MODULE 3

PUNISHMENTS:
 Punishment is the imposition of an undesirable outcome on a
group or individual.
 The practice of the punishment of crimes is known as penology.
 The reason for punishment includes deterrence, rehabilitation,
incapacitation, etc.
 Punishment can be harmful as well as positive.
 The depletion of behavior via the application of an unpleasant
stimulus is known as positive punishment, whereas removing a
peaceful stimulus is known as negative punishment.
 The ‘Hammurabi’s Code’ is the first ever codified law which is a
criminal law system which can be achieved by an ‘eye for an eye’
approach. It means the punishment must match the wickedness
of its offence.
 According to Aristotle, “Punishment is required to maintain
equilibrium in the society.”

OBJECT OF PUNISHMENT:
 To protect society from mischievous elements by deterring
potential offenders.
 To prevent actual offenders from committing further offences.
 To eradicate evils and reform criminals and turn them into law-
abiding citizens.
 To administrate justice partly by inflicting pain to deter criminals
and others from indulging in crime and partly by reforming
criminals.
  To maintain rules and regulations for a crime-free country.

SENTENCING POLICY:
The sentencing policy is measured on the following factors:

 The gravity of the violation;

 The seriousness of the crime; and
 Its general effect upon public tranquility. {The public tranquility
means the group of persons doing an activity that causes the
disturbance of the peace in the society.}

PRINCIPLES OF SENTENCING:
The principle for sentencing developed through court decisions and
legislation. The principles which are generally followed by the court are
as follows:

 EXCESSIVENESS/PARSIMONY - the punishment which is given

shall not be severe unless required.
 PROPORTIONALITY - the sentencing shall fit to the overall gravity
of the crime.
 PARITY - the punishment should be similar for similar types of
offences committed by offenders under similar situations.
 TOTALITY - when an offender is punished with more than one
sentence, the overall sentence must be just and appropriate which
shall proportional to the offending behavior.
 PURPOSE - the sentencing shall achieve the purpose of the
punishment. The purpose of punishment can be a deterrent,
rehabilitative, protection of the public, etc.
  SIMPLICITY AND PREDICTABILITY - sentencing shall not be
depending on the bias or personality of the judge. There shall be a
clear and definite scheme of sentencing.
 TRUTHFULNESS - the sentencing shall reflect the actual term to
be served by the prisoner in prison, so there shall be no place for
ambiguity.

THEORIES OF PUNISHMENT:
Theories of punishment generally contain policies regarding the
handling of crimes and criminals. The theory of punishment deals with
the principles on the basis of which punishment is to be given to the
offender, with the object of safeguarding a society deprived of law and
order. There are four types of theories of punishment:-

A. Deterrent theory

B. Retributive theory

C. Preventive theory

D. Reformative theory

A. DETERRENT THEORY:
 This theory says that a man would be deterred from committing a
crime if the punishment applied was swift, certain, and severe.
 This theory focuses on deterring offenders from criminality or
repeating the same crime in the future.
 It creates fear of punishment in like-minded people.

CRITICISMS:
 It has failed to serve its purpose.
  It has proved ineffective in checking crimes.
 It does not give a chance to reform the accused.

B. RETRIBUTIVE THEORY:
 This theory is based on the famous saying that a ‘Tit for Tat’, ‘ Eye
for Eye’ or’ Teeth for Teeth’.
 The main motive of this theory is to inflict a similar amount of
pain endured by the aggrieved party because of the offender’s
activity.
 This theory insists that a person deserves punishment as he has
done a wrongful deed.
 It signifies that no person shall be arrested unless that person has
broken the law.
 This theory is harsher than other theories.

CRITICISMS:
 It is difficult to determine the proportion of pain or revenge in this
type of punishment, meaning to what and to what extent the pain
should be returned.
 The entire natural justice principle will collapse if everyone takes
revenge on each other according to their hate and the injury
caused.

C. PREVENTIVE THEORY:
 This theory aims to prevent crime rather than take revenge.
 It is also called the disablement theory.
 This theory serves to protect society by physically preventing
offenders from committing further crimes, often through
imprisonment or, in extreme cases, capital punishment.
  It aims at public safety.
 This theory has used a restraint that an offender if repeats the
criminal act is culpable for death, exile or imprisonment.
 The theory gets its importance from the notion that society must
be protected from criminals.

D. REFORMATIVE THEORY:
 This theory helps to reform criminals, thereby transforming them
into law-abiding citizens.
 Nobody is indeed a criminal by birth, crimes sometimes happen
accidentally or situationally.
 In this case, the offender should get another chance to rectify his
mistake.
 There is the facility of correctional homes, juvenile homes,
training schools, and reformatories.
 The main object of this theory is the rehabilitation of inmates.
 Nobody is indeed a criminal by birth, crimes sometimes happen
accidentally or situationally. In this case, the offender should get
another chance to rectify his mistake.

CRITICISM:
This theory only works for juvenile and first-time offenders and not for
hardened criminals who have committed multiple crimes.

KINDS OF PUNISHMENTS:
Section 4 of the BNS mentions six kinds of punishments which can be
given by the Criminal Courts if the person is held liable under the BNS:

A. Death;
 B. Imprisonment for life;
C. Imprisonment, which is of two descriptions, namely:-
 Rigorous with hard labor;
 Simple;
D. Forfeiture of property;
E. Fine;
F. Community Service.

A. DEATH PENALTY:
 The death sentence is a punishment which is sanctioned by the
government and ordered by the court where a person is put to
death for a crime acted by him.
 It is also referred to as "Capital punishment", as the criminal
hangs until death.
 The punishment is carried out by hanging.
 This type of punishment is rare.
 The severest form of punishment, awarded for the most heinous
crimes, such as murder (Section 103), waging war against the
state (Section 147), abetment of mutiny (section 160) or certain
aggravated forms of rape.

Bachan Singh vs State Of Punjab

The Supreme Court held that capital punishment shall be given in the
“rarest of the rare” case. However, what constitutes the “rarest of the
rare cases” is not prescribed by the Supreme Court or by the
legislature.

Dhananjoy Chatterjee v State of West Bengal

The accused was working as a watchman in the building of the
deceased. He had raped and murdered an 18-year-old girl at her own
home. The High Court of West Bengal ordered the death penalty under
Section 103 of the BNS. While the appeal in the Supreme Court, the
court held that case will be considered under “the rarest of the rare”
case, thereby there will be no commutation of the punishment.

B. LIFE IMPRISONMENT:
 Life Imprisonment is a form of punishment where the convict is
sentenced to remain in prison for the remaining life period of
their natural life.
 This punishment is given for serious crimes wherein the convicted
remains in prison until his/her last breath.
 Section 6 of BNS, states that the term of the life imprisonment is
20 years. Imprisonment for life cannot be simple; it is always
rigorous.
 Section 473 and 474 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS) states that the state government has the power to remit or
commute a life sentence.
 The President or Governor can also commute sentences under
Article 72 and Article 161 of the Indian Constitution
 Life imprisonment is imposed for crimes of severe nature, such as
murder (Section 103), kidnapping for ransom [Section 140(2)],
gang rape [Section 70(1)], and waging war against the state
(Section 147).

State of Punjab v. Dalbir Singh

The appellate challenged that whether life imprisonment means
imprisonment for the convict's entire life. The Supreme Court clarified
that life imprisonment means incarceration for the entirety of the
convict's natural life, unless commuted or remitted by the state under
appropriate legal provisions.

Union of India v. V. Sriharan

The Supreme Court established that life imprisonment could extend

beyond 14 or 20 years and allowed courts to impose sentences without
the possibility of remission for heinous crimes.

C. IMPRISONMENT:
 This punishment removes the entire convict’s freedom and puts
him in jail.
 In general sense, the imprisonment means captivity or to put
someone in prison.
 Under Section 4 of BNS, imprisonment can be of two types:-
Rigorous & Simple imprisonment
 RIGOROUS IMPRISONMENT:
 In rigorous imprisonment, the convict works hard as a laborer.
They are assigned tasks like cutting wood, digging, etc.
 It was imposed for serious offenses involving physical or moral
turpitude.
 Examples:
 Robbery [Section 309(4)]
 Dacoity [Section 310(2)]
 House-trespass with bad intentions is punishable with death
[Section 332(a)]
Swaran Singh V. State of Punjab
Swaran Singh, the appellant, was convicted under Section 304 (Part II)
of the Indian Penal Code (IPC) for culpable homicide not amounting to
murder. The trial court sentenced him to rigorous imprisonment
imposed for acts of violence during communal riots for three years. The
Supreme Court emphasized that punishment should fit the crime and
must consider the gravity of the offense and the surrounding
circumstances. The Supreme Court reduced the appellant's sentence
from three years to one year of rigorous imprisonment.

 SIMPLE IMPRISONMENT:
 Imprisonment where an accused convicted of a crime is kept in
prison without any labor or hard work.
 It was imposed for minor offenses or offenses of negligence.
 Examples:
 Defamation [Section 356(2)]
 Public nuisance (Section 292)
 Wrongful restraint [Section 126(2)]

Section 7 of the BNS stated that the competent court has the discretion
to decide the description of sentencing. It can be of various types, like:

 Wholly or partly rigorous; or

 Wholly or partly simple; or
 Any term to be rigorous and the rest simple.

D. FORFEITURE OF PROPERTY:
 Under this punishment, the government seizes all the property or
assets of the convicted.
  The seized property or asset may be movable or immovable.
 Forfeiture of property as punishment is rarely used; generally in
cases like waging war against the government under section 154
and section 155.
 The main purpose of giving this punishment is to ensure
offenders do not profit from their crimes.

R.S. Nayak v. A.R. Antulay

The Supreme Court held that forfeiture of property is punitive and must
align with statutory provisions.

Maqbool Hussain v. State of Bombay

The Supreme Court clarified that forfeiture is lawful if prescribed by
statute and follows due legal procedure.

E. FINE:
It is a kind of monetary punishment. The convict has to pay the fine as
a punishment for the offence.

Section 8 states that amount of fine, liability in default of payment of

fine, etc.

Section 8(1) states that there were no sum is expressed to which a fine
may extend, the amount of the fine to which the offender is liable is
unlimited, but shall not be excessive.

Section 8(2) of the BNS states that if a fine is part of a sentence and the
offender defaults on paying it, the court can impose imprisonment. The
term of imprisonment for default cannot exceed the maximum term
prescribed for the substantive offense.
Section 8(3) states that if the offense is punishable with both
imprisonment and fine, the term of imprisonment in default of fine
shall not exceed one-fourth of the maximum term of imprisonment
prescribed for the offense.

Example:

For an offense with a maximum punishment of 4 years imprisonment

and a fine, the imprisonment in default of fine cannot exceed 1 year.

Section 8(4) states that the imprisonment for default of fine can be of
either rigorous imprisonment or simple imprisonment depending on
the nature of the substantive punishment imposed for the offense.

Section 8(5) states that if the offense is punishable only with a fine, and
the offender defaults on payment, imprisonment can be imposed as
follows:

 Fine up to ₹5,000: Imprisonment up to 2 months.

 Fine up to ₹10,000: Imprisonment up to 4 months.
 Imprisonment up to 1 year.

Section 8(6)(a) states that if the offender pays the fine or a portion of it
during the imprisonment term imposed for default, the imprisonment
ceases or is proportionately reduced.

Section 8(6)(b) states that if the fine is payable in installments, default

of payment of any installment can result in imprisonment, provided the
total imprisonment does not exceed the maximum prescribed for
default.

Section 8(7) states that the fine can still are recovered after the
offender has served imprisonment for its default.
Shahejadkhan Pathan v. State of Gujarat
The Supreme Court reiterated that fines imposed must be
proportionate to the offense and reasonable in amount to ensure
fairness.

F. COMMUNITY SERVICE:
 Community service is a form of punishment which is an
alternative to traditional forms of punishment like imprisonment
or fines.
 This punishment involves requiring offenders to perform unpaid
work for the benefit of society as a penalty for their crimes.
 It is not explicitly mentioned in the Indian Penal Code (IPC) or
Code of Criminal Procedure (CrPC).
 The offender performs voluntary work, such as cleaning public
spaces, assisting in social welfare programs, or other constructive
tasks.
 It aims to reform the offender and contribute to public welfare.
 It is typically used for minor offenses, such as traffic violations,
vandalism, or petty theft.

Gaurav Kumar v. State of Haryana

A Haryana court sentenced a man to plant trees and care for them for a
year as part of his punishment for a minor offense.

Satish Kumar v. State of Rajasthan

A Rajasthan High Court bench ordered offenders in a road rage case to
clean a local government hospital for six months.
SOLITARY CONFINEMENT:
 Solitary confinement is a law in which a prisoner lives in isolation
from the other prisoners under strict surveillance.
 It is the most rigorous form of punishment which is generally
given to those who are threatful not only to society but also to the
other prisoners of jail.
 This punishment is generally for hard core criminals.
 Solitary confinement impacts the prisoners in such a way that
they might get into depression, and they lose their mental
stability due to isolation.
 Solitary confinement is considered as an inhuman punishment.

Section 11 of BNS states that whenever any person is convicted of an

offence for which under this Sanhita the court has power to sentence
him to rigorous imprisonment, the court may, by its sentence, order
that the offender shall be kept in solitary confinement for any portion
or portions of the imprisonment to which he is sentenced, not
exceeding three months in the whole, according to the following scale,
that is say:

 A time not exceeding one month if the term of imprisonment shall

not exceed six months;
 A time not exceeding two months if the term of imprisonment
shall not exceed one year;
 A time not exceeding three months if the term of imprisonment
shall exceed one year.

Sunil Barta v. Delhi Administration

Any harsh isolation from society by long, lonely, cellular detention is
penal and so must be inflicted only consistently with fair procedure, in
such cases written consent and immediately report to higher authority
is the least if abuse is to be tabooed.

Kishore Singh v. State of Rajasthan

It was held that a sentence inflicting solitary confinement for the whole
term of imprisonment is illegal if exceeding 14 days. It must bear only a
portion of the term of imprisonment.

LIMIT OF SOLITARY CONFINEMENT:

Section 12 of BNS states that the limit of solitary confinement
 Solitary confinement in any sentence can be awarded not more
than 14 days at a time for a maximum of 3 months. It must be
awarded in intervals and periods.
 If imprisonment exceeds 3 months then solitary confinement
should not exceed 7 days in a month. If the imprisonment does
not exceed more than 6 months, then solitary confinement should
be for 1 month.
 If the imprisonment exceeds 6 months and does not exceed one
year, then solitary confinement can be imposed for 2 months. If
the imprisonment exceeds one year, then solitary confinement
should not exceed 3 months.

Charles Sobraj V. The Suptd., Central Jail, Tihar

It was held that to exercise solitary confinement the due process of law
to be followed otherwise it would be a violation of Article 21 of the
Constitution.
Unni Krishnan v. State of Andhra Pradesh
It was held that punishment under solitary confinement is protected
under Article 21 of the Constitution of India.

ENHANCED PUNISHMENT:
 Enhanced punishment refers to situations where the law
prescribes stricter penalties for certain repeat offenders or under
specific aggravating circumstances.
 It ensures a stronger deterrent effect and addresses more severe
violations of law.
 Section 13 of BNS states that when someone is convicted of a
second offense that is punishable under Chapter X or Chapter XVII
of this Sanhita, and the first offense resulted in a sentence of
three years or more in prison.
 The offender is liable to a greatly enhanced sentence, such as life
in prison or up to ten years in prison
 The section applies to a previous conviction for a similar offense,
but the punishment imposed for the first offense does not need
to have been at least three years.
 In simple term, if a person, who has previously been convicted
and punished for certain serious offenses, commits another
offense of a similar nature, they can be sentenced to life
imprisonment or imprisonment for up to ten years.

In Re Sugali Nage Naik Case

The Supreme Court held that for Section 75 IPC to apply, the previous
conviction must be for an offense punishable with imprisonment of
three years or more. In this case, the prior conviction was for a two-
month sentence, which did not meet the criteria for enhanced
punishment under Section 75.

 Section 71 of BNS - Repeat offenders in rape cases:

A person previously convicted under certain Section 64 [e.g., 64, 66,

70(1)] may be punished with life imprisonment or the death penalty.

Shakti Mills Gang Rape Case

In this landmark case, the Mumbai Sessions Court convicted the
accused under Section 376E IPC, awarding the death penalty to three
repeat offenders of gang rape. This was the first instance of the death
penalty being awarded under this provision.

 Habitual Offenders:
Several sections impose stricter penalties for repeat offenders.

Sections like 129 of the BNSS and other state-specific habitual offenders
laws deal with enhanced penalties for habitual offenders in the IPC.

Kedar Nath v. State of Rajasthan

The court ruled that enhanced punishment for habitual offenders
requires a history of repeat offenses, and such history must be proven
conclusively.