Of Punishment

INTRODUCTION: 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. This chapter deals with following topics: 1) Punishment: Section 53 to 70 and 73 to 74. 2) Rules for assessment of punishment: section 71 and 72. 3) Enhanced punishment for a subsequent offence: Section 75 The right of society to punish, is derived from a supposed agreement which the persons composing the primitive societies entered into, in order to keep order and, indeed, the very existence of the state. According to others, it is the interest and duty of man to live in society; to defend this right, society may exert this principle in order to support itself and also for ensuring the safety from the punishable acts which may endanger the social security. And some are of opinion that the foundation of this right is laid in public utility or necessity. So, delinquents are public enemies and they must be disarmed and prevented from doing evil or it may amount to huge destruction of the society.

PUNISHMENTS: Punishments means a penalty or sanction given for any crime or offence. Punishment must be awarded for the commission of any offence. It must be an evil, an unpleasantness to the victim. Crime is a behavior or action that is punishable by criminal law. A crime is a public wrong, as opposed to moral wrong; it is an offence committed against and hence punishable by the state or the community at large. Many crimes are immoral, but not all actions considered immoral are illegal. So, punishment means some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor, or for the omission of the performance of an act required by law, by the judgment and command of some lawful court.

OBJECT OF PUNISHMENT: Almost everyone accepts the fact that crime can never be wiped out entirely. The main object of punishment is the prevention of the offences. National policy of the state should aim to protect the society and reclaim the criminal by evolving measures to prevent people from committing crimes. The punishment is to reform the society by holding out deterrent as precedents. Punishment must be such as would be felt as punishment by the offender. There are five possible purposes to punishment of criminals. They are:

INCAPACITATION: An offender in prison cannot commit crimes while he is imprisoned. An executed felon cannot commit a crime ever again.

DETERRENCE: The threat of punishment deters people from engaging in illegal acts. Deterrence is also a purpose to impose punishment.

RESTITUTION: Restitution is another aspect of punishment. The felon has to go under some punishments but after that an opportunity is provides so that he may return to his prior position in the society.

RETRIBUTION: The felon caused harm to individual or some individuals or to the society. Those victims are entitled to inflict harm in return.

REHABILITATION: The punishment changes the offender in order to make him a better citizen afterwards. We know that punishment can include mandatory vocational training, counseling, drug treatment etc. Which help an offender to form a new life? So, we can say that though the principal object of punishment is the prevention of offence from the society, a national penal policy of the state should aim to protect the society and reclaim the criminal by evolving measures to prevent people from committing crimes.

PRINCIPLES OF PUNISHMENT: What sentence would meet the ends of justice depends on the facts and circumstance of each case and the court must keep in mind the gravity of the crime. imposition of sentence without considering its effect on the social order in many cases may be in reality a fortieth exercise. In AIR (1970), (GOA)page no-56: - it has been said that attitude of the judge to impose punishment A judge, when administering justice, is as much influence by the tides and crimes of human emotion and patience of other human beings, but yet he is enjoyed by the law in restrained and control them, tills he will not be qualified to try criminal case, but at the same time he is not expected to act as strict-light and close his eyes to deliberate disregard of define to the law of the land. principles of punishments: There are some factions which before awarding appropriate sentence to the accused. each case has to be seen from its special prospective. the relevant factors are as under, a. Motive or previous enmity. b. Whether the accident had taken place on the spur of the moment. c. The intention knowledge of the accused while inflicting the blow or injury. d. Whether the death ensued instantaneously or the victim died often several days. e. The gravity dimension and crime of injury. f. The age and general health condition of the accused. g. Whether the injury was caused without pre-mediation in a sudden flight. h. The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted. i. The criminal background and adverse history of the accused. j. Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock. k. Number of their criminal cases pending against the accused. l. Incident occurred within the family member or close relations.

THEORIES OF PUNISHMENT: The question law makes must answer is, “which system of criminal punishment works best for society” Each country has developed its own ideas for solution to this question, and these solutions then determine how criminals are punished under different system. However, there are four main theories behind the punishment of criminals, none of which has proven 100% effective. These are as follows: 1) Deterrent 2) Retributive 3) Reformative 4) Preventive Deterrent Theory: The main object of deterrent theory is to prevent people from committing crimes by making the penalties more severe than any benefit that might come from committing a crime. This theory aims to deter criminals from repeating a crime in future According to Salmond, “punishment is before all things deterrent and the chief aim of law is to make the evil doer an example and a warning to all that are like minded with him”. if someone knows he will have this had cut off if he is caught stealing then he will prevent himself from doing so. But there are from criticism regarding deterrent theory of punishment. Because according to their opinion even during the region of queen Elizabeth, who was strong supporter of deterrent theory awarding severest punishment to smallest offences did not work out. This indicates the futility of deterrent theory of punishment. Retributive Theory: Retributive theories of punishment are behind the ancient expression “for an eye an eye, for a tooth a tooth” this idea of getting even is the oldest from of justice. It says that a criminal who passes a victim to suffer should be made to suffer him or herself. It makes criminals pay for their crime in proportion to the severity of the crime they have committed. It is however, questionable whether retribution can be justified on the ground of social policy. According to honorable C. Reddy, J, “it is inadequate as a theory since it does no attempt to justify punishment by any beneficial result either to the society or to the punished”. Reformative Theory: The goal of this system is to return a forever criminal to society after required period of treatment and training, usually in prison. The idea is to try to help charging the perform behavior and attitude so that he/she becomes a law abiding citizen. Crime like all other successes should be property diagnosed and treated scientifically. Reformative punishment often involves giving criminals education and qualifications so that they can find a proper job and no longer feel the need to be a criminal. This theory in brain child of Italian scholar Lombnoso. Undoubtedly the modern trend is in favor of reformative justice but there is a strong feeling that the method should not be stressed too far. Preventive Theory: The preventive theory is best on the idea of preventive reputation of crime by disabling the offender through masers, such as imprisonment, fortitude, death punishment suspension of license etc. in olden days the offender was preventive from committing the offence again by disabling him permanently, for example, - if a person committed theft his hand was cut off. This theory does not lay much impasses on the motive of the wrong doer but seeks to take away his physical power to commit the offence. In modern times the disabling aspects has been emphasis by status conferring upon judge’s power to sentences habitual offenders to preventive terms of punishment.

TYPES OF PUNISHMENTS: Generally, punishment may be of two types (I. Corporal Punishment and ii. Financial Punishment). The study of Penal Code,1860 introduces us to 5 kinds of punishments for the offenders. Under section 53, an offender can be punished by the following kinds of punishments: A) Death B) Imprisonment for life C) Imprisonment (either of simple nature or rigorous) D) Forfeiture of property E) Fine We can have a look on the brief description of these punishments below:

DEATH PUNISHMENT: Murder is not only the case where death penalty is awarded. For the following offences, the death penalty may be awarded to the offender: 1) Waging war against Bangladesh (section 121) 2) Abetting mutiny actually committed. (section 132) 3) Giving or fabricating false evidence upon which an innocent person suffers death. (section 194) 4) Murder (section 302) 5) Abetment of suicide of a minor, or an insane or an intoxicated person. (section 305) 6) Dacoity accompanied with murder. (section 396) 7) Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused. (section 307)

IMPRISONMENT FOR LIFE: It can be stated from the case of Laxman Naskar vs state of West Bengal,2000 that,” imprisonment for life” in the Code means “rigorous imprisonment for life”. There is always a question what is actually meant by the term “imprisonment for life”. The present chief justice of Bangladesh Surendra Kumar Sinha told during a visit to Kashumpur jail that, “Life imprisonment means until death.” His such comment was criticized by many of the learned lawyers of Bangladesh by citing the section 57 of the Penal Code. Many of them threw comments that life imprisonment means a period 30 years behind the bars. It can be cited from the case Rokeya Begum (allies Rukaiya begum) vs State [ 19 BLC,2014,AD,204 p.] that , “ sentence of imprisonment for life as used in Bangladesh is utterly a misnomer, indeed it appears to be an erroneous interpretation. The way it has been interpreted, the word “life” does not it’s normal/linguistic meaning. In other words, a person sentenced to imprisonment of life does not necessarily spend his life in prison, although section 45 of the Code defines life as the as the life of a human being, unless the contrary appears from the context. Given interpretation has been arrived at with the aid of section 57 of the Code which provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 years.”

IMPRISONMENT: offenders are being imprisoned so they will learn to do what so right and how they will avoid the wrong. Imprisonment is of two kinds. Rigorous and simple imprisonment. Besides, these two kinds of imprisonment we will discuss the solitary confinement also.

SIMPLE IMPRISONMENT: in case of simple imprisonment, the convicted person is not put to any kind of hard labor. Various offences which are punishable by simple imprisonment are: 1) Under sec. 168 and 169, public servants unlawfully engaging in trade or unlawfully buying or bidding of property. 2) A person absconding to avoid service of summons or other proceedings from a public servant under sec. 172-174. 3) Refusing oath when duly required to turn oath by a public servant. 4) Disobedience to an order duly promulgated by a public servant under section 188. 5) Escaping from confinement negligently suffered by a public servant under section 223. 6) Intentional insult or interruption to a public servant sitting in any stage of a judicial proceeding under sec. 228. 7) Continuance of nuisance after injunction to discontinue under sec. 291. 8) Wrongful restraint under sec. 341. 9) Defamation under sec. 500-502. 10) Uttering any word, or making any sound or gesture, with an intention to insult the modesty of a woman under sec. 509. 11) Misconduct in a public place by a drunken person under sec. 540.

RIGOROUS IMPRISONMENT: In the case of rigorous imprisonment, the convicted person is put to hard labor. In the following cases the convicted person is awarded with rigorous imprisonment: 1) Giving or fabricating false evidence with intent to procure conviction of an offence which is capital by this code under sec. 194. 2) House trespass in order to the commission of an offence punishable with death under sec. 449.

SOLITARY CONFINEMENT: Solitary confinement is another kind of imprisonment which Court may award while convicting a person of an offence for which under the Code the Court has power to sentence him to rigorous imprisonment.

FORFEITURE OF PROPERTY: The punishment of absolute forfeiture of all property of the fender is now abolished. Section 61 and 62 of the penal code dealing with such forfeiture are repealed by Act XVI of 1921. There are, however, three offences in which the offender is liable to forfeiture of specific property. They are section 126,127 and 169 of the code.

FINE: 1) A person in charge of a merchant vessel, negligently allowing a deserter from the Army or Navy or Air Force to obtain concealment in such vessel, is liable to a fine not exceeding TK 500. (s.137) 2) The owner or occupier of the land on which a riot is committed or an unlawful assembly is held, and any person having such riot or unlawful assembly, is punishable with a fine not exceeding to 1000 (s.154) 3) The person for whose benefit a riot has been committed not having duly endeavored prevent it (s.155) 4) The agent or manager of such person under like circumstances (s.156) 5) False statements in connection with an election (s.171-G) 6) Illegal payments in connection with an election (s.171-H) 7) Failure to keep election accounts (s.171-I) 8) Voluntarily vitiating the atmosphere so as to render it noxious to the public health, is punishable with a fine up to TK 500 (s.278) 9) Obstructing a public way or line of navigation, is punishable with a fine not exceeding TK 200 (s.283) 10) Committing of a public nuisance not otherwise punishable, is punishable with a fine not exceeding TK 200 (s.290) 11) Publication of a proposal regarding a lottery, is punishable with a fine not exceeding TK 1000 (s.294-A)

Submitted by Group 2