PART – IV

CRIME AND PUNISHMENT

OFFENCES, SENTENCES, SENTENCING & COMPOUNDING

14.1 Lord Denning appearing before the Royal Commission on ‘Capital

Punishment’ expressed the following views: Punishment is the way in which society expresses its denunciation of wrong doing and in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of the citizens. For them it is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because wrong doer deserves it, irrespective of whether it is deterrent or not.

14.2 Punishment must be severe enough to act as a deterrent but not too severe to be brutal. Similarly punishments should be moderate enough to be human but cannot be too moderate to be ineffective.

14.3 SENTENCING CONSIDERATIONS

14.3.1 Sentencing aspects that are relevant for consideration by courts are more or less laid down by courts all over the world except where the statute provides a minimum mandatory sentence. Factors that influence sentencing process have been clearly settled by a series of court pronouncements. For imposing substantial punishment many aspects are taken into account. Similarly for reducing the quantum, factors which mitigate are also taken into account. Therefore in the sentencing process both these factors are taken together.

14.3.2 Emmins in his On Sentencing (Martin Vasik ed) lists out various factors under the head of seriousness of offence which is the key concept. Several sub-heads indicate when the seriousness of the offence is aggravated, where the victim is specially vulnerable that is where the offender takes advantage of a helpless person; a very young or very old or handicapped person. He also speaks of breach of trust. This arises in a case where somebody takes advantage of a person who is interested in his career or a person who abuses his office. A premeditated crime executed with professionalism also is an aggravation. Excessive violence, offences by a group or an offence committed by a person on bail for a particular crime which is prevalent in an area and causes public concern are all cited as aggravating factors. He also lists factors which mitigate the seriousness of the offence. Offence committed under grave provocation, offender acting in circumstances though they may not amount to a defence to decide culpability. Other factors listed by him are young age of offender, old age of offender, offender’s previous character, clean record, where the offender has performed meritorious service, where the offender shows remorse, offender pleading guilty. Serious illness of the offender, effect of sentence on the family, passage of time after he committed the offence and trial are also germane and are extenuating factors. These are some of the criteria or guidelines according to Emmins which will have to weigh with a Judge who passes the sentence.

14.4           NEED FOR SENTENCING GUIDELINES

14.4.1 The Indian Penal Code prescribed offences and punishments for the same. For many offences only the maximum punishment is prescribed and for some offences the minimum may be prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own judgment. There is therefore no uniformity. Some Judges are lenient and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. In some countries guidance regarding sentencing option is given in the penal code and sentencing guideline laws. There is need for such law in our country to minimise uncertainty to the matter of awarding sentence. There are several factors which are relevant in prescribing the alternative sentences. This requires a thorough examination by an expert statutory body.

14.4.2 Although many countries have abolished death penalty in view of the increasing violence and deterrence having failed organised crime, terrorism, bomb blasts resulting in killing of innocent people etc., compel the retention of death sentence. Law Commission also states that time is not ripe for abolition of death sentence. Section 354 (3) Cr.P.C makes imprisonment for life the normal punishment and the same section requires that in case a death sentence is imposed, special reasons are to be given and the Supreme Court in Bachaan Singh’s case held that in the rarest of the rare case the same can be given and enumerated circumstances in which it should be granted and further in Macchi Singh’s case they laid down some more requirements namely the manner of the murder, the motive for the commission of offence, the anti-social nature of crime, the magnitude of the crime and the personality of the victim such as innocent child and helpless woman or a victim over whom the murderer is in a position to dominate or the victim is a public figure.

14.4.3 The Law Commission in its 47th report says that a proper sentence is a composite of many factors, the nature of offence, the circumstances extenuating or aggravating the offence, the prior criminal record if any of the offender, the age of the offender, the professional, social record of the offender, the background of the offender with reference to education, home life, the mental condition of the offender, the prospective rehabilitation of the offender, the possibility of treatment or training of the offender, the sentence by serving as a deterrent in the community for recurrence of the particular offence.

14.4.4 Offenders also have to be classified as a casual offender, an offender who casually commits a crime, an offender who is a habitual, a professional offender like gangsters, terrorist or one who belongs to Mafia. There should be different kinds of punishments so far as the offenders are concerned. Similarly in fixing a sentence many factors are relevant, the nature of offence, the mode of commission of the offence, the utter brutality of the same, depravity of the mind of the man. Sentences contemplated by Section 53 of IPC are death, imprisonment for life, and forfeiture of property or fine.

14.4.5 Some times the courts are unduly harsh, sometimes they are liberal and we have already adverted to aspects which Supreme Court said are relevant in deciding as to what are the rarest of the rare cases for imposing death sentence and even in such matters uniformity is lacking. In certain rape cases acquittals gave rise to public protests. Therefore in order to bring about certain regulation and predictability in the matter of sentencing, the Committee recommends a statutory committee to lay guidelines on sentencing guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative.

14.5 NEED FOR NEW KINDS OF OFFENCES AND NEW TYPES OF PUNISHMENTS

14.5.1 Different kinds of punishments are the need of the hour.

Disqualification from holding public office, removal from the community etc. are some of the measures that should be introduced and not punishment in a prison. These punishments are not custodial in nature. Far reaching reforms have taken place in England and the year 2000 is a watershed and enactments like the Powers of the Criminal Court Sentencing Act, 2000 modifying earlier laws were enacted introducing a whole range of new and novel punishments, postponement of sentencing, suspended sentence of imprisonment, supervision during suspension, community sentences, community rehabilitation order, financial penalties and reparation orders, parenting orders for children, confiscation order, disqualification orders etc., are many of the changes that have been brought out. Even in India under the Motor Vehicle’s Act a disqualification for holding a license can be a part of punishment. Dismissal of a public servant from service for criminal misappropriation and breach of trust is an additional measure of punishment. Under the Representation of the People’s Act there is disqualification in the event of proved electoral mal practices or on account of conviction.

14.5.2 In other words instead of conventional punishments enumerated in

Sec.53 of the Penal Code which was enacted in 1860 nothing has been done to reform the system of punishment. The U.K. Powers of Criminal Courts Sentencing Act of 2000 contains general provisions regarding a community orders and community sentences and a curfew order, community rehabilitation order, a community punishment order, a community punishment rehabilitation order, a drug treatment and testing order, attendance order, a supervision order, an action plan order are all covered by the definition of community order and community sentences and monitoring of orders. These orders have certain limitations. Curfew orders are those by which a person convicted of an offence is required to remain at a place specified or different places on different dates. It is not custodial in nature. In a community rehabilitation order a convicted person may be kept under the supervision of a named authority to secure his rehabilitation or protecting the public from such an individual or to prevent further crime. In respect of sexual offenders or persons who have a mental condition or those who are drug addicts or addicted to alcohol various provisions have been enacted with a view to rehabilitate the individual, take him off the drugs or alcohol and enable him to live as a decent human being. Supervision orders and sentence orders are also treated as forms of punishments in addition to fines. The Power of Criminal Courts Sentencing Act, 2000 provides for a compensation order.

14.5.3 In Indian law, so far as the custodial punishments are concerned there are certain offences for which maximum term is provided and also provisions for mandatory minimum punishment Section 397, 398 IPC, PC Act, NDPS Act, PFA  Act provide for mandatory minimum punishments. Since some of these offences are offences against society as a whole, against public health, against the safety or well being of society at large, such punishment should be retained.

14.5.4 IPC Amendment Bill of 1978 was the first attempt made to bring about certain

changes in sentencing which remained static from the time IPC was enacted. Prior to this a bill had been enacted in 1972 which suggested 3 new forms of punishment externment Section 17(A) compensation for victims-14(8) and Public Censure 74(C). However, in 1978 externment as a form of punishment was rejected. Community service [74(A)], compensation to victims [74(B)] and Public Censure [74(C)] and disqualification for holding office 74(D) were proposed. Community Service is in vogue in many countries UK., USSR, Zimbabwe uses it. Recently Government of Andhra Pradesh has initiated a move to introduce the same. However, in community sentences certain restrictions regarding age etc are suggested. The accused must be less than 18 years.

14.5.5 The offence must be one for which the punishment by way imprisonment must be less than 3 years. It is an alternative to punishment and there should be an upper and lower limit regarding duration of community service. The court should be satisfied about the suitability of the accused for carrying out the work.

14.5.6 Public censure under Section 74 (C) was provided for white-collar crimes. This was suggested as being in addition to punishment. Disqualification for holding office was proposed under Section 74(B). This is also an additional punishment applicable to holders of office and it is limited with respect to the position and also the period. Unfortunately after the abortive attempt in 1978 no endeavour was made to re-introduce the same and the law since 1870 remains static.

14.5.7 To ensure uniformity and to avoid and uncertainties legislation such as Criminal Courts Sentencing Act of 2000 which is in force in UK can be thought of so that predictability and uniformity in so far as “Sentencing” is concerned is assured. Section 78 of the English Act imposes limits on imprisonment and detention in young offenders institutions. Sections 79 & 80 provide for general restrictions on description and custody of sentences and length of sentences. Presenter reports are also to be looked into Section 83 imposes certain restrictions on persons who are not legally represented.

14.5.8 Sections 89, 90, 91, 93 and 94 provide for restrictions, periods of detention for persons below the age of 18 to 21 years. Suspended sentences, suspension orders, special enactments like Sex Offenders Act of 1997, are the changes brought out even in regard to a class of offences. Community orders and community sentences are applicable where there is no sentence fixed by law. They cover a wide range such as curfew order, community rehabilitation order, and community punishment order. A Drug treatment order, an attendance centre order, a suspension order are part of the statutory changes.

14.5.9 Financial penalties taking into account the offenders’ financial circumstances, and fixing of fines, remission of fines, compensation orders are provided. A review of compensation orders limits of fine to be imposed on the young offender and a direction to the parent or guardian to pay fines, compensation etc., are all fixed and statutorily regulated. Power to confiscate the property used for Crime is covered by Section 143 of Criminal Courts Sentencing Act of 2000. Forfeiture is also provided. We have Shrama-dan, or NSS work which can be usefully introduced as part of sentencing. ‘Janman-Bhoomi concept in vogue in Andhra Pradesh can be converted into a convicts wage to the community for the crime committed. All these clearly show the changes and the emerging pattern in sentencing and several other facts the aim of all of which is to bring about a psychological change in the accused, to have an impact on the mind so that the same may bring about certain reformation of the individual. It is time that with the advancement of science, medicine and human psychology we try to find out the etiology of the Crime in our country and to bring about legislation which introduces a whole range of new and innovative punishments some of which are enumerated in the preceding paragraphs.

14.6 PREPARING FOR EMERGING CHALLENGES

14.6.1 The last century has seen amazing change in the pattern of crime and the intensity and impact of the same on society. Terrorism has become global in nature, and the consequences of the same in terms of loss of life are phenomenal. Organised crime and its ramifications are global. Economic offences are transnational in operations and cyber crimes have no geographical limitation. Sexual offences, child abuse, drug trafficking, trafficking in women and child, pornography, hijacking of aircrafts are all crimes which have no limitations either in terms of space or geographical boundaries and the impact of same affects the entire society and the nation itself. Therefore the need to combat these emerging crimes, which are bound to increase in number and in frequency, will have to be addressed and tackled. The existing laws are inadequate and therefore legislation and new policies of sentencing are the desideratum. Man’s depredation of nature resulting in ecological imbalance, the concern for preservation of forests, wild life, compassion for the other living beings which are part of the Constitutional obligations have all resulted in new legislations being enacted. The increasing importance towards the end of the last century of human rights requires that punishments and sentencing should be consistent with Human Rights Jurisprudence. Rights of disadvantaged sections, gender bias, and sexual harassment in work places are all great concerns and elimination of all forms of discriminations are getting statutory protection and recognition.

14.6.2 While these are the challenges and the tasks that we face, the sentencing criteria that in vogue till now requires to be remedied and rectified as they are inadequate sometimes ineffective and do not take into account the human rights angle and do not provide adequate preventive and deterrent sentences to the new forms of crimes that have exploded consequent on the advancement of science and technology and the use of the same by criminals having ramifications which have cross-border implications. Though some new legislations have been passed every endeavour should be made to tackle and punish perpetrators of such crimes adequately. These are serious matters involving policy considerations.

14.6.3 This Committee is not asked to undertake a general review of the Indian Penal Code. That is a gigantic and time consuming task. The Committee has therefore restricted its attention to suggesting a few amendments in the context of the general reforms of the Criminal Justice System. The Committee is convinced that a comprehensive review of the Indian Penal Code is long over due and should be undertaken on a priority basis by a high power Committee. This is not an exercise to be carried out by only lawyers and Judges. Public men and women representing different walks of life and different school of thought, social scientists, politicians etc should be on such a Committee to recommend to the Parliament a better and progressive Penal Law for the Country. Hence, it is recommended that a Committee should be appointed to review the Indian Penal Code and to suggest creation of new kinds of offences, prescribing new forms of punishments and reviewing the existing offences and punishments.

14.7 ALTERNATIVE TO DEATH PENALTY

14.7.1 Section 53 of the IPC enumerates various kinds of punishments that can be

awarded to the offenders, the highest being the death penalty and the second being the sentence of

imprisonment for life. At present there is no sentence that can be awarded higher than imprisonment for life and lower than death penalty. In USA a higher punishment called “Imprisonment for life without commutation or remission” is one of the punishments. As death penalty is harsh and irreversible the Supreme Court has held that death penalty should be awarded only in the rarest of rare cases, the Committee considers that it is desirable to prescribe a punishment higher than that of imprisonment for life and lower than death penalty. Section 53 be suitably amended to include “Imprisonment for life without commutation or remission” as one of the punishments.

14.7.2 Wherever imprisonment for life is one of the penalties prescribed under the IPC, the following alternative punishment be added namely “Imprisonment for life without commutation or remission”. Wherever punishment of imprisonment for life without commutation or remission is awarded, the State Governments cannot commute or remit the sentence. Therefore, suitable amendment may be made to make it clear that the State Governments cannot exercise power of remission or commutation when sentence of “Imprisonment for life without remission or commutation” is awarded. This however cannot affect the Power of Pardon etc of the President and the Governor under Articles 72 and 161 respectively.

14.8 CONCERN FOR MOTHER

14.8.1 The concern for the mother and the child and social issues like

female foeticide, domestic violence organs transplantation etc. needs a total new approach in the matter of punishment. Pregnant women or women with child less than seven years of age if incarcerated, the trauma and impact of the same will have both on the mother and the child in life after prison cannot be ignored. Hence such cases of convicted pregnant women or the mother having young child below 7 years require human and humane approach and therefore house detention with sufficient safe guards to prevent escape must be thought of. There are modern gadgets used in U.S.A to ensure that House arrest orders are not disobeyed. Any violation can be detected by means of such a gadget. They can be used in India to respect the rights of the child.

14.9 NEED FOR REFORMS AND REVISION OF FINES

14.9.1 So far as sentences of fine are concerned, time has come to have a

fresh look on the amounts of fine mentioned in the IPC and the mode of recovery. As the law stands we have two classes of offences for which only fine can be imposed. Then there are offences for which fine can be imposed in addition to imprisonment. Further for non-payment of fine, imprisonment is also provided. So far as imprisonment in case of default of payment of fine is concerned it is time that the same is done away with. In view of the acceptance that custodial sentences are only to be imposed in grave crimes there are many areas where correctional approach or community sentences etc., will have the desired effect.

14.9.2 Section 64 of the IPC should be amended and Sec. 65 which says that where in addition to imprisonment, fine is imposed as also punishment in default of the payment of fine imprisonment shall not exceed 1/4th of the sentence that may be fixed should also be deleted. Sec. 66,67 should also be deleted as also 68 and 69 of the IPC and in all these crimes community services for specified periods should be prescribed.

14.9.3 The amount of fine as fixed in 1860 has not at all been revised. We live in an age of galloping inflation. Money value has gone down. Incomes have increased and crime has become low risk and high return adventure particularly in matters relating to economic offences and offences like misappropriation breach of trust and cheating. For all matters involving in money or money related crimes new legislations have also created offences, a case in point is Section 138 of the Negotiable Instruments Act where huge sums of money are involved, fine extending to twice the cheque amount can be imposed / levied. In matters of sentence of fine it is not desirable that the paying capacity of the rich criminal and that of the poor is taken into account.

14.9.4 Further it is universally accepted that victims rights should not be ignored for the victim, he or she, pays a heavy price. Therefore from out of the fine imposed victim, is also to be compensated. Another aspect is the cost of living has to be taken into account. The provisions of Minimum Wages Act are applicable to many wage earners. Therefore in the organised sector or even in un-organised sector wages have gone up and then even the earning capacity of individuals has increased. Hence time has come when attention should be focussed on increasing the amount of fine in many cases. There are certain sections where Penal Code authorises the imposition of fine but the amount of fine is not mentioned. In such cases Sec.63 of the IPC says where the sum is not indicated then the amount of fine may be unlimited but should not be excessive. When a fine is imposed and is not paid the court can prescribe default sentence of imprisonment. This may act harshly in some cases of genuine incapacity to pay. Therefore the Committee suggests that community service may be prescribed as an alternative to default sentence. In view of the circumstances enumerated the fine amounts should be revised. Time has come when the amount of fine statutorily fixed under the Penal Code also should be revised by 50 times.

14.10 COMPOUNDING/SETTLEMENT WITHOUT TRIAL

14.10.1 Plea-bargaining which has been implemented with a great deal of success in USA has to be seriously considered. The Supreme Court of United States has upheld the Constitutional validity and also endorsed that pleabargaining plays a significant role in the disposal of criminal cases. The United States experiment shows that plea-bargaining helps the disposal of the accumulated cases and expedites delivery of Criminal Justice and the Law Commission of India in its 154th and 142nd reports adverted to the same. The Law Commission also observed that when an accused feels contrite and wants to make amends or is honest and candid to plead guilty in the hope that the community will enable him to pay the fine for the crime with a degree of compassion, then he deserves to be treated differently from the accused who seeks trial involving considerable time, cost and money and cost of the community.

14.10.2 The Law Commission in its 142nd report stated that it is desirable to

infuse life into reformative provisions embodied in Sec.360 CrPC and the Probation of Offenders Act which according to the Law Commission remained unutilised. Law Commission noted the advantages of plea-bargaining which ensures speedy trial with benefits such as end of uncertainty, saving of cost of litigation, relieving of the anxiety that a prolonged trial might involve and avoiding legal expenses. The Law Commission also noted that it would enable the accused to start a fresh life after undergoing a lesser sentence. Law Commission noted that about 75% of total convictions are the result of pleabargaining in USA and they contrasted it with 75% of the acquittals in India. Law Commission also observed that certainly plea-bargaining is a viable alternative to be explored to deal with huge arrears of criminal cases. The same might involve pre-trail negotiations, and whether it is “charge bargaining” or “sentence bargaining” it results in a reduced sentence and early disposal.

14.10.3 The Law Commission adverted to the views of the Indian Supreme

Court in this regard but however stated that plea-bargaining can be made one of the components of the administration of the criminal justice and the only caveat that they entered is that it should be properly administered and they recommend that in cases where the imprisonment is less than seven years and / or fine may be brought into schemes of things where plea bargaining should be there and they also stated that in respect of nature and gravity of the punishment quantum of punishment could be brought down but unlike in the United States, where plea bargaining is available for all the crimes and offences plea-bargaining in India should not be extended to socio economic offences or the offences against women and children.

14.10.4 As recommended by the Law Commission when the accused makes a plea of guilty after hearing the public prosecutor or the de facto complainant the accused can be given a suspended sentence and he can be released on probation or the court may order him to pay compensation to the victim and impose a sentence taking into account the plea bargaining or convict him for an offence of lesser gravity may be considered. Taking into account the advantages of plea-bargaining, the recommendations of the Law Commission contained in the 142nd report and the 154th report may be incorporated so that a large number of cases can be resolved and early disposals can be achieved. By no stretch of imagination can the taint of legalising a crime will attach to it. It should not be forgotten that already the Probation of Offenders Act gives the court the power to pass a probation order. Further the power of executive pardon, power of re-mission of sentences have already an element of not condoning the crime but lessening the rigour or length of imprisonment. In imposing a sentence for a lesser offence or a lesser period the community interest is served and it will facilitate an earlier resolution of a criminal case, thus reducing the burden of the court. Perhaps it would even reduce the number of acquittals for after prolonged trial it is quite possible that the case may end in acquittal. If the compounding offences is there in the statute even under old Cr.P.C. there is no reason why, when the accused is not let off but he is sentenced for a lesser sentence plea bargaining should not be included in the Criminal Justice System, so that the object of securing conviction and also reducing the period of trial can be achieved and reduced pendency can also be achieved in “one go”.

14.10.5 The Law Commission after thorough examination of the subject of plea-bargaining/compounding/settlement without trial has in its 142nd and 154^th reports made detailed recommendations to promote settlement of criminal cases without trial. As the Committee is substantially in agreement with the views and recommendations of the Law Commission in the said reports it considers unnecessary to examine this issue in detail.

14.10.6 However, the Committee is of the view that in addition to the offences prescribed in the Code as compoundable with or without the order of the court there are many other offences which deserve to be included in the list of compoundable offences. Where the offences are not of a serious character and the impact is mainly on the victim and not on the values of the society, it is desirable to encourage settlement without trial. The Committee feels that many offences should be added to the table in 320(1) of the Code of Criminal Procedure. The Committee further recommends offences which are compoundable with the leave of the court, may be made compoundable without the leave of the court. These are matters which should be entrusted to the Committee.

RECLASSIFICATION OF OFFENCES

15.1 NEED FOR CLASSIFICATION

15.1.1 India inherited the present system of classification of offences from its colonial rulers more than 140 years back, in which the police are the primary enforcers of the law. Considering the nature of the impact of colonial law making, suffice it to say that it is time to reexamine and reframe the laws as appropriate to the twenty first century Indian society and its emerging complexities.

15.1.2 Many countries in the world have started their own initiatives in improving their domestic Criminal Justice Systems. England, USA and Australia are all in the process of charting out reforms. As societies continue to change, crimes become complex and new crimes emerge, it is imperative for India to work out a comprehensive Criminal Justice System, suited to the ethos of this country.

15.1.3 As the aim of the Committee is to make the Criminal Justice System just, efficient, speedy and cost-efficient, time has come to re-examine and re-define crime under the various laws in the Criminal Justice System to ensure that appropriate procedures will be available for different infringement of penal laws so that cases will be dealt with at a speed commensurate to the gravity of the infringement, with certainty in terms of time and punishment. For, what were considered serious crimes yesterday may not be so considered today. The matter is all the more urgent as the Criminal Justice System has virtually broken down under the weight of case burden and a thorough overhaul is essential to make it speedy, efficient as well as cost-effective.

15.1.4 If the Criminal Justice System were to increase its efficiency in rendering justice and become as quick as it is fair, it would restore the confidence of the people in the system. Towards this, it is necessary to not only re-classify crimes but re-classify them in such a manner that many of the crimes- which today take up enormous time and expense- are dealt with speedily at different levels by providing viable and easily carried out alternatives to the present procedures and systems. In brief, many infractions of the law which are classified as crimes today - and some considered serious, may not be so considered tomorrow.

15.2       CLASSIFICATION OF CRIMES/OFFENCES

15.2.1 The basis for the classification of crime is that contained in the

Indian Penal Code (IPC) and the Criminal Procedure Code (Cr.P.C). But, over a period of time, various statutes have been added with different provisions about evidence, burden of proof etc., and often, the crimes themselves are not of the kind covered in the IPC; in fact, many of the special laws relate to social inequities. All these have only added to the burden of work on the Criminal Justice System. Further, with the changing views of what constitutes crime all over the world and not just in India, unless there is a re-look at the classification also, it will be difficult to work out appropriate prevention and detention strategies for different kinds of offences which are now clubbed together as crime. Under the Code, offences are broadly classified into four categories as indicated in the following paragraphs.

15.3       Cognizable Offences

15.3.1 Cognizable offences are offences for which a police officer may arrest without warrant and without the orders of a magistrate. In non-cognizable offences, a police officer cannot, in general, arrest a suspect without warrant or without the orders of a magistrate. The police officer can entertain only cognizable offences and the victim of a non-cognizable offence has to move the court with a complaint. This distinction deserves to be done away with.

15.3.2 Offences are classified as bailable and non-bailable: A bailable offence is one in which the accused has a right to be released on bail. In a nonbailable offence, the court can refuse bail to the accused.

15.4 Summons and Warrant Cases

15.4.1 Summons cases relate to offences punishable with either only a fine or with imprisonment not exceeding two years. All other cases are called warrant cases.

15.5 Compoundable and Non-compoundable offences

15.5.1 Compoundable offences are offences that can be compounded with or without the permission of the court. Non-compoundable offences, naturally, are those that cannot be compounded.

15.5.2 The source for determining the category under which an offence falls is available in the First Schedule of the Code.

15.6 SENTENCING POWERS OF COURTS

1. The High Court may pass any sentence authorised by law;

2. The Sessions Judge or the Addl. Sessions Judge may pass any sentence authorized by law but a death sentence passed by the Judge has to be confirmed by the High Court;

3. The Assistant Sessions Judge may pass any sentence except for death sentence or life imprisonment or imprisonment of over 10 years;

4. The Chief Judicial magistrate and Chief Metropolitan Magistrate can pass sentence under 7 years imprisonment;

5. Judicial Magistrates First Class and Metropolitan Magistrates can pass sentence upto 3 years or a fine upto Rs 5000/- or both;

6. Judicial Magistrates II Class can sentence upto 1 year and a fine of upto Rs 1000/- or both.

15.6.1 Thousands of cases are pending before different criminal courts.

Once the process is set into motion, the difference between serious offences and petty offences is lost and undifferentiated. This in effect, is the problem. Reclassifying of offences makes no sense in isolation; it has to be accompanied by suitable change in procedures.

15.6.2 The concept or understanding of crime is changing with changes in our

Society. Under our existing system, all crimes are treated alike. This is inadequate and

inappropriate for dealing with new emerging crimes like, for example, cyber crimes, financial crimes or crimes of terror;

15.6.3 Clubbing all existing crimes together procedurally is not sound nor does it work. Some crimes may be of a correctional nature, some petty and many may really form part of social welfare legislation. These need to be reclassified, put into separate categories so that the law enforcement systems can attend to the more serious crimes, which it is intended to handle;

15.6.4 The only agency, which bears the brunt of investigation of crimes, is the police force. The police is understaffed, overworked, ill equipped and certainly cannot meet the demands placed upon it. Reclassification and removal of legal infractions from them so that they can be dealt with by other agencies, will contribute to greater efficiency of the Criminal Justice System.

15.6.5 The nature of crimes and the way to deal with them calls for a multi disciplinary approach. Social, psychological and economic causes contribute to the occurrence of crime and, therefore these causes must be borne in one’s mind in dealing with crimes. The corrective/punitive measures required to deal with them will need to be worked out;

15.6.6 Cost is an important reason for re-classifying crime. Of course, there is an economic cost, borne by the State ultimately and in many cases, by the victim of the crime. There are also other costs – time, efficiency and lastly, social costs. An efficient reclassification will automatically bring down all these costs.

15.6.7 In brief, reclassification will, to a large extent address and remedy the lacunae of the present Criminal Justice System.

15.6.8 Thus the need to reclassify crime today is both urgent and compelling. Offences range from the most heinous crime such as murders to a minor offence of appearing in a public place in drunken state. The result is that individuals once they are convicted for a minor offence get labeled as criminals and this stigma makes it difficult for them to get jobs and even a chance to reform and become useful members of Society. Where such persons are sent to jail, they often come under the influence of hardened criminals and gravitate towards a life of crime. This is one of the reasons for suggesting fine and not imprisonment as the only punishment in respect of large number of minor offences. This logic equally applies to increasing the number of compoundable offences which while satisfying the victim do not affect societal interests.

15.6.9     Relevant factors are the following: -

? ? Nature of the offence;

? ? Degree of violence;

? ? Extent of injury to the victim

? ? Extent of damage to property;

? ? Impact on the society;

? ? Any discernible behaviour pattern in commission of the offence;

? ? Whether alternative methods of dispute resolution like compounding or settlement would be adequate.

? ? Whether the victim should be compensated monetarily;

? ? The punishment prescribed by law for the offence and whether that is appropriate to the act.

15.6.10 Taking into consideration the above factors, it should be decided whether for each of the offences the accused should be inflicted punishment of fine or imprisonment, whether the accused should be arrested or not, whether the arrest should be with or without the order of the court, or whether the offence should be bailable or not and whether the offence should be compoundable or not and if compoundable, whether with or without the order of the court.

15.6.11 As is done in some countries it may be considered to classify the offences into three Codes namely (1) The Social Welfare Offence Code (2) The Correctional Offence Code, (3) The Criminal Offences Code and (4) The Economic and other Offences Code.

15.6.12 A Social welfare offences Code would include offences that are social in origin or nature and cover offences that might be prevented through awareness programmes. For such offences community service is preferred to jail sentence.

15.6.13 The Correctional offences Code would include non-cognizable offences that are punishable with less than 6 months imprisonment, which need not be considered as crimes. They are considered as “correctional” offences for which fine is the only punishment to be paid to the victim or state as case may be, or through counseling. All these offences are not arrestable.

15.6.14 The Criminal Offences Code would include all major/grave

offences involving violence. Basically, this would really be the “crime” part of

the offences. The enforcement agency would be the police and punishment will

be imprisonment and fine. All the offences that fall within this category will be

arrestable and mostly non-compoundable.

15.6.15 The Economic and other Offences Code would include all economic offences, like tax fraud, money laundering, stock market scams and also offences like cyber crimes, intellectual property violations etc. Although these are all clubbed together here, they will still require specialized, separate agencies that are responsible for dealing with them. Punishment will again have to, perhaps, be a combination of punitive fines and jail and community service. As reclassification into four codes discussed above is an important policy matter that requires greater and in depth study.

15.6.16 The Committee has made several recommendations for modification of some of the fundamental principles governing the Criminal Justice System and for improving the performance of the functionaries of the Criminal Justice System, namely the investigation, prosecution and the judiciary. Over the years crime scenario has changed enormously. Terrorism, Organised crimes, Economic crimes and several other new kinds of crimes have thrown serious challenges to the system. The law breakers appear to be emerging stronger than the law enforcing agency. The Indian Penal Code was enacted in the year 1860, the Evidence Act was enacted in the year 1872 and the Code of Criminal Procedure which was enacted in the year 1898 was replaced by the new Code in the year 1973. These laws enacted long back are now found to be inadequate to meet the new challenges. People are losing faith and are rightly demanding stronger laws and greater functional efficiency of the System. Hence there is a need of review all these laws. This is not an exercise to be carried out only by lawyers and judges. They involve important policy considerations such as Problems of National Security and interests of different sections of the society more particularly of Women, Children and other weaker sections of the Society. Hence the Committee recommends a comprehensive review of the Indian Penal Code, the Evidence Act and the Criminal Procedure Code by a broad based Committee representing the functionaries of the Criminal Justice System, eminent men and women representing different schools of thought, social scientists and vulnerable sections of the society to make recommendations to the Parliament for stronger and progressive laws for the country.

OFFENCES AGAINST WOMEN

16.1 MAINTENANCE OF WIVES, CHILDREN AND PARENTS: SECTION 125 CR.P.C

16.1.1 Section 125 of the Code provides for giving maintenance to the neglected wife, child etc. The object is to prevent starvation and vagrancy by compelling the person to perform the obligation which he owes in respect of his wife, child, father or mother who are unable to support themselves.

16.1.2 A woman in a second marriage is not entitled to claim maintenance as in law a second marriage during the subsistence of the first marriage is not legal and valid. Such a woman though she is de facto the wife of the man in law she is not his wife. Quite often the man marries the second wife suppressing the earlier marriage. In such a situation the second wife can’t claim the benefit of Section 125 for no fault of hers. The husband is absolved of his responsibility of maintaining his second wife. This is manifestly unfair and unreasonable. The man should not be allowed to take advantage of his own illegal acts. Law should not be insensitive to the suffering of such women. Therefore the Committee suggests that the definition of the word ‘wife’ in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.

16.2 MARRYING AGAIN DURING LIFE TIME OF HUSBAND OR WIFE- SECTION 494 IPC

16.2.1 Bigamy is made an offence under Section 494 IPC. The second marriage is void by reason of it taking place during the subsistence of the first marriage. In other words it would be bigamy only when the marriage is otherwise valid. In AIR 1965 S.C. 1564 Bhan Rao Shankar Lokhande vs. State of Maharashtra and AIR 1966 S.C. 619 Kunwal Ram Vs. State of Himachal Pradesh, the Supreme Court has held that in order to attract Section 494 IPC the prosecution has to prove that the second marriage was validly performed as per the customary rights of either party under their personal laws. If there is any lapse in following the customary rules, the second marriage would be regarded as void. It is not always easy to prove long after the marriage that all the rituals were duly performed. Thus the second wife will be denied the right to receive maintenance. To overcome these practical difficulties a suitable provision be incorporated to the effect that if the man and the wife were living as husband and wife for a reasonably long period they shall be deemed to have married in accordance with customary rites of either party thereto. This shall be rebuttable presumption and the finding shall not be binding in civil proceedings.

16.3 ADULTERY: SECTION 497 IPC

16.3.1 A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband.

The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore there is no good reason for not meeting out similar treatment to wife who has sexual intercourse with a married man.

16.3.2 The Committee therefore suggests that Section 497 I.P.C should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery… … ..”.

16.4 CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND – SECTION 498 OF IPC

16.4.1 This provision is intended to protect the wife from being subjected by the husband or his relatives to cruelty. Cruelty for the purpose of this Section means willful conduct that is likely to drive the woman to commit suicide or cause grave injury or damage to life, limb or health, mental or physical. It also includes harassment by coercing to meet unlawful demands. This is a very welcome measure. But what has bothered the Committee are the provisions which make this offence non-bailable and non-compoundable.

16.4.2 The woman who lives with the husband and his family after marriage is expected to receive affection and caring and not cruelty and harassment. True to the Indian tradition the woman quietly suffers without complaining, many inconveniences, hardships and even insults with the sole object of making the marriage a success. She even tolerates a husband with bad habits. But then, when her suffering crosses the limit of tolerance she may even commit suicide. For the Indian woman marriage is a sacred bond and she tries her best not to break it. As this offence is made non-bailable and not compoundable it make reconciliation and returning to marital home almost impossible.

16.4.3 If the woman victim lodges an F.I.R alleging commission of offence under Section 498A, her husband, in-laws and other relatives of the husband would be arrested immediately. If she has no independent source of income she has to return to her natal family where also support may not be forthcoming. Her claim for maintenance would be honoured more in default than in payment especially if the husband has lost his job or suspended from his job due to the arrest. Where maintenance is given, it is often a paltry sum. (Thus the woman is neither here nor there. She has just fallen from the frying pan into the fire.) Even when there is a divorce, or reconciliation, the criminal case continues as Section 498A is non compoundable.

16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

16.4.5 This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non-compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.

16.5 RAPE: SECTION 375 OF IPC

16.5.1 Offence of Rape is defined in Section 375 of the I.P.Code in the following terms:

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -

Firstly – Against her will.

Secondly – Without her consent.

Thirdly – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly – With or without her consent, when she is under sixteen years of age’.

Explanation:Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

16.5.2 It is clear from this provision that it is sexual intercourse with a woman under circumstances falling under any of the six of the descriptions given in the Section that constitutes an offence of rape. Normal sexual intercourse with voluntary consent of the woman above sixteen years of age is not an offence. The explanation to the Section says that penetration is sufficient to constitute the sexual intercourse. There is no definition of rape or sexual intercourse. The explanation only indicates the point of time or stage in the sexual act that is sufficient to make the sexual act an offence of rape.

16.5.3 ‘Sakshi’ a leading women’s N.G.O. has filed W.P.Criminal 33 of 1997 against the Union of India praying that the offence of Rape defined under Section 375 of the I.P.Code should be interpreted to include all other forms of forcible penetration including penile/oral, object or finger/vaginal and object or finger/anal. On that question the Supreme Court has sought the views of this Committee. The considered opinion of the Committee to the Supreme Court is that such an interpretation is not reasonable. As the opinion has to be sent to the Supreme Court the same is not discussed here. However the Committee is convinced that such acts constitute serious invasion of the precious rights of the woman and should be punishable with adequate sentence.

16.5.4 The Committee therefore recommends that other forms of forcible penetration including penile/oral, penile/anal, object or finger/vaginal and object or finger/anal should be made a separate offence prescribing punishment broadly on the lines of Section 376 of IPC.

16.6 RAPE AND DEATH PENALTY

16.6.1 There have been several shocking instances of rape that have given rise to the feeling that death penalty should be prescribed as a punishment for the offence of rape so that it acts as an effective deterrent. However international opinion is steadily emerging in favour of abolition of death penalty. The Supreme Court of India has ruled that in respect of serious offences of murder imprisonment for life should be the normal punishment and that it is only in rarest of rare cases that death penalty should be imposed. Those who are pleading for death penalty for the offence of rape feel that the punishment now prescribed has failed to have a deterrent effect. The view to the contrary is that the remedy should not be worse than the disease. Death penalty is irreversible. Any erroneous decision would lead to disastrous consequences. Judges are therefore likely to expect a much higher standard of proof. This may result in further lowering the rate of conviction. Besides if the rapist knows that rape carries death penalty he may be tempted to kill the victim so that she will not be available to give evidence against him. After giving its anxious consideration to all aspects and in particular the interest of the victim, the Committee is not persuaded to recommend death penalty for the offence of rape. Instead the Committee recommends sentence of imprisonment for life without commutation or remission.

16.6.2 What really acts as a deterrent is certainty of conviction and not the quantum of punishment that can be imposed. Unfortunately, large number of cases relating to offences of rape end in acquittals. Besides they take a long time for disposal. Therefore what is necessary is to expedite investigation and trial of cases involving offences of rape and other sexual offences against women. In Bangladesh, Prevention of Atrocities against women and Children Act 18 of 1995 has been enacted which provides that investigation and trial of rape cases should be completed within 90 days. The Committee therefore recommends that so far as offences of rape and other sexual offences against women are concerned, a suitable provision should be made requiring the investigation agency to complete the investigation within the prescribed time and for the court to dispose of such cases on priority basis within a period of four months.

16.6.3 Many rape victims do not take steps for prosecution of the victim because of the humiliating and agonizing treatment they are subject to when they give evidence in the court. Lawyers go on asking questions about the character, antecedents, behaviour and reputation of the victim and about sexual acts related to rape which is a dreadful and shameful experience to the woman. Many Judges do not regulate the cross-examination being utterly insensitive to the feelings, reputation and image of the victim. The Committee welcomes the recent amendment to section 146 of the Evidence Act by which cross-examination of the prosecutrix as to her general immoral character in a case for prosecution for rape or attempt to commit rape is prohibited. There is therefore need for specialized training of Judges trying rape cases and to instill in them sensitivity to the feelings of the victims.

16.7 FIRST INFORMATION REPORT

16.7.1 It is a matter of common knowledge that women in India are quite reluctant to disclose even to their dear and near ones that they were victims of rape partly because of the shame, apprehension of being misunderstood and fear of consequences besides her deeply traumatized and confused state of mind. This often contributes to delay in lodging FIR. Unexplained delay in submitting the FIR often proves fatal to the prosecution. The Committee therefore suggests that a suitable provision be incorporated in the Code fixing a reasonable period for presenting FIR in such cases.

ORGANISED CRIME

17.1 The Encyclopaedic Law Dictionary defines crime as "an act or omission which is prohibited by law as injurious to the public and punished by the State".? Certain kinds of wrongs are considered as of a public character because they possess elements of evil which affect the public as a whole and not merely the person whose rights of property or person have been invaded. Such a wrong is called a crime. It can best be defined as any act of omission which is forbidden by law, to which the punishment is annexed, and which the State prosecutes in its own name.

17.2 Crime, in social or non-legal terms, is that "it is behaviour or an activity that offends the social code"? . It has also been defined as an "antisocial act".?