criminal law is mainly about compensation to the
victim of a crime. A victim to a crime is one who has suffered any loss because of
some act or omission of the accused. The victim not only suffers physical injuries but
also psychological and financial hardships too. The plight of a victim is only made
worse by lengthy hearings and tedious proceedings of courts and improper conduct of
the police. The victim is literally traumatised again in the process of seeking justice
for the first injury. The legal heirs/guardians of the victim too come in the same
definition.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section
357(3) to enable the Courts to award any amount of compensation to the victims of a
crime. This was depicted in the landmark case of Hari Kisan where the Supreme
Court had awarded compensation as punishment, of Rs. 50,000. Not only this, the
lower courts were asked and advised to exercise the power of awarding
compensation to the victims of offences in such a liberal way that the victims may not
have to rush to the civil courts

Compensation related to Rape

The victim of rape has to suffer from many hardships like mental shock, lost income
due to pregnancy and costs incurred during childbirth because of the offence. Also, in
the present Indian society, a raped victim is looked down upon even though she is the
victim and not the offender. During a rape trial, if the accused is just punished or
asked to pay fine, the judgment does not favour the victim as her position is not
restored. Hence it becomes extremely important to compensate such a victim.

A womens right to compensation originates from Article 21 of the

Indian Constitution which talks about right to life and personal liberty. The Supreme
Court held that a woman can be compensated even in the middle stages of the trial as
well as at the end of the trial. The Supreme Court even suggested the establishment of
criminal injuries compensation Board under Article 38(1) of theConstitution of India
whose function would have been to compensate such victims and provide them relief.
However, no such board has been formed. [xx]

In the landmark case of DK Basu v. State of West Bengal, the Supreme Court held
that a victim of custodial right has every right to be compensated as her Right to life
has been breached by the officer of the State.

In another case, the Supreme Court held that the sessions court too has the power to
award compensation to the victim even if the trial has not been completed. In fact, in
the case State of Maharashtra v. Madhukar N. Mardikar, Supreme court held that
even a prostitute has a right to privacy and no person can rape her just because she is
a woman of easy virtue.

Article 32 And The Remedy of Compensation

Compensation to victims is a recognised principle of law being enforced through the

ordinary civil courts. Under the law of torts the victims can claim compensation for
the injury to the person or property suffered by them. It is taking decades for the
victims to get a decree for damages or compensation through civil courts, which is
resulting in so much hardship to them.

The emergence of compensatory jurisprudence in the light of human rights

philosophy is a positive signal indicating that the judiciary has undertaken the task of
protecting the right to life and personal liberty of all the people irrespective of the
absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across
the globe is a great development in the jurisprudential field in the contemporary era.
A host of international covenants on human rights and the concern for effective
implementation of them are radical and revolutionary steps towards the guarantee of
liberty, equality and justice. Though the concept is new, the content is not and these
rights have been recognised since ages and have become part of the constitutional
mechanism of several countries. India recognised these rights under Part III of
the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given case.
In view of this constitutional provision, the Supreme Court may even give remedial
assistance, which may include compensation in "appropriate cases".

A question regarding the awarding of monetary compensation through writ

jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar
In this case, Bhagwati, J. observed:

"Why should the court not be prepared to forge new tools and devise new remedies
for the purpose of vindicating the most precious of the precious fundamental right to
life and personal liberty.

In Sant Bir v. State of Bihar the question of compensating the victim of the
lawlessness of the State was left open.
In Veena Sethi v. State of Bihar also the Court observed that the question would still
remain to be considered whether the petitioners are entitled to compensation from the
State Government for the contravention of the right guaranteed under Article 21 of
the Constitution.

In the light of the views expressed by the Court in the above cases it can be said that
the Court had shown its concern for the protection of right to life and liberty against
the lawlessness of the State but did not actually grant any compensation to the victims.

The seed of compensation for the infraction of the rights implicit in Article 21 was
first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a vigorous
growth that it finally enabled the Court to hold that the State is liable to pay
compensation. This dynamic move of the Supreme Court resulted in the emergence of
compensatory jurisprudence for the violation of right to personal liberty through
Rudul Sah The Supreme Court of India in Rudul Sah v. State of Bihar brought about a
revolutionary breakthrough in human rights jurisprudence by granting monetary
compensation to an unfortunate victim of State lawlessness on the part of the Bihar
Government for keeping him in illegal detention for over 14 years after his acquittal
of a murder charge.

Judicial Jurisprudence Towards Compensation Law In India

In Rudal Sah v. State of Bihar Supreme Court through Chief Justice Chandrachud
held, "Article 21, which guarantees the right to life and liberty will be denuded of its
significant content if the power of this court were limited to passing orders of release
from illegal detention. One of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the mandate of Article 21 secured
is to mulct its violators in the payment of monetary compensation." There must be
direct and proximate nexus between the complaint and the arrest for the award of
compensation under sec. 358 of the Cr. P.C. Any person is entitled to compensation
for the loss or injury caused by the offence, and it includes the "wife, husband, parent
and child" of the deceased victim. In Sarwan Singh's case court held that in awarding
such compensation, the court is to take into consideration various factors such as
capacity of the accused to pay, the nature of the crime, the nature of the injury
suffered and other relevant factors. "Power to award compensation to victims should
be liberally exercised by courts to meet the ends of justice in addition to the
conviction; the court may order the accused to pay some amount by way of
compensation to the victim who has suffered by the action of accused. It is not
alternative to but in addition thereto. The payment of compensation must be
reasonable. The quantum of compensation depends upon facts, circumstances, the
nature of the crime, the justness of the claim of the victim and the capacity of the
accused to pay. If there are more than one accused, quantum may be divided equally
unless their capacity to pay varies considerably. Reasonable period for payment of
compensation, if necessary by instalment, may be given.
In a certain case the Court held that where the amount fixed was repulsively low so as
to make it a mockery of the sentence, it would be enhanced; the financial capacity of
the accused, enormity of the offence, extent of damage caused to the victim, are the
relevant considerations in fixing up the amount. The court in Balraj v. State of U.P.
held that the power to award compensation under section 357 (3) is not ancillary to
other sentences but it is in addition thereto.

The compensation for illegal detention is the area, which unearthed new doctrines
pertaining to the compensation laws in India. In yet another case, two women filed a
writ of habeas corpus to produce two persons (their husbands) who were found
missing. The authorities failed to produce them. The Court concluded, on the basis of
material placed before it, that the two persons 'must have met unnatural deaths, and
that prima facie they would be offences of murder. The Supreme Court directed the
respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing persons.

Awards of Compensation To Victims By Courts

There is plethora of case law where the Supreme Court has awarded compensation to
the victims whose plight was brought to the notice of the apex court either by
themselves or by way of PIL with the aim of protecting the human rights of the
victims in our criminal justice system and to fulfill the constitutional obligation the
Supreme Court can direct the government to confer jurisdiction on the criminal courts
by making statutory provisions for the compensation to the victims of crime
irrespective of whether the accused is convicted or not and to make statutory
provisions for participation of the victims in prosecution along with prosecuting
agency in a criminal case instituted on a police report.

The court has also granted monetary compensation to victims of custodial violence in
many cases. In a landmark judgment of Nilabati Behra case the apex court awarded
compensation of Rs. 1,50,000/- to the mother of deceased who died in police custody
due to torture. In D.K. Basu v. State of West Bengal the Apex court held that
compensation can be granted under the public law by the Supreme Court and High
Court in addition to private law remedy for tortuous action and punishment to wrong
doer under criminal law for established breach of fundamental rights.

Universal declaration of Human Right, 1948 under Article 5 says that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment and
also Article 8 of Universal Declaration of Human Rights and Article 14 of
International covenant on civil and political Rights in Provides for compensation for
violation of fundamental Rights.
6 Marks
2.VICTIMOLOGY AS CONCEPT:
Definitions-
 Victim means natural person who, individually or collectively, have suffered
harm including physical or mental injury, emotional suffering or economic
loss or violations of fundamental rights in relation to victimizations identified
under scope.
A person is a victim regardless of whether the crime is reported to the police,
regardless of whether a perpetrator is identified, apprehended, prosecuted or
convicted, and regardless of the familial relationship between perpetrator and
the victim. The term victim also includes, where appropriate the immediate
family or dependants of the direst victims and persons who have suffered in
intervening to assist victims in distress or to prevent victimization.[iv]

Definition of victim under Victims Rights Act means

A person against whom an offence is committed by another person;

A person who, through, or by means of an offence committed by another
person, suffers physical injury, or loss of, or damage to, property;
A parent or legal guardian of a child, or of a young person; and
A member of the immediate family of a person who, as a result of an offence
committed by another person, dies or is capable, unless that member is
charged with the commission of, or convicted or found guilty of, or pleads
guilty to, the offence concerned.[v]

Victimology is a relatively young branch of academic research. Its objective is to gain

knowledge about victims of crime and abuse of power. Victimology has from its
inception adopted an interdisciplinary approach to its subject matter. Contributions
are being made by experts from fields as diverse as academic lawyers, criminologists,
clinical and social psychologists, psychiatrists and political scientists. There are
specialized international journals for victimology; there is a world society of
victimology and there are a number of regional and national societies of victimology.
The purpose of the study of victimology is to enhance our understanding regarding
victims and impact of crime on them. The aims of victimology relate to the meaning
and issues of victimology. Therefore, the study of victimization is the study of crime
giving importance to the role and responsibility of the victim and his offender.

1. To analyse the magnitude of the victims problems;

2. To explain causes of victimization; and
3. To develop a system of measures to reduce victimization.

Today, the concept of victim includes any person who experiences the injury, loss, or
hardship due to any cause. Also the word victim is used rather indiscriminately; e.g.
cancer victims, accident victims, victims of injustice, crime victims and others. The
thing that all these kinds of usages have in common is an image of someone who
suffered injury and harm by forces beyond his or her control. The rapidly developing
study of criminal- victim relationship has been called victimology and it is treated
as an integral part of the general crime problem. The word victimology was coined in
1947 by a French lawyer, Benjamin Mendelsohan. Victimology is basically a study of
crime from the point of view of the victim, of the persons suffering injury or
destruction by the action of another person or a group of persons.[vi]

According to Viano, there is a rather well-developed vocabulary in English connected

with the idea of victim:

Victimhood: the state of being victim.

Victimizable: capable of being victimized

Victimization: the action of victimizing, or fact of being victimized, in various senses.

Victimizer: one who victimizes another or others.[vii]

Victimology focuses on the victims relationship to the criminal. Hence, there can be
two major sub-areas of victimology.

1. The one relating to the scientific study of criminal behaviour and the nature of
the relationships which may be found to exist between the offender and the
victim; and
2. The other relating directly to the administration of justice and the role of
system of compensation and restitution to the victim.

3. NATURE & SCOPE OF VICTIMOLOGY- 6 Marks

Shinder, 1982 it investigates the relationship between offender and the victim in
crme causation. It deals with the process of victiminzation, of becoming a victim, and
in this context directs much of its attention to the problem victim-offender, sequence,
i.e. the question of whether or not victimization can have crimogenic effects or can
encourage crime.

Hence, the definition above given makes it clear that victims are the predominant
concern of the victimology. They are central figures in victimology. The study of
victims I relation to the legal system of particular country is main subject matter of
study of the victims.
Victimology has come of age. Victims, their needs and their rights, are being
constantly acknowledged in words if not in deed. The victim has become a political
tool or weapon depending upon ones point of view, but the concept and issue have, in
a few short years moved from the domain of a hand full of pioneers to the Council
chambers of the United Nations. And the people we know have made the difference.

1. Victimology is study of crime from victims point of views

2. Victimology analysis the victim-offender relations and the interactions
between victims and the criminal justice system.
3. Victim of abuse of power.
4. Victimology is also study of restitution and compensation or reparation of the
damages caused to him by perpetrator of crime.
The victimology is study of victimological clinic.

One of the most important developments in the field of victimology in the last twenty
years has been the formal approval by the General Assembly of the United Nations on
November 11, 1985 of the UN Declaration of basic Principles of Justice for Victims
of Crime and Abuse of Power. In the Declaration the broadest definition of victim
has been given in paragraphs 1&2. The victim is not the person who himself suffered
harm physical, emotional or economic loss but term victim also includes, where
appropriate, the immediate family or dependants of the direct victim and person who
have suffered harm in intervening to assist victims in distress or to prevent
victimization. Following rights have been granted to victims:

Access to justice and fair treatment

It is said that victims should be treated with compassion and dignity. They are entitled
to justice and prompt remedy provided under national legislation. It is important o
provide the information to the victims regarding his role, scope, timing and progress
of proceedings and disposition of their cases; while allowing the views and concerns
of victims to be presented at appropriate stages when their personal interests are
affected without prejudice to accused. It is also important to provide proper assistance
to victims throughout the legal process and to take measures to minimize
inconvenience to victims and more importantly protect their privacy and ensure their
safety. Of course, avoiding unnecessary delay in the disposition of cases and
execution of orders or decrees granting awards to victim

Restitution

Offenders or third parties responsible for their behaviour should, where appropriate,
make fair restitution to victims, their families or dependants. Such restitution should
include the return of property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of the victimization, the provision of
services and the restoration of rights. Governments should review their practices,
regulations and laws to consider restitution as an available sentencing option in
criminal cases, in addition to other criminal sanctions. In cases of substantial harm to
the environment, restitution, if ordered, should include, as far as possible, restoration
of the environment, reconstruction of the infrastructure, replacement of community
facilities and reimbursement of the expences of relocation, whenever such harm
results in the dislocation of a community.

Compensation

When compensation is not fully available from the offender or other sources, states
should endeavour to provide financial compensation to:

1. Victims who have sustained significant bodily injury or impairment of

physical or mental health as a result of serious crimes;
 2. The family, in particular dependants of persons who have died or become
physically or mentally incapacitated as a result of such victimization.
3. The establishment, strengthening and expansion of national funds for
compensation to victims should be encouraged. Where appropriate, other
funds may also be established for this purpose, including those cases where
the state of which the victim is a national is not in a position to compensate the
victim for the harm.

Theories of compensation in criminal law

Compensation under criminal law

The theory of compensation in criminal law is mainly about compensation to the

victim of a crime. A victim to a crime is one who has suffered any loss because of
some act or omission of the accused. The victim not only suffers physical injuries but
also psychological and financial hardships too. The plight of a victim is only made
worse by lengthy hearings and tedious proceedings of courts and improper conduct of
the police. The victim is literally traumatised again in the process of seeking justice
for the first injury. The legal heirs/guardians of the victim too come in the same
definition.

In the case of Hari Singh v. Sukhbir Singh, the Supreme Court held, It may be noted
that this power of Courts to award compensation is not ancillary to other sentences but
it is in addition thereto. This power was intended to do something to reassure the
victim that he or she is not forgotten in the criminal justice system. It is a measure of
responding appropriately to crime as well of reconciling the victim with the offender.
It is, to some extent, a constructive approach to crimes. It is indeed a step forward in
our criminal justice system.[v]

The law makers made provisions in the Criminal Procedure Code, 1973 under Section
357(3) to enable the Courts to award any amount of compensation to the victims of a
crime. This was depicted in the landmark case of Hari Kisan[vi] where the Supreme
Court had awarded compensation as punishment, of Rs. 50,000. Not only this, the
lower courts were asked and advised to exercise the power of awarding
compensation to the victims of offences in such a liberal way that the victims may not
have to rush to the civil courts[vii]

In the case where the appellant was illegally kept captive for a period of 6 years in an
asylum even though he was proved to be sane. In this case, the apex court ordered the
State to compensate the appellant by Rs. 15000.

A bench of justices T S Thakur and Gyan Sudha Misra said that Section 357
Criminal Procedure Code (CrPC) confers a duty on the Court to apply its mind to the
question of compensation in every criminal case. It necessarily follows that the Court
must disclose that it has applied its mind to this question in every criminal case[viii]
However, the lower courts have till now given compensation very rarely and the use
of this provision has been made to the minimal, when the accused get acquitted of
charge on benefit of doubt.[ix]

Sometimes, the compensation given to the victim under the section 357 of the
Criminal Procedure Code is not enough for him to rehabilitate. Hence the Code was
amended in 2008 on the recommendations of Law Commission and a new section,
section 357A came into existence. This section gives powers to Courts to direct the
State to make schemes and hence award compensations to victims.[x]

Compensation related to Constitutional Injuries

A constitutional solution to fill the gap in the legal right to compensation in the
monetary way for the abuse of the many human rights has been found by the apex
courts. The Apex Court in the case Rudal Sah v. State of Bihar[xi] for the first time
laid down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the upper courts have the
authority to do so through the exercise of writ jurisdiction and evolved the principle
of compensatory justice in the annals of human rights jurisprudence.[xii]

We can clearly see that monetary compensation had been made in cases where an
individuals legal rights have been damaged. Even though there isnt a statute
defining such a claim, the courts have exercised this power wherever they deemed fit.
If a persons fundamental right is violated or where a writ petition is not generated by
the court itself, the said persons right to compensation comes into effect and he
should be compensated adequately in such cases.

In Sebastain v. Union of India[xiii], on account of failure of Government to produce

in habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lakh to be
given to wife of each of detenne.[xiv]

Compensation related to Medical Negligence

As the world progresses, more and more people get aware of their surroundings as
well as their rights. People in todays world know that there are punishments and
compensations awarded for a professional negligence, like medical negligence. The
services where special skill or knowledge is required, people doing those services are
expected to be aware of the consequences of their application of skills. Hence
professionals like doctors and architects need to be very careful with dealing their
patients or clients. The practicing of medicine by a non-MBBS or not taking proper
and reasonable care leads to medical negligence.

Courts across the country have awarded compensation for medical negligence side by
side punishing the accused for Section 304-A of the Indian Penal Code. In the case
of Dr. Suresh Gupta v. Govt. of NCT of Delhi[xv], the decision of the court confirmed
the liability of the accused under civil as well as criminal law. The bench said that if
the patient dies due to the negligence of the doctor, the doctor can be tried for
compensation under civil law as well for punishment under criminal law, if the degree
of negligence is grave and unpardonable and that the negligence has a very
straightforward effect on the health of the patient, resulting in his death. Thus a
doctor cannot be held criminally responsible for patients death unless his negligence
or incompetence showed such disregard for life and safety of his patient as to amount
to a crime against the State.[xvi]

In another case of wrong treatment, Poonam Verma v. Ashwin Patel[xvii], a doctor

registered as a medical practitioner in Homoeopathy only, prescribed an allopathic
medicine to his patient. As a result of this negligence, the patient died. The court held
the doctor to be guilty and was made liable to compensate the wife of the patient for
the death of her husband as the doctor was allowed to practice only homoeopathy and
not any other branch of medicine. The negligent act of the doctor clearly resulted in
the death of the patient.[xviii]

In a very recent case Balram Prasad v. Kunal Saha, where doctors from a leading
hospital were accused of negligence in treating the complainants wife, Anuradha
Saha, for a fatal and major skin disease TEN. The doctors showed grave negligence in
handling a patient of such a dangerous disorder which resulted in her death. The Court
held that a high negligence was shown by the doctors and ordered them to pay a
record Rs. 6.08 crores with a 6% interest from the date of application which amounted
to Rs. 11 crores. The compensation was awarded keeping in mind the loss of income
of the deceased, travel expenses, mental agony, loss of consortium and cost of
litigation.[xix]

However, it is to be noted that compensation has been awarded for separate civil suits
and not in the same criminal suit. It would hence make the life of the victim or the
legal guardian/heir of the victim if the compensation suit is included in the criminal
case against the accused.

Compensation related to Rape

The victim of rape has to suffer from many hardships like mental shock, lost income
due to pregnancy and costs incurred during childbirth because of the offence. Also, in
the present Indian society, a raped victim is looked down upon even though she is the
victim and not the offender. During a rape trial, if the accused is just punished or
asked to pay fine, the judgement does not favour the victim as her position is not
restored. Hence it becomes extremely important to compensate such a victim.

A womens right to compensation originates from Article 21 of the Indian

Constitution which talks about right to life and personal liberty. The Supreme Court
held that a woman can be compensated even in the middle stages of the trial as well as
at the end of the trial. The Supreme Court even suggested the establishment of
criminal injuries compensation Board under Article 38(1) of the Constitution of India
whose function would have been to compensate such victims and provide them relief.
However, no such board has been formed.[xx]
In the landmark case of DK Basu v. State of West Bengal, the Supreme Court held that
a victim of custodial right has every right to be compensated as her Right to life has
been breached by the officer of the State.[xxi]

In another case, the Supreme Court held that the sessions court too has the power to
award compensation to the victim even if the trial has not been completed. In fact, in
the case State of Maharashtra v. Madhukar N. Mardikar, Supreme court held that
even a prostitute has a right to privacy and no person can rape her just because she is
a woman of easy virtue.[xxii]

CRITICAL ANALYSIS

When a crime is committed against a person, the victim loses out a lot apart from
incurring damages and injuries. The work of a judiciary should not only be to punish
the guilty but also compensate the victim as even if the accused is punished, the
victims loss is not compensated. The compensation given should at least try to put
the victim in a state in which he was before. It is not like victims of crime can never
ask for compensation as such a prayer is available under civil laws, but filing two
different suits for the same offence in two different courts. The proceedings for one
suit are most of the times is agonizing, that such a procedure of filing different suits
only gives the victim a second traumatisation.

The idea behind providing compensation is legal as well as humanitarian. The

inability to protect the person by the State makes it legally obligatory for the State to
compensate him. The victim goes through such pain and many times permanent loss
of income only makes it logical for him to be compensated.

In cases where a person dies or is sent into a vegetative state, compensation should be
very high as many times, the victim himself is the sole bread earner of the family and
hence his injuries affect the life of his family too. In such cases, if the accused is only
imprisoned or asked to pay a small fine, no good happens to either the accused or the
victims family.

In the Indian society of the 21st century, many people want their brides to be pure
virgins. A victim of rape in such cases not only loses out on the opportunity to marry
into an otherwise decent family but is also discriminated upon for no fault of hers. It
is often said that the most prised possession of a woman is her dignity and respect. In
the society where people still have an old mindset, the life of such a woman only
degrades. It only makes sense to compensate such a victim well apart from punishing
the accused.

Mental shock, loss of income and cost of litigation should be taken into consideration
when coming out with compensation and the Courts should hence compensate the
victims more frequently.

CONCLUSION
We come to the conclusion that compensation is not only required but is in fact a very
important aspect of even criminal law and the courts should not use this sparingly but
a little liberally. Of course they should be careful of not awarding too high a
compensation and hence should be careful.

The government should take into consideration the suggestions of the Supreme Court
and set up Compensation Boards to help the victims with financial issues. Prior to
CrPC(Amendment) 2008, India lacked an all-inclusive legislation for compensation of
victims. Compassionate treatment of victims under the criminal justice system itself
leads to the belief in the system which is enhanced by way of compensation
programmes, independent of conviction of offenders

It is need less to point out that the whole legislative paradigm coupled with lack of
judicial determination has exposed numerous flaws of the present legal system about
the compensation therefore there is need for revamping the whole legal system once.
The mandatory changes that are needed are as follows:

The suggestion given by the law commission of India in its 42nd report on Indian
Penal Code must be taken in to consideration and it would be better if the legislature
also take in to account the separate note of Justice R.L. Narsimha a member of the
commission.

The law must also provide recording of reason for not providing or providing the
compensation as we have in the case of death sentence in Cr.P.C.

The law must also provide for institutional set up as we have in western countries.

If possible it would be better to give the compensation as a right to victim.

Theories of Punishment

With change in the social structure the society has witnessed various punishment
theories and the radical changes that they have undergone from the traditional to the
modern level and the crucial problems relating to them. Kenny wrote: "it cannot be
said that the theories of criminal punishment current amongst our judges and
legislators have assumed...."either a coherent or even a stable form. B.Malinowski
believes all the legally effective institutions....are....means of cutting short an illegal or
intolerable state of affairs, of restoring the equilibrium in the social life and of giving
the vent to he feelings of oppression and injustice felt by the individuals.

The general view that the researcher finds is that the researcher gathers is that the
theories of punishment being so vague are difficult to discuss as such. In the words of
Sir John Salmond, The ends of criminal justice are four in number, and in respect to
the purposes served by the them punishment can be divided as:
1. Deterrent
2. Retributive
3. Preventive
4. Reformative
of these aspects the first is the essential and the all-important one, the others being
merely accessory. Punishment before all things is deterrent, and the chief end of the
law of crime is to make the evil-doer an example and a warning to all that are
like-minded with him.

Deterrent Theory:
One of the primitive methods of punishments believes in the fact that if severe
punishments were inflicted on the offender would deter him form repeating that crime.
Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of
enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts
equal quantum of suffering on the offender so that it is no longer attractive for him to
carry out such committal of crimes. Pleasure and pain are two physical feelings or
sensation that nature has provided to mankind, to enable him to do certain things or to
desist from certain things, or to undo wrong things previously done by him. It is like
providing both a powerful engine and an equally powerful brake in the automobile.
Impelled by taste and good appetite, which are feelings of pleasure a man over-eats.
Gluttony and surfeit make him obese and he starts suffering disease. This causes pain.
He consults a doctor and thereafter starts dieting . Thus the person before eating in the
same way would think twice and may not at all take that food. In social life
punishment introduces the element of 'pain' to correct the excess action of a person
carried out by the impulse (pleasure) of his mind. We all like very much to seize
opportunities, but abhor when we face threats. But in reality pain, threat or challenges
actually strengthens and purifies a man and so an organization.

The basic idea of deterrence is to deter both offenders and others from committing a
similar offence. But also in Bentham's theory was the idea that punishment would also
provide an opportunity for reform.

"While a person goes on seeking pleasure, he also takes steps to avoid pain. This is a
new system of political philosophy and ethics developed by Jerome Bentham and
John Stuart Mill in the 19th century called Utilitarianism. It postulates human efforts
towards "maximization of pleasure and maximum minimization of pain" as the goal.
"The main ethical imperative of utilitarianism is: the greatest good for the largest
number of people; or the greatest number of goods for the greatest number of people"
The fear of consequent punishment at the hands of law should act as a check from
committing crimes by people. The law violator not merely gets punishment, but he
has to undergo an obnoxious process like arrest, production before a magistrate, trial
in a criminal court etc. that bring about a social stigma to him as the accused. All
these infuse a sense fear and pain and one thinks twice before venturing to commit a
crime, unless he is a hardcore criminal, or one who has developed a habit for
committing crimes. Deterrent theory believes in giving exemplary punishment
through adequate penalty."
In earlier days a criminal act was considered to be due to the influence of some evil
spirit on the offender for which he was unwillingly was made to do that wrong. Thus
to correct that offender the society retorted to severe deterrent policies and forms of
the government as this wrongful act was take as an challenge to the God and the
religion.

But in spite of all these efforts there are some lacunae in this theory. This theory is
unable to deter the activity of the hardcore criminals as the pain inflicted or even the
penalties are ineffective. The most mockery of this theory can be seen when the
criminals return to the prisons soon after their release, that is precisely because as this
theory is based on certain restrictions, these criminals are not effected at all by these
restrictions rather they tend to enjoy these restrictions more than they enjoy their
freedom.

Retributive Theory:
...An eye for an eye would turn the whole world blind- Mahatma Gandhi
The most stringent and harsh of all theories retributive theory believes to end the
crime in itself. This theory underlines the idea of vengeance and revenge rather than
that of social welfare and security. Punishment of the offender provides some kind
solace to the victim or to the family members of the victim of the crime, who has
suffered out of the action of the offender and prevents reprisals from them to the
offender or his family. The only reason for keeping the offender in prison under
unpleasant circumstances would be the vengeful pleasure of sufferer and his family.
J.M.Finnis argues in favour of retributism by mentioning it as a balance of fairness in
the distribution of advantages and disadvantages by restraining his will. Retributivists
believe that considerations under social protection may serve a minimal purpose of
the punishment. Traditional retributism relied on punishing the intrinsic value of the
offence and thus resort to very harsh methods. This theory is based on the same
principle as the deterrent theory, the Utilitarian theory. To look into more precisely
both these theories involve the exercise of control over the emotional instinctual
forces that condition such actions. This includes our sense of hatred towards the
criminals and a reliance on him as a butt of aggressive outbursts.

Sir Walter Moberly states that the punishment is deemed to give the men their dues.
"Punishment serves to express and to and to satisfy the righteous indignation which a
healthy community treats as transgression. As such it is an end in itself."

"The utilitarian theories are forward looking; they are concerned with the
consequences of punishment rather than the wrong done, which, being in the past,
cannot be altered. A retributive theory, on the other hand, sees the primary
justification in the fact that an offence has been committed which deserves the
punishment of the offender." As Kant argues in a famous passage:
"Judicial punishment can never be used merely as a means to promote some other
good for the criminal himself or civil society, but 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... He
must first of all be found to be deserving of punishment before any consideration is
given of the utility of this punishment for himself or his fellow citizens."

"Kant argues that retribution is not just a necessary condition for punishment but also
a sufficient one. Punishment is an end in itself. Retribution could also be said to be the
'natural' justification" , in the sense that man thinks it quite natural and just that a bad
person ought to be punished and a good person rewarded.
However 'natural' retribution might seem, it can also be seen as Bentham saw it, that
is as adding one evil to another, base and repugnant, or as an act of wrath or
vengeance. Therefore as we consider divine punishment we must bear in mind, as
Rowell says, The doctrine of hell was framed in terms of a retributive theory of
punishment, the wicked receiving their just deserts, with no thought of the possible
reformation of the offender. In so far as there was a deterrent element, it related to the
sanction hell provided for ensuring moral conduct during a man's earthly life.

Thus the researcher concludes that this theory closely related to that of expiation as
the pain inflicted compensates for the pleasure derived by the offender. Though not in
anymore contention in the modern arena but its significance cannot be totally ruled
out as fear still plays an important role in the minds of various first time offenders.
But the researcher feels that the basis of this theory i.e. vengeance is not expected in a
civilized society. This theory has been severely criticized by modern day penologists
and is redundant in the present punishments.

Preventive Theory:
Unlike the former theories, this theory aims to prevent the crime rather then avenging
it. Looking at punishments from a more humane perspective it rests on the fact that
the need of a punishment for a crime arises out of mere social needs i.e. while sending
the criminals to the prisons the society is in turn trying to prevent the offender from
doing any other crime and thus protecting the society from any anti-social elements.

Fitchte in order to explain this in greater details puts forward the an illustration, An
owner of the land puts an notice that trespassers would be prosecuted. He does not
want an actual trespasser and to have the trouble and expense of setting the law in
motion against him. He hopes that the threat would render any such action
unnecessary; his aim is not to punish trespass but to prevent it. But if trespass still
takes place he undertakes prosecution. Thus the instrument which he devised
originally consist of a general warning and not any particular convictions.

Thus it must be quite clear now by the illustration that the law aims at providing
general threats but not convictions at the beginning itself. Even utilitarian such as
Bentham have also supported this theory as it has been able to discourage the
criminals from doing a wrong and that also without performing any severity on the
criminals. The present day prisons are fallout of this theory. The preventive theory
can be explained in the context of imprisonment as separating the criminals from the
society and thus preventing any further crime by that offender and also by putting
certain restrictions on the criminal it would prevent the criminal from committing any
offence in the future. Supporters of this theory may also take Capital Punishment to
be a part of this theory. A serious and diligent rehabilitation program would succeed
in turning a high percentage of criminals away from a life of crime. There are,
however, many reasons why rehabilitation programs are not commonly in effect in
our prisons. Most politicians and a high proportion of the public do not believe in
rehabilitation as a desirable goal. The idea of rehabilitation is considered
mollycoddling. What they want is retribution, revenge, punishment and suffering.

Thus one an easily say that preventive theory though aiming at preventing the crime
to happen in the future but it still has some aspects which are questioned by the
penologists as it contains in its techniques which are quite harsh in nature. The major
problem with these type of theories is that they make the criminal more violent rather
than changing him to a better individual. The last theory of punishment being the
most humane of all looks into this aspect.

Reformative Theory:
But that is the beginning of a new story--the story of the gradual Renewal of a man,
the story of his gradual regeneration, of his Passing from one world into another, of
his initiation into a new Unknown life.

The author of the above excerpt in this concluding paragraph underlines the basic
principle of the reformative theory. It emphasizes on the renewal of the criminal and
the beginning of a new life for him.

The most recent and the most humane of all theories is based on the principle of
reforming the legal offenders through individual treatment. Not looking to criminals
as inhuman this theory puts forward the changing nature of the modern society where
it presently looks into the fact that all other theories have failed to put forward any
such stable theory, which would prevent the occurrence of further crimes. Though it
may be true that there has been a greater onset of crimes today than it was earlier, but
it may also be argued that many of the criminals are also getting reformed and leading
a law-abiding life all-together. Reformative techniques are much close to the deterrent
techniques.

Reform in the deterrent sense implied that through being punished the offender
recognized his guilt and wished to change. The formal and impressive condemnation
by society involved in punishment was thought to be an important means of bring
about that recognition. Similarly, others may be brought to awareness that crime is
wrong through another's punishment and, as it were, 'reform' before they actually
commit a crime. But, although this is indeed one aspect of rehabilitation, as a theory
rehabilitation is more usually associated with treatment of the offender. A few think
that all offenders are 'ill' and need to be 'cured' but the majority of criminologists see
punishment as a means of educating the offender. This has been the ideal and
therefore the most popular theory in recent years. However, there is reason to believe
this theory is in decline and Lord Windlesham has noted that if public opinion affects
penal policy, as he thinks it does, then there will be more interest shown in retribution
in the future.

This theory aims at rehabilitating the offender to the norms of the society i.e. into
law-abiding member. This theory condemns all kinds of corporal punishments. These
aim at transforming the law-offenders in such a way that the inmates of the
peno-correctional institutions can lead a life like a normal citizen. These prisons or
correctional homes as they are termed humanly treat the inmates and release them as
soon as they feel that they are fit to mix up with the other members of the community.
The reformation generally takes place either through probation or parole as measures
for reforming criminals. It looks at the seclusion of the criminals from the society as
an attempt to reform them and to prevent the person from social ostracism. Though
this theory works stupendously for the correction of juveniles and first time criminals,
but in the case of hardened criminals this theory may not work with the effectiveness.
In these cases come the importance of the deterrence theories and the retributive
theories. Thus each of these four theories have their own pros and cons and each
being important in it, none can be ignored as such.

Conclusion
The researcher at the end of this project finds punishment as a method of social
control. He would like to summarize his understanding about the teories of
punishment:
# There is an attempt to portray punishments as a method of inflicting of unpleasant
circumstances over the offender.

# Though certain theories like the reformative and preventive rely upon humanitarian
modes of punishment, but these have a weakness against the hardcore criminals.

# Punishments such as the retributive and deterrence though the use of fear as an
instrument to curb the occurrence of crime helps in controlling the criminals up to a
certain extent. As these employ the idea of revenge and vengeance these are much
more harsher than others.

KINDS OF PUNISHMENT
The following seven kinds of punishment are discussed below, namely,-
(1) Capital punishment
(2) Deportation
(3) Corporal punishment
(4) Imprisonment
(5) Solitary confinement
(6) Indeterminate sentence
(7) Fine.

CAPITAL PUNISHMENT
In the history of punishments, capital punishment has always occupied a very
important place. In ancient times, and even in the middle ages, sentencing offenders to
death was a very common kind of punishment. Even what might be considered as
minor offences in modern criminal law, attracted the death penalty in those days. In
England, there was a time when there were as many as 200 felonies for which the
punishment was death. Even the offence of theft of property worth more than two
shillings would attract the penalty of death. Till the middle of the seventeenth century
in England, even the penalty for the offence of forgery was death.
Then there arose a movement in the 18th century, which raised its voice of
protest against the in human of punishment. Bentham can be considered as the
spearhead
of this movement. He analysed the causes of crime, and showed how
punishment would serve its purpose. According to him, punishment itself was an evil,
but a necessary evil. No punishment was to be inflicted unless it brought greater good.
The object of capital punishment is said to be two-fold. By putting the
offender to death, it may instill fear in the minds of others and teach them a lesson.
Secondly, if the offender is an incorrigible one, by putting him to death, it prevents
the repetition of the crime by that person on a permanent basis. But it is evident that
this punishment is not based on the reformative object of punishment, in the sense that
it is a step of despair.
There have been many arguments for and against this kind of punishment. In a
case before the Supreme Court, them accused killed his ailing wife, as he could not
provide the money for her operation. He also killed his two children, as there would
be no one to care for them after the mother. However, the crime was committed out of
poverty, and not for just, vengeance or gain. In the circumstances, the Supreme Court
held that life imprisonment, and not capital punishment, was the appropriate sentence
(State of U.P. V. M.K. Anthony, A.I.R. 1985 S.C. 48).
In Bachan Singh V. State of Punjab (1980 2 S.C.C. 684), the Supreme Court
was faced with the question whether the death penalty imposable for some offences
under the Indian Penal Code is constitutionally valid By a four-to-one majority
verdict, the Supreme Court ruled that the death penalty is constitutionally valid, and
does not constitute an "unreasonable, cruel or unusual punishment." The majority
pointed out that the death penalty is to be imposed only for "special reasons" and only
in the rarest of rare cases. However, such provisions cannot be said to be violative of
Articles 14, 19 and 21 of the Constitution. It was also observed that the fact that India
had accepted the International Covenant of Civil and Political Rights does not affect
the constitutional validity of the death sentence. The voice of dissent came from
justice Bhagwati, who delivered a separate verdict to the effect that section 302 of the
Code is void, in so far as it provides for imposition of a death penalty (for murder) as
an alternative to life imprisonment.
The Supreme Court has taken a stern view of recent "dowry deaths" and
"wife-burning tragedies", and has refused to commute sentences imposed on such
"murders" by lower Courts. The following observations of the Supreme Court in
Vasant Pawar V. State of Maharashtra (1980 Supp. S.C.C. 194) are interesting:
"Wife-burning tragedies are becoming too frequent for the country to be
complacentLaw must rise to the challenge of shocking criminology, especially
when helpless women are the victims, and the crime is committed in the secrecy of
the husband's home."
A reference may be made to yet another decision of the Supreme Court in a
wife-burning tragedy which took place in Delhi (State V. Laxman Kumar & others), a
detailed discussion whereof appears in the Appendix (at the end of the book).

a) Arguments against Capital Punishment

(i) Those who denounce this kind of punishment argue that capital punishment has not
served its deterrent object at all. For example, in certain States of the United States of
America, where the death penalty has been abolished, there are fewer serious crimes
than in other States, where capital punishment is still retained. If capital punishment
has the deterrent effect which it is supposed to have, crimes in the former States ought
to have increased, and crimes in the latter States ought to have decreased. Therefore,
it is argued that the statistics do not prove the deterrent effect of capital punishment.
Abolition of capital punishment has been a recent experiment in England and the
immediate results are indeed encouraging. The experiment is worth a trial in India
also. Subsequent to its abolition in England, in July 1983, a private member's Bill was
introduced in the House of Commons for restoring the death penalty in England after
fourteen years of its abolition. However, the Bill was defeated, with 233 votes in
favour and 368 votes cast against the proposal.

(ii) Capital punishment may be preventive, but at what cost, and under what
circumstances ? Crimes are very often committed, not by persons who are normal
human beings, or under normal circumstances, it is not even certain that t murder
would repeat the murder again. He might have committed this heinous crime under
extraordinary circumstances. If the State were to kill that man, it could, at best, have
only the dubious satisfaction of having prevented a crime which probably would
never have been committed. But it must be noted that, in such a case, in its anxiety to
prevent a crime, the State itself has committed the greatest crime of taking away the
life of a man. As Professor Henting put it"I see in capital punishment a means of
punishment whose advantages can be obtained by other means, and whose
disadvantages cannot be prevented in any other way than by abolishing it".

(iii) Professor Henting draws our attention to another salient defect of the capital
punishment: No thinking person can claim that our law of evidence and the law of
procedure are foolproof, and always lead us inevitably to the truth. It is possible that
there are judicial errors, and in such a case, capital punishment, once it is awarded and
the person executed, cannot be revoked.

Thus, there have been cases where after execution of an alleged murderer, the true
murderer is caught. But can the mischief be remedied ? It is argued that it is, therefore,
better to save nine murderers from capital punishment than to inflict it on one who
may be, in fact, innocent.It is, therefore, argued that this form of extreme punishment
is neither effective nor just, and should be abolished.

b) Arguments in favour of Capital Punishment

(i) On the other hand, those who advocate capital punishment argue that there are
some offenders who are not only incorrigible, but who are immensely dangerous to
society, and there is no reason why society should be burdened with maintaining such
people. If you cannot cure, and If this incorrigible element is harmful to human
society, why not remove it altogether ?
(ii) Another argument pressed in favour of capital punishment is that it must be
remembered that punishment by the State is a substitute for private revenge. If a
murderer is not punished with death, it is quite possible that other relatives of the
victim might murder the murder, and thus a chain of murders might set in. So long as
human emotions are powerful, so long as the powers of vengeance prevail, it is argued,
capital punishment is a necessary kind of punishment.
In conclusion, it may be said that though capital punishment serves some
purpose, in the present context of our respect for human dignity and the possibility of
reforming the character of the offenders, an experiment of abolishing capital
punishment would be a very worthy attempt.

c) EFFECTIVE OF DELAY IN EXECUTING A DEATH SENTENCE :

Very often, there is a considerable delay in executing a death sentence
awarded to a convict. This delay may be attributed to the procedural delays involved
in Courts, and often by mercy Petitions of the relatives in a bid to save the life of the
convict.
In a rather surprising decision (delivered in February, 1983), Justice O.
Chinnappa Reddy and Justice R.B. Mishra of the Supreme Court held that if there is a
delay of more than two years in executing a death sentence, the appropriate relief is to
vacate the death sentence and commute it to life imprisonment. The Court held that
any delay exceeding two years in the execution of a sentence should be considered
sufficient to entitle the person to invoke Article 21 of the Constitution, and demand
the quashing of the death sentence, the cause of delay, in such cases, being
immaterial. (T.V. Vatheeslwaran V. State of Tamil Nadu, 1983 Cri. L.J. 481).
The decision in T.V. Vatheeswaran's case (above) was, however, overruled by
a three-member Bench of the Supreme Court (consisting of Chief Justice
Chandrachud, justice Tulzapurkar and Justice Varadrajan) only a month later (in
March 1983), when the Court held that two-year delay in Executing the death
sentence does not, by itself, give a right to the offender to have it converted into a
sentence f life imprisonment. No doubt, prolonged delay is an important consideration
in such cases, but no hard and fast rule should be laid down to give a right to the
murderer to have his death sentence quashed. As observed by the Court, very often,
four or five elapse between the sentence of death imposed by the Sessions Court and
rejection to the final appeal by the Supreme Court. To this may be added the time
taken by the President or the Governor to consider mercy petitions. Therefore, the
Court observed, if such a hard and fast rule is laid down, it will become an object of
ridicule, by permitting a person to resort to frivolous proceedings in order to delay the
sentence by two years or more. (Sher Singh and Others V. State of Punjab, 1983 Cr.
L.J. 803).
In Sher Singh's case (above), the Supreme Court also reiterated that the death
sentence is constitutionally valid and permissible within the constraints prescribed by
the Supreme Court (viz., that it should be imposed only in the rarest of rare cases).
Following the later decision of the Supreme Court, a Full Bench of the Madras
High Court ! has also held that delay in execution of a death sentence is no ground in
itself for modification of such sentence to one of life imprisonment, the circumstances
causing the delay being immaterial. (K.G. Pillai V. Government of India, A.I.R. 1986
Mad. 204).
DEPORTATION

Next to capital punishment, a method of elimination of incorrigible or

dangerous offenders is the punishment of deportation. In India, it used to be called
transportation. This could hardly be a solution to the problem. If a man is dangerous
in one society and if he is let loose in another society, he is likely to be equally
dangerous there also. Even if a separate colony or settlement were to be created for
deportation of such offenders, the problem of maintaining such a settlement might
create a number of difficulties, in addition to such a colony having a degrading
influence on the character of the offenders.
This kind of punishment was abolished in England a long time ago, and it has
also now been abolished in India.

CORPORAL PUNISHMENT
Corporal punishment includes modulation, flogging (or whipping) and torture.
This was a very common kind of punishment in the ancient and the medieval times. In
ancient Iran and ancient India, and even in times of the Mughal Rulers and the
Marathas, whipping was commonly resorted to. Elsewhere also, right upto the Middle
Ages, whipping was one of the commonest form of punishment. It was also very
severe form of punishment, and many prisoners bled to death as a result of the
wounds received by the lashes. Whipping in public was also quite common, and we
read, in history, of cases where the whipping continued mercilessly even after the
prisoner had fainted.

The main object f this kind of punishment is deterrence. It has been long ago
realized that this kind of punishment is not only inhuman, but also ineffective. The
person who undergoes this kind of punishment may become more antisocial than he
was before. The criminal tendencies in him might be hardened and reforming him
might become impossible. Though whipping was one of the kinds of punishment
originally provided in the Penal Code, it was abolished in 1955. However, flogging
has recently been reintroduced as a form of punishment in Pakistan.
A few criminologists have suggested that whipping should be reintroduced as
a punishment in India. They have argued that imprisonment, by itself, does not have
the same deterrent value as whipping, which would instill a graver fear in the mind of
the prospective offender. However, there seems to be very little merit in going back to
an almost barbaric form of punishment. Not even in cases of brutal offences can
whipping be justified, for by whipping a man whom society may call a brute, society
will only transform him either into an enemy of a coward. Whipping produces only
the rougher kind of criminal, the more maladjusted human being, the braver
desperado, -or else a broken-down man. As Dr. Barnes once observed, "In never
know a convict benefited by flagellation. The beaten may become a more desperate
character."

IMPRISONMENT
Imprisonment, if properly used, may serve all the three important objects of
the punishment. It may be a deterrent, because it makes an example of the offender to
others. It may be preventive, because it disables the offender, at least for some time,
from repeating the offence, and it might, if properly used, give opportunities for
reforming the character of the offender.

SOLITAY CONFINEMENT
Solitary confinement is an aggravated kind of imprisonment. This kind of
punishment exploits fully the sociable nature of man, and by denying him the society
of his fellow beings, it seeks to inflict pain on him.
It has been felt by many criminologists that this kind of punishment is
inhuman and perverse. It is possible that this might turn a man of sound mental health
into a lunatic. If used in excess, it may inflict permanent harm on the offender, though
in limited cases, if used in proportion, this kind of punishment may be useful. But if
those limits are surpassed, it is likely to be unnecessarily cruel.
Ss. 73 and 74 of the I.P.C. lay down the limits beyond which solitary
confinement cannot be imposed under the Indian law. Thus, the total period of
solitary confinement cannot exceed three months in any case; nor can it exceed
fourteen days at a time, with intervals of fourteen days in between (or seven days at a
time with seven days intervals in between, in case the substantive sentence exceeds
three months' imprisonment).

INDETERMINATE SENTENCE
Another kind of imprisonment, which may serve the reformative purpose to a
greater extent, and which is to-day extensively used in the United States, is the
method of awarding an indeterminate sentence. In this case, the accused is not
sentenced to imprisonment for any fixed period. The period is left in determinate at
the time of the award, and when the accused shows improvement, the sentence may
be terminated. This kind of sentence serves the reformative purpose to a considerable
extent, as even in prison, the offender has a very strong motive to reform himself.

FINE
Some criminologists are of the opinion that the punishment of fine, in addition
to serving its deterrent object, also serves three more purposes. Firstly, it may help to
support the prisoners; secondly, it might provide expenses for the prosecution of the
prisoners, and thirdly, it may be used for compensating the aggrieved party.
This kind of punishment may be very useful in cases of criminals who are not
hardened. But care must be taken to see that heavy and excessive fines, which would
almost result in forfeiture of the property of the offender, should not be inflicted.
Moreover, facilities for collecting fines must be created in such a way that levying of
fine does not inevitably drive the offender to the prison on account of his inability to
pay the fine.

PRIMARY AND SANCTIONING RIGHTS

Civil proceedings are 4enforced with the object of enforcing a person's rights.
These rights may be classified into primary and sanctioning rights.
A primary right is a right arising out of a contract r as a jus in rem. A
sanctioning right is one which arises out of the violation of another right. If X enters
into a valid contract, his right to have the contract performed is a primary right, and if
the contract is broken, his right to damages for the loss caused to him by the breach of
contract is a sanctioning right. The right not to be assaulted is primary. But the right to
obtain pecuniary compensation from a person who has assaulted another is a
sanctioning right.
A primary right may be enforced by specific enforcement, and a sanctioning
right is enforced by sanctioning enforcement. Specific enforcement lies in either (a)
specific performance, e.g. by ordering delivery of an article not available in the open
market, or (b) specific restitution, e.g. restoring a person to his status quo.
Sanctioning rights are : (1) the right to be compensated (by damages) by the
wrong-doer, or (2) the right to exact the imposition of pecuniary penalty on the
wrong-doer by penal action. The first is divided into two types: (a) Restitution and (b)
Penal redress. Restitution lies in restoring the plaintiff to his original position, while
penal redress involves restitution of all benefits which the offender derives for his
wrongful act, in addition to a full redress for the plaintiff's loss.
Another method of enforcement, which is extra judicial, may be enforced by
specific or sanctional rights. It is specific when the right is specific when the right is
maintained and the status quo restored. It is sanctional in the case of distress damage
feasant, as for instance, in the case of stray animals.

THE PRIMARY & SECONDARY FUNCTIONS OF THE COURT OF

LAW
The primary function of a Court of law is the administration of justice, viz.,
the application by the State of the sanction of physical force to the rules of justice. But
there are four secondary functions which the Court performs. These secondary
functions are :

a) PETITION OF RIGHT
In England, proceedings against the Crown can be taken only by a petition of
right in a Court of law, which will determine the rights of the parties. This is not
administration of justice, strictly and properly so called, for the essential element of
coercive force is lacking. The State, being the judge of its own cause, cannot exercise
constraint against itself.
b) DECLARATION OF RIGHT
A suitor may seek the assistance of a Court of Justice, not by way of obtaining
redress, but by way of having it declared that he has or has not a certain right. The
Court of justice, after hearing the parties, either makes or refuses to make the
necessary declaratory order. Such suits are known as declaratory suits.
c) ADMINISTRATION
Courts of Justice sometimes undertake the management and distribution of
property, e.g. administration of a trust, liquidation of a company etc.
d) TITLES OF RIGHT
These are all those cases in which judicial decrees are employed as the means
of creating, transferring and extinguishing right, e.g. an adjudication of bankruptcy, a
grant of probate, letters of administration etc.
The above are secondary functions of law as pointed out by Salmond. Dr.
Sethna takes a different view. According to him, "functions such as those of
declaration of rights, for example, interpretation of documents and trusts, wills, and
advising persons such as trustees, executors, and administrators, and the deciding of
titles of rights, for example, creating, assigning and extinguishing rights, are not
secondary, but are truly, and should be regarded really, as the primary and ordinary
functions of law Courts."