LAW OF CRIMES PROJECT

ON

“ROLE OF STATE IN DETECTING,

CONTROLLING AND PUNISHING
CRIMES.”

SUBMITTED TO:

DR. ROSE VERGHESE

SUBMITTED BY:

AISHWARYA BHARADWAJ

B.A.LLB HNRS(3RD SEMESTER)

Jamia milia islamia

 Acknowledgment

I have made my project for crimes on “role of state in detecting, controlling and punishing
crimes”. I would therefore express my gratitude to my crimes teacher Dr. Rose Verghese
without who’s support and guidance the completion of this project was not possible. It is my
pious duty to express my deep obligation towards my reputed teacher for his kindness.

I should not forget to appreciate to the administrative staff and library staff of the Faculty of
Law, Jamia Milia Islamia for their untired cooperation to complete this project.

Aishwarya Bharadwaj
 Contents

1. Introduction
2. Responsibility of state in detecting, controlling and punishing crimes.
3. Mens rea
4. Actus reus
5. Controlling function
6. Function of police

 Patrolling and survelleince

 Preventive function
 Investigation
 Assist the prosecutor
 Identification
 Search and seizure
7. Punishment
8. Theories of punishment

 Deterrent theory
 Retributive theory
 Preventive theory
 Reformative theory
9. Relevant case laws

 Macchi singh and others vs. the state of Punjab on 20 July, 1983
 State Of Kerala vs Navas @ Mula Navas on 9 February, 2010
 Bachan Singh vs State Of Punjab on 9 May, 1980
 Bhullar case
10. Life imprisonment cases

 Om Prakash vs. state of Haryana

 State of Haryana vs, Jagdish
11. Recent cases

 Ajmal Kasab case

 Afzal Guru case
12. Conclusion.
Introduction:

Criminal law governs crimes, including felonies and misdemeanors. Crimes are generally
referred to as offenses against the state. The standard of proof for crimes is "beyond a
reasonable doubt." For information on particular crimes or issues surrounding the criminal law,
please select from one of the topic below.

Criminal law in India means offenses against the state, it includes felonies and misdemeanors.
The standard of proof for crimes is "beyond a reasonable doubt." Criminal law is governed by
Indian penal Code,Crpc,evicenceActetc.

A body of rules and statutes that defines conduct prohibited by the government because it
threatens and harms public safety and welfare and that establishes punishment to be imposed
for the commission of suchacts.

The term criminal law means crimes that may establish punishments. In contrast, Criminal
Procedure describes the process through which the criminal laws are enforced. For example,
the law prohibiting murder is a substantive criminal law. The manner in which government
enforces this substantive law through the gathering of evidence and prosecution is generally
considered a procedural matter.

Crimes are usually categorized as felonies or misdemeanors based on their nature and the
maximum punishment that can be imposed. A felony involves serious misconduct that is
punishable by death or by imprisonment for more than one year. Most state criminal laws
subdivide felonies into different classes with varying degrees of punishment. Crimes that do
not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for
which the law prescribes punishment of no more than one year in prison. Lesser offenses, such
as traffic and parking infractions, are often called violations and are considered a part of
criminal law.
The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of
some act. Scholars label this the requirement of an actusreus or guilty act. Some crimes –
particularly modern regulatory offenses – require no more, and they are known as strict
liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a
vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the
potentially severe consequences of criminal conviction, judges at common law also sought
proof of an intent to do some bad thing, the mensrea or guilty mind. As to crimes of which
both actusreus and mensrea are requirements, judges have concluded that the elements must be
present at precisely the same moment and it is not enough that they occurred sequentially at
different times.
The responsibility of state in detecting, controlling and punishing
crimes.

Detection of crimes
The term crime does not, in modern times, have any simple and universally accepted
definition, but one definition is that a crime, also called an offence or a criminal offence, is an
act harmful not only to some individual, but also to the community or the state (a public
wrong). Such acts are forbidden and punishable by law.

The idea that acts like murder, rape and theft are prohibited exists all around the world, and
probably has universal moral basis. What precisely is a criminal offence is defined by
criminal law of each country. While many have a catalogue of crimes called the criminal
code, in some common law countries no such comprehensive statute exists.

The state (government) has the power to severely restrict one's liberty for committing a
crime. Therefore, in modern societies, a criminal procedure must be adhered to during the
investigation and trial. Only if found guilty, the offender may be sentenced to punishment
such as community sentence, imprisonment, life imprisonment or, in some jurisdictions, even
death.To be classified as a crime, the act of doing something bad (actus reus) must be usually
accompanied by the intention to do something bad (mens rea), with certain exceptions (strict
liability)

Actus reus:
Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may
be accomplished by an action, by threat of action, or exceptionally, by an omission to act,
which is a legal duty to act. For example, the act of A striking B might suffice, or a parent's
failure to give food to a young child also may provide the actusreus for a crime.

Actus reus, sometimes called the external element or the objective element of a crime, is
the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in
combination with the mens rea, "guilty mind", produces criminal liability in the common
law-based criminal law jurisdictions of Canada, Australia, India, Pakistan, South Africa, New
Zealand, England, Ghana, Wales, Ireland and the United States of America. In the United
States of America, some crimes also require proof of an attendant circumstance.

Where the actus reus is a failure to act, there must be a duty of care. A duty can arise
through contract, a voluntary undertaking, a blood relation with whom one lives, and
occasionally through one's official position. Duty also can arise from one's own creation of a
dangerous situation. On the other hand, it was held in the U.K. that switching off the life
support of someone in a persistent vegetative state is an omission to act and not criminal.
Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the
patient's best interests, no crime takes place. In this case it was held that since a PVS patient
could not give or withhold consent to medical treatment, it was for the doctors to decide
whether treatment was in the patient's best interest. It was reasonable for them to conclude
that treatment was not in the patient's best interest, and should therefore be stopped, when
there was no prospect of improvement. It was never lawful to take active steps to cause or
accelerate death, although in certain circumstances it was lawful to withhold life sustaining
treatment, including feeding, without which the patient would die.

An actus reus may be nullified by an absence of causation. For example, a crime involves
harm to a person, the person's action must be the but for cause and proximate cause of the
harm. If more than one cause exists (e.g. harm comes at the hands of more than one culprit)
the act must have "more than a slight or trifling link" to the harm.

Causation is not broken simply because a victim is particularly vulnerable. This is known as
the thin skull rule. However, it may be broken by an intervening act (novus actus
interveniens) of a third party, the victim's own conduct, or another unpredictable event. A
mistake in medical treatment typically will not sever the chain, unless the mistakes are in
themselves "so potent in causing death."

Mens Rea:

Mensrea is another Latin phrase, meaning "guilty mind". This is the mental element of the
crime. A guilty mind means an intention to commit some wrongful act. Intention under
criminal law is separate from a person's motivealthough motive does not exist in Scots law).

Mens rea is Latin for "guilty mind".In criminal law, it is viewed as one of the
necessary elements of some crimes. The standard common law test of criminal liability is
usually expressed in the Latin phrase,actus non facitreum nisi mens sit rea, which means "the
act is not culpable unless the mind is guilty". Thus, in jurisdictions with due process, there
must be an actusreus, or "guilty act," accompanied by some level ofmensrea to constitute the
crime with which the defendant is charged (see the technical requirement ofconcurrence). As
a general rule, criminal liability does not attach to a person who merely acted with the
absence of mental fault. The exception is strict liability crimes.

In civil law, it is usually not necessary to prove a subjective mental element to establish
liability for breach ofcontract or tort, for example. However, if a tort is intentionally
committed or a contract is intentionally breached, such intent may increase the scope of
liability as well as the measure of damages payable to the plaintiff.

A lower threshold of mensrea is satisfied when a defendant recognises an act is dangerous but
decides to commit it anyway. This is recklessness. It is the mental state of mind of the person
at the time the actusreus was committed. For instance, if C tears a gas meter from a wall to
get the money inside, and knows this will let flammable gas escape into a neighbour's house,
he could be liable for poisoning. Courts often consider whether the actor did recognize the
danger, or alternatively ought to have recognised a risk.Of course, a requirement only that
one oughtto have recognized a danger (though he did not) is tantamount to erasing intent as a
requirement. In this way, the importance of mensrea has been reduced in some areas of the
criminal law but is obviously still an important part in the criminal system.

Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the
punishment but this is not always the case. A killing committed with specific intent to kill or
with conscious recognition that death or serious bodily harm will result, would be murder,
whereas a killing effected by reckless acts lacking such a consciousness could be
manslaughter.On the other hand, it matters not who is actually harmed through a defendant's
actions. The doctrine of transferred malice means, for instance, that if a man intends to strike
a person with his belt, but the belt bounces off and hits another, mensrea is transferred from
the intended target to the person who actually was struck.
While every crime violates the law, not every violation of the law counts as a crime. Breaches
of private law (torts and breaches of contract) are not automatically punished by the state, but
can be enforced through civil procedure.
In recent times, science has provided substantial aid to crime detection. Because anything in
the physical universe has the potential of becoming an item of evidence in an investigation, a
wide variety of procedures may be used in analyzing and interpreting evidence in a criminal
case. These procedures include handwriting analysis, forensic photography, crime scene
documentation, metallurgical investigations, chain of custody, entomology, and blood
spatters. The first thing you do after securing a crime scene is document it. Always take
pictures. They are the best records available. They show the crime scene as it was found;
where objects are in relation to other objects, victims, rooms, etc. Take notes. Describe the
scene, it's over all conditions. Describe rooms, lights, shades, locks, food; anything that can
indicate a time frame, condition of scene or that might have even the slightest evidentiary
significance. Check dates on mail and newspapers. Diagram the crime scene. Take
measurements. Photos are good to show where an object is in relation to another object, but
measurements tell exactly how far. True handwriting analysis involves painstaking
examination of the design, shape and structure of handwriting to determine authorship of a
given handwriting sample. The basic principle underlying handwriting analysis is that no two
people write the exact same thing the exact same way. Every person develops unique
peculiarities and characteristics in their handwriting. Handwriting analysis looks at letter
formations, connecting strokes between the letters, upstrokes, retraces, down strokes, spacing,
baseline, curves.

Criminal law sanctions require the enactment of criminal law norms, the issuing of particular
judgments by courts and, last, the physical infliction of criminal sanctions. All those
functions are currently controlled by the state. Yet, some legal systems were almost entirely
private and contemporary theorists challenge the public control over some aspects concerning
the infliction of criminal punishment. Most significantly some recent legal reforms involve
privatization of central components of the criminal law system: private prisons, private
enforcement mechanisms, shame penalties etc.
Controlling crime:

Every state has its own rules and regulation which makes sure that the working of the state is
carried on properly.The state owes a duty of responsibility and care towards its people. If
there is any unwanted activity which violates the law of the state should be taken of by the
state as a whole. The state has its soldiers i.e., the police to take care of any unscrupulous
activity. It is here the duty of the police to catch hold of the wrong doer and bring them to the
court of law.

Functions of police

 Patrolling and surveillance:

Patrolling is the visible general function for the purpose of general watch and ward.
Excepting the traffic control police, static parties-pickets are in vogue. There is 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 village
panchayat system, able-bodied men in the age-group of 18 to 24 are also utilized on
hononary basis. But in insurgency prone areas, armed police units go about in a
roving commission, generally in an unplanned manner. Generally there is no separate
patrolling division in the police forces located in cities and bigger townships.
Surceillance is yet another important function of the police which is based on anti-
crimework. Presently, this work depends entirely on dossiers and watch-charts kept in
at the police station. The information about these criminals is kept on cards arranged
alphabetically in modus operandi boxes and their photographs are exhibited in the
police station.

 Preventive function

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 power of the police are contained in the code of criminal procedure.
Sections 71 and 73 of the code, furtherafford adequate protection to the police
officials against legal action for wrongful restraint of an innocent person who was
apprehended and and kept in a police custody under a bona fide belief that he was an
offendor or a law-violator. Whenever thepolice feels that the investigation cannot be
completed within the period of 24 hours fixed by section 57, cr. Pc. 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
judicial magistrate.
 Investigation

The purpose of investigationis to collect evidence and apprehend the culprit. It is the
duty of everyone 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 question relating to such cases. A witness
may, however , avoid to give those answers which will expose him to any criminal
charge. The police may write down the answer orally given by the witness. The
witness has neither to give answers in writing nor sign those recorded by the police. In
investigation, a police officers 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. The witness
appearing in police investigation may take help of a lawyer in answering written
question put to him/her. 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.
The investigating authorities should focus their attention on the following :
1. A criminal act may involve lot of motives therefore, the investigation officer
should carefully examine each and every possiple motive of the offendor adopting
the method of elimination. It may be honour killing, extreme personal attachment,
failure in love affair, 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
faciliting 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 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.

 Assist the prosecutor:

Besides making arrests, the police must also actively assist the prosecutor to conduct
prosecution of cases in law court. 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 shoul be praised on the points on which the prosecutors
desires to examine them before they are actually brought in the witness box.
An informal or preliminary interview with witnesses could not only save the
prosecutor from the embarrassment before the court but also save the witness 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 witness should be avoided
unless it is absolutely necessary, so also multiplicity of witness should be avoided.
This is save valuable evidence being lost to the prosecution. Greater care should me
exercised by the prosecutor while examining an accomplice or an approver 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 minimize chances of offendor’s escape on the plea that a
proper charge has not been framed.

 Identification:

In addition to the usual function 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 filling
records. 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.

 Search and seizure:

The police also conducts search and seizure. 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 warrant issued by a magistrate, it must contain :
1. The information as to the statement of facts showing probable cause that a crime
has been committed.
2. A specification of a place or places to be searched.
3. 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 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 criminal action against the
police or it may be lead to acquittal of the accused. The legal provisions relating to
search and seizure are so framed as maintain a balance between the security of person
on the one hand and the protection to police in discharging its duty properly on the
other.

Punishment:

Each society has its own way of social control for which it frames certain laws and also
mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first
thing to mention in relation to the definition of punishment is the ineffectiveness of
definitional barriers aimed to show that one or other of the proposed justifications of
punishments either logically include or logically excluded by definition.’ Punishment has the
following features:

 It involves the deprivation of certain normally recognized rights, or other measures

considered unpleasant.
 It is consequence of an offence.
 It is applied against the author of the offence
 It s applied by an organ of the system that made the act an offence

The kinds of punishment given are surely influenced by the kind of society one lives in.
Though during ancient period of history punishment was more severe as fear was taken as the
prime instrument in preventing crime. But with change in time and development of human
mind the punishment theories have become more tolerant to these criminals. Debunking the
stringent theories of punishment the modern society is seen in loosening its hold on the
criminals. The present scenario also witnesses the opposition of capital punishment as
inhumane, though it was a major form of punishing the criminals earlier. But it may also be
observed till recently the TALIBANS used quite a harsh method for suppression. The law
says that it does not really punish the individual but punishes the guilty mind.

As punishment generally is provided in Criminal Law it becomes imperative on our part to

know what crime or an offence really is. Here the researcher would like to quote Salmond’s
definition of crime: Crime is an act deemed by law to be harmful for the society as a whole
though its immediate victim may be an individual. He further substantiates his point of view
through the following illustration a murderer injures primarily a particular victim, but its
blatant disregard of human life puts it beyond a mater of mere compensation between the
murderer and the victim’s family.

Thus it becomes very important on behalf of the society to punish the offenders. Punishment
can be used as a method of educing the incidence of criminal behavior either by deterring the
potential offenders or by incapacitating and preventing them from repeating the offence or by
reforming them into law-abiding citizens. Theories of punishment, contain generally policies
regarding theories of punishment namely: Deterrent, Retributive, Preventive and
Reformative.
Punishment, whether legal or divine, needs justification. Because the justification of legal
punishment has been given greater consideration by philosophers than has the justification of
divine punishment by theologians, the philosophical concepts and 'theories of punishment’
(i.e. the justifications) will be used as a basis for considering divine punishment.

Many a time this punishment has been termed as a mode of social protection. The affinity of
punishment with many other measures involving deprivation by the state morally recognized
rights is generally evident. The justifiability of these measures in particular cases may well be
controversial, but it is hardly under fire. The attempt to give punishment the same
justification for punishment as for other compulsory measures imposed by the state does not
necessarily involve a particular standpoint on the issues of deterrence, reform or physical
incapacitation. Obviously the justification in terms of protection commits us to holding that
punishment may be effective in preventing social harms through one of these methods.

As punishments generally punish the guilty mind it becomes very important on the part of the
researcher to what crime really is. But it is quite difficult on the part of the researcher to say
whether or not there must be any place for the traditional forms of punishment. In today’s
world the major question that is raised by most of the penologist is that how far are present
‘humane’ methods of punishment like the reformative successful in their objective. It is
observed that prisons have become a place for breeding criminals not as a place of
reformation as it was meant to be.

It may be clearly said that the enactment of any law brings about two units in the society- the
law-abiders and the law-breakers. It is purpose of these theories of punishment to by any
means transform or change these law-breakers to the group of abiders.

The researcher due to certain constraints of limited time and knowledge is unable to cove the
area of the evolution of these theories separately but would include them in the second
chapter. The researcher would now like to move on to his first chapter in which he would be
vividly discussing ‘crime and punishment.’

The researcher in his first draft had included the chapter on the evolution of the theories from
the early ages to the modern era, but due to certain limitations included them and discussed
them during the due course of the project.

In different legal systems the forms of punishment may be different but it may be observed
that all arise out of some action or omission. All these constitute all moral as well as legal
wrongs such as murder, rape, littering, theft, trespass and many more. As crime is quite
different in different geographical area it is quite evident that the forms of punishment would
vary as it was mentioned earlier that punishment as well as crime are socially determined. A
type of action may be a crime in one society but not in another. For example euthanasia is an
offence in India, but in many European coutries such as Holland it is legalized. But there are
certain offences which are recognized almost universally like murder.

Durkheim explains crime, as crime exists in every society which do and do not have laws,
courts and the police. He asserts that all societies have crime, since all societies involve a
differentiation between two kinds of actions, those that are allowed and those that are
forbidden. He calls the latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the
society as a whole and dealt with sternly by the powerful arms of law. Punishment though
most times confused with imprisonment is something much different from it. Punishment
though most times confused only with sanctions may also be of moral nature like
ostracism.Punishment, whether legal or divine, needs justification. Because the justification
of legal punishment has been given greater consideration by philosophers than has the
justification of divine punishment by theologians, the philosophical concepts and 'theories of
punishment, (i.e. the justifications) will be used as a basis for considering divine punishment.

A complete definition will now be made in such a way as to include both legal and divine
punishment. A. Flew first suggests that punishment must be an evil, an unpleasantness to the
victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He
maintains that 'evil' carries too much moral flavour and also that it suggests positive
suffering. Mabbot states: The world is a worse place the more evil there is in it and perhaps
the more suffering. But it does not seem to me necessarily a worse place whenever men are
deprived of something they would like to retain; and this is the essence of modern
punishment. While deprivation may be a more appropriate description of modern punishment
this does not necessarily exempt it from being an evil. Nor does the suggestion that 'evil'
carries a moral flavour, for in fact the word punishment itself carries a moral flavour. Like
'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in an
ethical context. While we must eventually come to some conclusion as to whether
punishment is an evil, it would be preferable at present to use, as does W. Moberly, the
slightly more neutral term 'ill'. Both of these thinkers of punishment believe that the offender
must be answerable for any wrong that he has done. K. Baier explains punishment as law-
making, penalisation, finding guilty, pronouncing a sentence. In a legal context law-making is
a necessary condition, but it is possible to commit a wrongdoing intentionally although no
law has been made, in fact it is because certain acts are considered wrong that laws are made
in the first place. What is important to note is that punishment is a conditional act and cannot
be isolated from its total context.

But Durkhaeim has a different approach to punishment altogether. He treats punishment as

the reaction of the society against a crime. According to him a if punishment be a
proportionate response to the harm caused to the society then the extent of the punishment
inflicted must be clearly sorted out. He also stressed on the point that punishment can never
be calculated; it is an intensely emotional- sense of outrage- the desire to exact punishment.
He says, It is not the specific nature or result of the offending action as such which matter,
but he fact that the action transgresses widely shared ad strongly held sentiments, whatever
these might be in any particular case. He explains that if punishment is a reaction of the
society against the offenders then it is generally in the form of an outrage or anger thus rather
being reparative or reformative becomes punitive. This approach of the society towards the
criminals is what makes us treat them as outcasts and treated as an deviant from the social
norms. This two-fold approach has been criticized severely by various penologists, as at one
time there is the use of both reformative and retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are
within the course of the provisions provided under the Code then any benefits take out of it is
not questioned. But any action through which maybe the same benefit is gained still the
person may be punished as because his action was not within the scope of the provisions.
Also there are certain elements in the society who though do many immoral acts but as
because any provisions or sanctions are not mentioned so that they can be punished they
continue to do that act. One should not earn any benefits or satisfaction out of such acts.

The legitimacy of any form of has always been criticized. Though there are many legal
coercive measures but it is quite different from punishment. If the punishment were any
retribution to an evil done then regardless of any consequence it would try to end that evil in
itself. But if the objective of the punishment given is to prevent the crime from further
occurrence then it would rather than using coercive methods it would be using persuasive
measures and discourage the offender from committing that act in the future. Treating
punishment as a conventional device for the expression of resentment, indignation,
disappointment felt either by the sufferer and his family or the punishing authority as such
J.Feinberg argues that certain kinds of severe treatment become symbolic of the of the
attitudes and judgement of the society or community in the face of the wrongdoing, and
constitute a stigma which castes shame and ignominy on the individual on whom the
punishment is applied. The distinctiveness of the unpleasant measure could consist of the way
of executing them. Thus, summarizing the concept of punishment one can suggest that
punishment includes the following areas :

 Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.

 It is a sequel of a wrongful act.
 There must be some relationship between the punishment inflicted and the crime
committed.
 The punishment is a form by which a criminal is made answerable to the society

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.
The researcher in this chapter would like to discuss the various theories and explain the pros
and cons of each theory. The researcher’s main aim in this chapter is to show the evolution of
the theories as such.

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

J. Bentham, as the founder of this theory, states:

"General prevention ought to be the chief end of punishment as its real justification. If we
could consider an offence, which has beeen, committed as an isolated fact, the like of which
would never recur, punishment would be useless. It would only be only adding one evil to
another. But when we consider that an unpunished crime leaves the path of crime open, not
only to the same delinquent but also to all those who may have the same motives and
opportunities for entering upon it, we perceive that punishment inflicted on the individual
becomes a source of security for all. That punishment which considered in itself appeared
base and repugnant to all generous sentiments is elevated to the first rank of benefits when it
is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who
has given way to mischievous inclinations, but as an indispensable sacrifice to the common
safety."

Bentham's theory was based on a hedonistic conception of man and that man as such would
be deterred from crime if punishment were applied swiftly, certainly, and severely. But being
aware that punishment is an evil, he says, .If the evil of punishment exceeds the evil of the
offence, the punishment will be unprofitable; he will have purchased exemption from one evil
at the expense of another.
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.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.

Relevant cases on death penalty:

 Macchi singh and others vs. the state of Punjab on 20 July, 1983

A feud between two families has resulted in tragic consequences. Seventeen lives
were lost in the course of a series of five incidents which occurred in quick succession
in five different villages, situated in the vicinity of each other, in Punjab, on the night
between August 12 and August 13, 1977. The seventeen persons who lost their lives
and the three who substained injuries included men, women and children related to
one Amar Singh and his sister Piaro Bai. In this connection one Machhi Singh and
his eleven companions, close relatives and associates were prosecuted in five sessions
cases, each pertaining to the concerned village in which the killings took place.
Machhi Singh was the common accused at each trial. The composition of his co-
accused differed number-wise and identity-wise from trial to trial At the conclusion
of the series of trials, the accused found guilty were convicted under appropriate
provisions. Four of them were awarded death sentence, whereas sentence of
imprisonment for life was imposed on nine of them. They were also convicted for
different offences and appropriate punishment was inflicted on each of them in that
behalf. The order of conviction and sentence gave rise to five murder references and
fourteen appeals by the convicts before the High Court of Punjab and Haryana.
Having lost their appeals and the death sentences having been con-firmed, the
appellants have come in appeal by way of special leave
  State Of Kerala vs Navas @ Mula Navas on 9 February, 2010

It is the case of the prosecution that on the night of 3.11.2005, PW3, an auto
rickshaw driver had dropped the accused some where near the scene of the crime
after 10.30 p.m. According to the prosecution the accused had, to gain access into the
house, created a hole on the eastern wall and had crept into the house with his
belongings including MO34 bag. He had gone to the southern room on the ground
floor and had indulged in making writings on the wall and other surfaces in that
room. According to the prosecution, these writings suggest that he was disappointed
in love and had decided to commit suicide. According to the prosecution, he wanted
to murder Latha and commit suicide. He wanted both of them to die together.
Karthiayani Amma was occupying the northern room on the ground floor, whereas
the couple along Thereafter, the accused allegedly in an attempt to commit suicide cut the
vein of his left wrist. There was bleeding from that self-inflicted injury. He went to the
southern room where he had already entered and made all the writings. He closed the room
from inside. He fell unconscious there. It is the case of the prosecution that prior to that, the
accused in that southern room had consumed alcohol, had smoked cigarette and had
consumed Bombay gudka. It is the case of the prosecution that the totality of circumstances
relied on by the prosecution unerringly points to the commission of the offence punishable
under sections 449, 309 and 302 IPC by the accused. 12. The accused in the course of cross-
examination of prosecution witnesses does not appear to have taken any specific stand. He
was not able to engage a counsel of his own at the stage of trial, though he had earlier
engaged a counsel. The services of a counsel of standing Shri P.P.Haris was made

sentence of death is not warranted at all. 17. The learned Special Prosecutor who appeared in
D.S.R.No.4/2007 and the learned Prosecutor who appears for the State in Crl.Appeal
No.1620/2007 on the contrary contends that sufficient circumstances have been established
by the prosecution pointing unerringly to the guilt of the accused and excluding the innocence
of the accused. T the facts and circumstances of this case, according to the prosecution,
clearly shows that this is an eminently fit case where the sentence of death is warranted, as
thecase belongs to the category of rarest of rare cases. 18. The learned Prosecutors submit
that in the facts and circumstances of this case, the explanation coming forth from the
accused is of crucial and vital significance. The learned Prosecutors contend that if the
explanation coming forth from the accused is not acceptable, sufficient and clinching
circumstances are available to safely and unerringly come to the conclusion that all the four
persons who had suffered injuries and who were inside the closed house, must have suffered
injuries at the hands of the accused, who was the only other

 State Of Tamil Nadu vs Nalini And 25 Others on 11 May, 1999

On the night of 21.5.1991 a diabolical crime was committed. It stunned the

whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated
by a human bomb. With him 15 persons including 9 policemen perished and
43 suffered grievous or simple injuries. Assassin Dhanu an LTTE (Liberation
Tigers of Tamil Elam) activist, who detonated the belt bomb concealed under
her waist and Haribabu, a photographer (and also a conspirator) engaged to
take photographs of the horrific sight, also died in the blast. As in any crime,
 criminals leave some footprints. In this case it was a camera which was found
intact on the body of Haribabu at the scene of the crime. Film in the camera
when developed led to unfolding of the dastardly act committed by the
accused and others. A charge of conspiracy for offences under the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (TADA), Indian Penal Code
(IPC), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967,
Foreigners Act, 1946, and the Indian Wireless Telegraphy Act, 1933 was laid
against 41 persons, 12 of whom were already dead having committed suicide
and three absconded. Out of these, 26 faced the trial before the Designated
Court. Prosecution examined 288 witnesses and produced numerous
documents and material objects. Statements of all the accused were recorded
under Section 313 of the Code of Criminal Procedure (Code). They denie their
involvement. The Designated Court found them guilty of the offences charged
against them. Thereafter all the accused were heard on the question of
sentence. Designated Court awarded death sentence to all of them on the
charge of conspiracy to murder. "A judicial massacre", bemoaned Mr.
Natarajan, learned senior counsel for the accused, and rightly so in our
opinion. Designated Court also sentenced each of the accused individually for
various offences for which they had been separately charged.

 Bachan Singh vs State Of Punjab on 9 May, 1980

FACTS :

Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convictedand
sentenced to death under Section 302, Indian Penal Code for the murders of DesaSingh,
Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed hisdeath
sentence and dismissed his appeal.Bachan Singh then appealed to the SC by special leave,
which came up for hearing beforea Bench of this Court (consisting of Sarkaria and Kailasam,
JJ.). The question raised inthe appeal was, whether the facts found by the courts below would
be "special reasons"for awarding, the death sentence as required under Section 354(3) of the
CrPC, 197.

 Bhullar case

Bhullar whose father was disappeared by the Punjab police in 1991, and whose family was
repeatedly harassed, went to Germany in December 1994 to seek political asylum. The
immigration authorities returned him to India but in his absence a Higher German court
overruled the decision.
Bhullar has been in prison for the last 18 years since being arrested upon arrival after being
deported to India following an unsuccessful and unlawful asylum application in Germany in
January 1995 which German Authorities now regret.
Bhullar was arrested, detained and tried under the Terrorist and Disruptive Activities
(Prevention) Act (TADA), which is no longer in force. The United Nations condemned these
laws as “disturbing and completely unacceptable.”
 On 11 September 1993, a car bomb exploded outside the offices of the Indian Youth
Congress on Raisina Road in New Delhi, killing nine people. The remote-controlled bomb
used RDX as explosive. The primary target for the mid-day bombing was identified
as Maninder Singh Bitta, a vocal critic of Khalistani separatists, who was leaving the Youth
Congress offices in his car. Bitta survived the attack with shrapnel wounds to his chest.
However, two of Bitta's body guards were killed.
After investigation, authorities named Bhullar as the bomber responsible for the 1993 Raisina
Road car bomb. It is thought that Bhullar was targeted solely for speaking out against
injustices that were occurring in Punjab during the 1980s/90s, in particular his 40 missing
students by Police Encounters, Operation Woodrose, andAnti-Sikh riots. It has been claimed
that he was part of Khalistan Liberation Force. However, no evidence has been presented for
this, in fact those closest to him refute this claim.
The two judges who upheld the death sentence have found his confession admissible. The
presiding judge of the three-judge bench, however, acquitted the accused, finding that he was
not guilty of participating in the 1993 car bomb attack in New Delhi targeting the then Youth
Congress leader M S Bitta and too much doubt remained on the authenticity of the alleged
‘confession’ to the Punjab police. However, in stark contrast, the other two judges convicted
him, arguing extraordinarily that proof “beyond reasonable doubt” should be a “guideline,
not a fetish” and that procedure is only “a handmaiden and not the mistress of law.” Bhullar
was named responsible based on a confession statement written by Police which he claimed
was taken by torture and fear of death. Recently Justice Katju has noticed in his judgement
that there was nothing on record to corroborate the aforesaid allegeement.

Life- imprisonment cases:

 Om Prakash vs. State of Haryana

The victim along with his wife deceased Smt. Daya Kaur was sleeping at his house
and his brother Satbir, his wife Smt. Kamlesh and mother Smt. Khazani (deceased)
were sleeping at the house of Satbir while inside the house of Satbir, Satbir and two
male progeny of Chater Singh, Aman Kumar and Mohinder and one male progeny
Surender of Hawa Singh were sleeping. Around 4.00 a.m., Chater Singh saw torch
light emanating from the window of his house, upon which he and his wife got up
from their cots and saw Parma Nand accused holding a torch in his hand and Ajit
Singh accused (since dead) standing by his side holding a gun. Ajit Singh fired a shot
from his gun, which hit the breast of Smt. Daya Kaur who fell down and met her
doom. He raised an alarm, whereafter Ajit Singh accused entered his house from the
rear door and fired at Chater Singh from his gun which hit the fingers of his right
hand. Chater Singh caught hold the barrel of the gun but Ajit Singh got it freed and
handed over his weapon to Om Prakash accused present in the court yard of the
house. It is stated that one other person not known to Chater Singh was also present in
the street. Thereafter all the four reached the house of Satbir followed by Chater
Singh and Hawa Singh and there accused Om Prakash fired from his gun hitting Smt.
Kamlesh wife of Satbir and Smt. Khazani who succumbed to the injuries. Thereafter,
the assailants headed towards the house of Satbir where Chater Singh and Hawa
Singh had already reached. At that place, Om Prakash fired indiscriminately from the
gun and shot dead Satbir, Mohinder, Aman Kumar male progeny of Chater Singh and
 Surender son of Hawa Singh. It is stated that after committing the gruesome murder
of 7 persons accused Parma Nand made out that they had taken the revenge regarding
the plot in dispute and dared anybody to confront them at the risk of elimination. All
the accused thereafter fled away with their weapon of offence. After departure of the
accused, many persons collected. Leaving Hawa Singh at the spot, Chater Singh
rushed to the Police Station, Sampla and lodged F.I.R. at Ex. PJ at 7.30 a.m. During
investigation, weapon of offence, that is, S.L.R. (self loading rifle) which the accused
Om Prakash surrendered with the BSF authorities, where he remained posted, was
collected and was sent to the Bureau, Forensic Science Lab. Madhuban alongwith
empties and bullets lifted from the scene of occurrence. After completion of the
investigation, accused were chargesheeted for the offence punishable under Sections
302, 307 read with Section 34 of I.P.C. Prior to trial, accused Ajit Singh had expired.
In Sessions Case No. 341/90, the learned Sessions Judge, Rohtak by Judgment and
Order dated 29th March, 1997 convicted the accused Om Prakash and Parmanand
under Section 302/307/452/506 read with Section 34 I.P.C. and under Section 25 of
the Arms Act after appreciating the evidence in detail.

 State Of Haryana & Ors. vs Jagdish on 22 March, 2010

In the instant case, we find that the respondent, herein, has been granted the relief by
the Punjab and Haryana High Court for consideration of his case for grant of
clemency as per the policy prevailing on the date of his conviction. The respondent
was convicted and sentenced for life imprisonment vide judgment and order dated
20.05.1999 and the policy which was in existence at that point of time was dated
04.02.1993. The respondent, having served more than 10 years imprisonment,
approached the High Court that in spite of having undergone the sentence as per the
aforesaid policy dated 04.02.1993, his case for pre-mature release was not being
considered in view of the new policy of short sentencing, introduced on 13.08.2008.
The policy dated 13.8.2008 has been brought on record, which expressly recites that
the same was being issued in exercise of the powers conferred by Sub-Section (1) of
Section 432 read with Section 433 of Criminal Procedure Code (hereinafter called
Cr.P.C.), 1973. The same 3 further recites that it is in supersession

 (a) Adult life convicts who have Their cases may be considered after
been imprisoned for lifebut whose completion of 10 years actual cases are not
covered under (aa) and sentence including under trial period (a) above and who have
committed provided that the total period of crime which are not considered such
sentence including remissions heinous as mentioned in clause (aa) is not less than 14
years. & (a) above

 (b) Convicts whose death sentence Their cases for pre-mature release has been
commuted to life may be considered after completion imprisonment and convicts
who have of 20 years actual sentence and 25 been imprisoned for life having years
total sentence with committed a heinous crime such as:- remissions.actual period
of imprisonment undergone without including any period of remission. 16. In
 Swamy Shraddananda Murali Manohar Mishra v. State of Karnataka AIR 2008 SC
3040, this Court had passed the order that the 1appellant therein would not be released
from prison till the rest of his life. Such a punishment was considered necessary
because this Court substituted the death sentence given to the appellant by the Trial
Court and confirmed by the High Court, with imprisonment for life with a direction
that the said appellant would not be released from prison for the rest of his life. Thus,
the Court came to the conclusion, on the facts of that case, that in such an eventuality
the pre-mature release after a minimum incarceration for a period of 14 years as
envisaged under Section 433-A Cr.P.C. would not be acceded to, since the sentence of
death had been stepped down to that of life imprisonment which was definitely a
lenient punishment. 17. In the various decisions rendered after the decision in
Godse case.

Recent cases :

 Ajmal kasab case

Police announced Kasab was a Pakistani national based on his confession and other
evidence. Several reporters visited Kasab's village and verified the facts provided by
him. Former Pakistan Prime Minister, Nawaz Sharif confirmed that Kasab was from Faridkot
village in Pakistan, and criticised President Zardari for cordoning off the village and not
allowing his parents to meet anyone.
Journalist Saeed Shah travelled to Kasab's village and produced national identity
card numbers of his parents. His parents left town on the night of 3 December
2008.[48] Mumbai Joint Police Commissioner of Crime Rakesh Maria said Kasab was from
the Faridkot village in the Okara district of Pakistan's Punjab province, and was the son of
Mohammed Amir Kasab.
The Mumbai Police said much of the information that Kasab provided proved to be accurate.
He disclosed the location of a fishing trawler, MV Kuber, that the terrorists used to enter
Mumbai's coastal waters. He told investigators where his team put the ship captain's body, a
satellite phone and a global-positioning device, which the police found.
Pakistani officials, including President Asif Ali Zardari, initially denied Ajmal Kasab was
Pakistani. Pakistani government officials attempted to erase evidence that there was
a Lashkar-e-Taiba office in Deepalpur. The office was hurriedly closed in the week of 7
December. On the night of 3 December 2008, the parents were whisked away by a bearded
Mullah, and since then, there was evidence of a cover-up by plainclothes police. Villagers
changed their stories, and reporters who visit there were intimidated.In early December,
Kasab's father admitted in an interview that Kasab was his son.

Kasab's plea for clemency was rejected by President Pranab Mukherjee on 5 November
2012. On 7 November, Minister of Home Affairs Sushilkumar Shinde confirmed the
President's rejection of the petition. The following day, the Maharashtra state government
was formally notified and requested to take action. The date of 21 November was then fixed
for the execution, and the Indian government faxed their decision to the Pakistani Foreign
Office.
Everything so far on secret basis, Kasab was formally informed of his execution on 12
November, after which he requested government officials to inform his mother. On the night
of 18–19 November, a senior prison official at Arthur Road Jail in Mumbai read Kasab's
death warrant to him, informing him at the same time that his petition for clemency had been
rejected. Kasab was then asked to sign his death warrant, which he did. He was secretly
transferred under heavy guard to Yerwada Jail in Pune, arriving in the early morning of 19
November. The death and funeral of nationalist politician Bal Thackeray also aided in
diverting attention from Kasab.. An officer at Arthur Road Jail stated anonymously:
"Throughout the journey from Mumbai to Pune, he did not cause any trouble. Kasab's attitude
was of resignation when he came to know that his mercy petition was rejected by the
president. Kasab did not shed a single tear during the last few days."]
Only the jail superintendent at Yerwada was made aware of Kasab's identity. Kasab was
placed in a special cell when he was at Yerwada and no other inmates were informed of his
presence. It was only a few minutes before Kasab's execution that the executioner was
informed whom he would be hanging.
Though reportedly nervous in the final minutes before his execution, Kasab remained quiet
and offered prayers. He was hanged on 21 November 2012 at 7:30, according to an
announcement by Home Minister Shinde. Kasab's execution by the Maharashtra government
happened barely two weeks after President Pranab Mukherjee rejected his mercy petition on
November 5."
After the government contemplated burial at sea, the decision was finally made to bury Kasab
at Yerwada Jail. Following his execution, Kasab's body was given to a maulvi for burial in
accordance with Islamic rites. Ansar Burney, a human rights activist in Pakistan, later offered
to help repatriate Kasab's body to Pakistan citing humanitarian reasons. The Indian
government stated it would consider a formal application if offered.Shinde later stated that
Kasab's body was buried in India because Pakistan had refused to claim it.

 Afzal guru case

Mohammad Afzal Guru (1969 - 9 February 2013), an Indian national, was convicted by
Indian court for the December 2001 attack on the Indian Parliament, and sentenced to death
by a special Prevention of Terrorism Act Court in 2002. The Delhi High Court confirmed the
judgment in 2003 and his appeal was rejected by the Supreme Court of India in 2005. The
Supreme Court did not find any evidence as to his membership to any terrorist organisation
but stated that the circumstances clearly established that Guru was associated with the
deceased terrorists in almost every act done by them in order to achieve the objective of
attacking the Parliament and there was sufficient and satisfactory circumstantial evidence to
establish that he was a partner in the conspiracy. The sentence was scheduled to be carried
out on 20 October 2006, but Guru was given a stay of execution after protests in Jammu and
Kashmir and remained on death row. On 3 February 2013, his mercy petition was rejected by
the President of India, Pranab Mukherjee. He was secretly hanged at Delhi's Tihar Jail around
08:00 am on 9 February 2013 and afterward buried inside jail grounds in Operation Three
Star. His family was not informed prior to execution and his dead body was later denied to
his family, while his execution resulted in violent protests across the Kashmirregion.
The 13 December 2001 attack was conducted by the Jaish-e-Mohammad (JEM), although the
Indian government also accused the Lashkar-e-Toiba (LET) of involvement. Seven were
killed by the attackers, including 6 Indian security and a gardener, and 15 others were injured.
The five unidentified attackers were also killed. At the end of
December, US President George W. Bush made a telephone call to Pakistan President
President Pervez Musharrafand Indian Prime Minister Atal Bihari Vajpayee to defuse
tensions between the two countries and urge them to move away from escalating the
Parliament attack into war.
On 15 December 2001, Guru was arrested by Delhi Police from Jammu and Kashmir, and
from December 2001 to May 2002, Guru had no lawyer.SAR Geelani, an Indian educator,
was picked up for questioning and was later arrested from Delhi. Two others – Afsan Guru
and her husband Shaukat Hussain Guru—were picked up later. On 29 December 2001, Guru
was sent to 10-day police remand.. The court appointed Guru his first lawyer, Seema Gulati,
three days after he was initially charged 14 May 2002. She was same lawyer who later
represented SAR Geelani, but in a paid capacity, and she dropped Guru's case after 45 days
because of her case load.In June 2002, charges were filed against all four of them.
On 16 November 2012, the president had sent seven cases back to the Ministry of Home
Affairs (MHA), including Afzal Guru's. The president requested Sushil Kumar Shinde, home
minister, review the opinion of his predecessor, P. Chidambaram. On 10 December, Shinde
indicated he would look at the file after the winter session of the Parliament was finished on
20 December. Shinde made his final recommendation to execute Gul on 23 January 2012. On
3 February 2013, Gul's mercy petition was rejected by the President of India.
Afzal Guru was hanged six days later on 9 February 2013 at 8 am. Jail officials have said that
when Gul was told about his execution, he was calm. He expressed his wish to write to his
wife. The jail superintendent gave him a pen and paper. He wrote the letter in Urdu, which
was posted to his family in Kashmir the same day. Very few officers were told about the
decision. Three doctors and a maulvi, who performed his last rites, were informed secretly a
night before. They were asked to come early Saturday morning. Guru performed his morning
prayers and read a few pages of the Quran. Gul's letter was delivered to his family on 12
February. The execution of Mhammad Afzal Guru was named Operation Three Star.
Guru's family was informed of his execution two days after by a letter sent through Speed
Post, a fast courier service, to their home in Sopore. Postal officials in Srinagar said the letter
was received on Saturday evening of 9 February, but could be delivered only on Monday, or
11 February, because Sunday was a public holiday.
Conclusion

Punishment is an instrument of social control.

 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.

No one single theory whether deterrent, preventive, retributive or reformative can help in
eliminating crimes and criminals from society. It is only through the effective combination of
two or more of these theories that an ideal penal programme can be drawn to combat crimes.
For example: the combination of deterrent plus reformative approach; deterrence when it is
absolutely necessary and reformation as a general mode of treatment of offenders.
Even the most ardent positivists in the practical field of ‘ crime prevention’ may not be able
to envisage and forsee the total elimination of criminality and delinquency. ‘Crimeless’
society is a mirage ; it is a reverie, it ia utopian. As the crime are legion, the crime prevention
techniques and methodologies are also immense and enormous.
In state of Gujarat vs. Hon’ble high court of Gujarat (1998) 7SCC 392, the Supreme court
considered whether deterrence is the main objective of punishment. The court observed :
among the conflicting theories of punishment, modern criminologists are highlighting the
reformative effect on the punished criminal as the most germane aspect. The emphasis
involved in punishment has now been transposed from retribution to cure and reform so that
the original man, who was mentally healthy, can be recreated from the ailing criminal. Forces
which condemn a prisoner and consign him to the cell as a case of irredeemable character
belong to the pessimistic society which lacks the vision to see the innate good in man. The
retributive theory has waned into a relic of primitivity because civilized society has realized
that retribution cannot solve the problem of escalating criminal offences. Crime is noe
considered to be a problem of social hygiene.
 BIBLIOGRAPHY:

 K.d. – the Indian penal code

 Pillai’s – criminal law
 Indiankanoon.com
 Preservearticles.com
 Indianlegalservicesindia.com