Of Punishment
Generally, Some pain or penalty warranted by law ,inflicted on a person for the commission of a crime or misdemeanor or the omission of the performance of an act required by law, by the judgment and command of some lawful court. Then it is called punishment.
Punishments are either corporal or not corporal. The former are death which is usually denominated capital punishment, Imprisonment which is either with or without labor.
According to Black Dictionary:
”In criminal law, Any pain , penalty, suffering or confinement inflicted upon a person by the Authority of the law and judgment and sentence of a court, for some crime or offense committed by him or his omission of a duty enjoyed by law”.
According to Oxford Dictionary:
”Punishment means the act of punishing someone or a way of punishing someone by severe , rough or disastrous treatment”.
Examples: (i) I took away my daughter’s car keys as a punishment for her bad behavior.
(ii)Some religions teach that wicked people will suffer eternal punishment in hell after they die.
According to Simone Weil:
“ The severity of the punishment must be in keeping with the kind of obligation which has been violated”.
Finally when someone is officially penalized for s mistake or a crime, that’s punishment. Examples: Stealing a car could result in a punishment involving jail.
Object of Punishment
The main objects of punishment are
(i) Reforming the offender to deter him and others from committing like offences protect society.
(ii) Punishment must be graduated to the enormity of the offence. It should never exceed.
(iii) Incarceration as an objective of punishment seeks to remove the offender from society for the good of the society. As such, A rapist is incarcerated to protect other members of the society from such a person and to give the offender time to pay his debt to the society.
(iv) Through reparation the offender must take restitution to the victims as part of the punishment and as part of the condition for reentry into society.
(v)Rehabilitation as an objective of punishment seeks to reform offenders by helping them conform to the standard of society. Rehabilitative criminal justice tools are parole, probation and work release.
(vi)Through Incapacitation is to protect society by imprisoning those who commit pose a threat to society. Therefore, Society is safer because the criminals have been removed.
(vii) Bond is another objective of punishment. A court imposed bond places limits upon an offenders behavior for specified period of time .The bonds usually require that the offender be or good behavior and may require that the offender do other things such as attend drug and alcohol counselling.
We may also bring objectives through bellowing this theories.
- Deterrent
- preventive
- Retributive
- Reformative
i) Deterrent theory:
The object of criminal justice is to prevent crime and the main function of the theory is to deter from committing crime. Through this theory, there is no possibility to commit a crime in the future period. But this theory is not absolutely correct. Many people think that deterrent should be the main reason for punishment become the aim of punishment is to stop people committing crime. And the deterrent must be so severe that anyone has no courage to commit crimes. In anybody knows they will have their hand cut off. They are caught stealing. Then the number of crime will be decreased.
ii) Retributive theory:
Retributive means retribution. The Function of the theory is that an eye for an eye, a tooth for a tooth. And it is the oldest concept of justice. According to this theory the offender should be made to suffer in proportion to the injury caused to the victim. Basically this theory provide for the criminals pay for their crime proportion to the severity of the crime they have committed. The theory of retributive is the ignoramus theory among other theories of the punishment.
iii) Preventive theory:
The main purpose of the preventive theory to prevent the repetition of the crime, committing by the offender to give penalties such as penalties as imprisonment, exile or forfeiture of property. The preventive theory also fails to achieve its desiration and goal and the person who comes in jail and they are habituated to it.
Irrespective of this, capital punishment is a good punishment for murderers and terrorists. When they are dead they cannot threaten people. Long prison sentences are also a good punishment for violent people or persistent burglars. When they are out of the jurisdiction of the society, the property of the common people are protected.
iv)Reformative theory:
The object of punishment must not be to take vengeance but to reform the criminal so that further crime is not committed. Crime are as like as diseases. So the diagnostic system to sort out the crime must be proper to take the step scientifically. The man function of this theory “You cannot cure by killing”. The theory tries to change the person’s behaviour and attitude. So that he or she may become a law binding citizen in our country. Finally reformative punishments involves given criminals educational qualifications so they can get a proper job and any body don’t feel the need to be a criminal. Any in this way, the number crimes must be decreased. So the general people in our country can get a great opportunity to help the offender to commit their crime. And this theory is almost the universal recognized theory.
Provisions Relating to Punishment under Penal Code 1860
Chapter III of penal code, 1860, deals with the provisions relating punishment.
They are as follows-
Sec-53.The punishments to which offenders are liable under the provisions of this Code are,—
Firstly, — Death;
Secondly, — ‘[Imprisonment for life];
This is not necessary Thirdly, —[Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act 1949 (Act No. II of 1950]. deportation [omitted]
Fourthly, —Imprisonment, which is of two descriptions, namely:—
(1) Rigorous, i.e., that is, with hard labour;
(2) Simple;
Fifthly, — Forfeiture of property;
Sixthly, — Fine.
[Explanation.—In the punishment of the imprisonment shall be rigorous.]
Section analysis
The principle governing the imposition of punishments are –
1.The enormity of offence .
2.The circumstances under which crime was committed.
3.The state of health of the accused .
4.sex of the accused
5.The position in life of the accused
6.The extent of deprivation of comforts to which the accused was accustomed .
This section enumerates the forms of punishment to which to which the offender are now liable under the code .They are now five-
1. Death
2. Imprisonment for life
3. imprisonment –
a.Rigorous i.e with hard labour
b.simple
4. Forfeiture of property
5. fine
Case References
The object of punishment is to reform the society by holding out deterrents as precedents. Punishment must be such as would be felt as punishment by the offender. It must be commensurate with the degree of shock that it causes to the conscience of the society.
AIR 1951 Orissa 259 (DB) 1950 Trav Co LR 116 (DB)
An exceedingly light sentence may not be illegal but if it is inadequate, The High court will not hesitate to enhance it, if it be of the view that enhancement is called for.
PLD 1956 (WP) Lahore 704
Sec-[53A.(1) Subject to the provisions of sub-section (2), any reference to “transportation for in any other law for the time being in force shall be construed as a reference to “imprisonment for life”.
(2) Any reference transportation for a term or to transportation for a refer term (by whatever named called) in any other law force time being in force shall be deemed to have been omitted.
(3) Any reference to “transportation” in any other law for the tile being in force shall— if the expression means transportation for life, be construed as a reference to imprisonment for life;
Sec-54.In every case in which sentence of death shall have been passed, Government] may, without the consent of the offender, commute the punishment for any other punishment provided by this Code.
Sec-55.In every case in which sentence of [imprisonment] for life shall have been passed, [the Government] may, without consent of the offender, commute the punished for imprisonment of either description for a term not ending [twenty] years.
Section analysis
The principle governing the mitigation of punishments are-
1.whether the offence was committed as a result of momentary impulse provocation ;
2.in excess of the right of private -defence
3.Absence of criminality or bad intention in the act.
4.state of the health of the accused .
5.sex of the accused .
6.in the course of self –protection of himself or his friends .
7.Drunkenness
8.childhood
Case References
Under section 55 commutation of sentence can only be made by the government and not by the court. NIR 1980 UC 361
Sec- [55A.Nothing in section fifty-four or section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.]
Under Article-49 of Bangladesh constitution. The president has power to grant pardons. Reproves and Respites and to omit. Suspend or commute any sentence passed by any court-or tribunal or other authority.
Sec-57.In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to rigorous imprisonment for thirty years].
Section analysis
This section provides that for purposes of calculation of fractions of punishment that an imprisonment for life is reckoned as imprisonment for thirty years .This does not mean that for all purposes imprisonment for life should be treated as imprisonment for thirty years .
Case References
Normal sentence under section 302 of the penal code is death but under extenuating circumstances it may be imprisonment for life but such sentence can never be 30 years taking the aid of section 57 of the code. Farid Ali vs State 4 BLC 27
Sec-60. In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple.
Sec-63.Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable: is unlimited, but shall not be excessive.
Section analysis
When the legislature has not fixed any upper limit for quantum of fine in respect of a particular offence ,the court has freedom to fix any amount but then the court must see that the fine imposed is not excessively high or repulsively low.
Case References
While imposing fine on the accused the court should have regard to the nature of the offence and the means of the accused to pay the fine imposed. AIR 1929 All 919 (DB)
Sec-64.In every case of an offence punishable with imprisonment as well as fine, in which he offender is sentenced to a fine, whether with or without imprisonment, and in every case in offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to directly the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
Section analysis
Wherever a fine is imposed whether with imprisonment or with fine alone in default in payment of fine, it shall be competent to the court to sentence to the offender to suffer imprisonment of a certain term when the defaulter defaults in payment of fine which shall be in excess of any other imprisonment already imposed.
Case References
Section 64 does not make it imperative on a court to award imprisonment in default of payment of fine.
PLD 1979 Kar 261
Imprisonment in default of fine should also be long enough to induce the accused to pay the fine rather than suffer imprisonment.
AIR 1950 Kutch 73
Sec-65.The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one- fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
Case References
The term of imprisonment which can be legally awarded in default of payment of fine is not to exceed one fourth of the maximum term of imprisonment fixed for the offence.
Abdul Hakim Bhuiyan vs Gulabi 6 DLR 488.
Sec-66.The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.
Sec-67.If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine; shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty taka, and for any term not exceeding months when the amount shall not exceed one hundred i-aka, and for any term not exceeding six months in any other case.
Case References
Section 67-when an offence is punishable with fine only, it can be realized by issue of distress warrant etc and also by committing the accused to imprisonment. Therefore in an offence punishable with fine only, awarding to imprisonment in default is not illegal. State vs Abul Kashem 37 DLR (AD) 91.
Sec-68.The imprisonment which is [imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
Sec-69.If, before the expiration of the term of imprisonment fixed in default of payment such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.
Illustration
A is sentenced to a fine of one hundred taka and four months imprisonment in default of payment. Here, if seventy-five taka of the fine be paid or levied before the expiration of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seventy-five taka be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A will be immediately discharged. If fifty taka of the fine be paid or levied before the expiration of the two months of the imprisonments, A will be discharged as soon as the two months are completed. If fifty taka be paid or levied at the time the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.
Case References
Section 68 & 69- In view of section 68 of the code the imprisonment will terminate on payment of fine. Section 68 of the code speaks that by payment of proportional amount of fine the imprisonment shall not terminate. The Appellate Division in exercise of its inherent power can invoke Article 104 of the constitution to do complete justice in a case but there being a clear provision in substantive law dealing with the subject, it would not be proper to invoke Article 104 of the constitution by ignoring the provision as of sections 68 and 69 of the penal code when exercise of Article 104 of the constitution comes into direct conflict with the express provision of the law. Lt Gen Hussain Muhammad ershad vs State 2001 BLD (AD) 25.
Sec-70.The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period then six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.
Section analysis
Imprisonment in default of fine does not liberate the offender from his liability to pay the full amount of fine imposed on him. Such imprisonment is not a discharge or satisfaction of the fine but it is imposed as a punishment for non-payment or contempt or resistance to the due execution of the sentence .The offender cannot be permitted to choose whether he will suffer in his person or his property. His person will cease to be answerable for the fine but his property will for a time continue to do so. The bar of six years may save the property of the accused but not his personal arrest.
The death of an offender does not discharge any property which would ,after his death,be legally liable for his debts from to discharge any fine due from him.
Case References
Section 70- Under section 70 the fine imposed on the deceased accused may be realized from his assets which after his death may come into the possession of his legal representative. An order directing the fine to be realized from any property of the legal representatives of the deceased accused is illegal. Daktar Ali vs Sukramain Das 6 DLR 29
No fine can be levied after period of six years after the passing of sentence, or, where, under the sentence, the offender is liable to imprisonment for a longer period than six years, then after expiration of that period. AIR 1941 Bom 158.
Sec-71.Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or
Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punishe4tyith a more severe punishment than the Court which tries hit could award for any one of such offences.
Illustration
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifth years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But if while A is beating Z, Y interferes, and A intentionally strikes, y,, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.
Case References
Double punishment in a case in which the same acts constitute offences under two different statutes or the same acts constitute offences falling within two or more separate definitions of law, the person so accused cannot be made to suffer separate sentences for each of the said offences, although he may be convicted for the same. Imposition of the separate sentences on each of these counts is a contravention of section 71 and amounts really to a double punishment. The imposition of two separate sentences, even though they may have been made to run concurrently for each of the offences, illegal.
Fazlul Hoque vs State 11 DLR 216 PLD (Dac) 931
Separate sentences for rioting and for hurt or grievous hurt, even where the common object of the unlawful assembly was to commit assault, are legal.
Amir Hossain vs Crown 9 DLR 71.
Kidnapping two persons by same event considered to be separate offence as the element of time was different for two persons.
Criminal Law journal 1926 21 P 4
Where the offence committed is made up of parts and the minor offence or offences are component parts of the greater offence and the two or more offences are merged in one another, the first part of section 71, PC is attracted and separate sentences cannot be awarded, as the first clause of this section applies.
1969 P CricLJ 610
Where the offence consists of several acts and one or some of them alone constitute a different offence, the para applies and the accused cannot be sentenced to a more severe punishment that the one which could be inflicted on him for any such offence.
21 DLR 172
Sec-72.In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all.
Section analysis
This section is intended to prevent an offender whose guilt is fully established from eluding punishment on the ground that the evidence does not enable the Tribunal to pronounce with certainty under what penal provision his case falls.
Sec-73.Whenever any person is convicted of an offence for which under this Code 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 to say—
a time not exceeding one month if the term of imprisonment shall not exceed six months:
a time not exceeding two months if he term of imprisonment shall exceed six month and shall not exceed one year:
a time not exceeding three months if the term of imprisonment shall exceed one year.
Section 73- where the substantive punishment awarded does not include imprisonment but only fine, solitary confinement cannot be awarded. 1882 Pun Re (Cr) No.9, p 13 (DB)
Even if section 72 allows a sentence of solitary confinement in each separate case it is not expedient to impose the sentence for a period of over three months. I Upp Bur Rul (Cri) 146.
Sec-74.In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed en days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.
Section analysis
Continuous solitary confinement instead of reforming a prisoner has often resulted in deterioration of his mental faculties .Therefore, regular intermitted punishment has to be given.
Sec-75.Whoever, having been convicted, —
(a) by a Court in Bangladesh of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards.]
(b) [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of 1973).]
Section analysis
The object of this section is to provide additional sentence to persons previously convicted of certain offences .This section does not create a separate offence .it only imposes a liability to enhance punishment.
Case References
Where the accused pleads guilty to the charge of previous conviction that amounts to admission of guilt under section 255 A CrPC and, therefore, the previous conviction need not to be proved under section 511 CrPC. Qaim Din vs State 10 DLR (WP) 69.
Enhanced sentence for previous conviction is to be legally proved. Mere admission by the accused is not enough. ALif Din vs State 10 LDR (WPC) 41.
Where the accused has not been proved to have been a habitual offender, section 75 cannot be applied merely on an admission made by the accused. PLD 1958 Pesh 6.
Where the previous convictions of the accused were not brought on record as provided under section 511 no enhanced punishment can be awarded for previous conviction and if it has been awarded, The High Court will reduce the sentence. 1968 P CriLJ 396.
Before passing an enhanced sentence under section 75, the improvement or otherwise in accused’s character subsequent to prior conviction and the nature of subsequent offence should be considered. 40 Punj LR 118 (DB).
Loopholes of Penal Code 1960
The Penal Code 1960 is almost ok, but still some loopholes may be found. Some of them are following
Not up to date: The Penal Code was enacted as back as far in 1860 being Act No. XLV of 1860.The Penal Code has defined the offences and prescribed separate punishment for each offence. Minor amendments have been made in the Penal Code according to necessity from time to time, but no substantial change has been made in the Penal Code. Due to the enormous increase of crime during the last few years with the change of techniques of crimes, some of them are not covered by the traditional penal code. Because of this many special laws have been passed by the Parliament like The Information and Communication Technology Act (ICT) 2006 to cover cyber crime, Nari O Shishu Nirjaton Daman Ain 2004.
Not exhaustive: The Penal Code is only exhaustive on the matters specially dealt with by it. So this Code on the point not specifically dealt with on that matter not exhaustive. And we have to go to another law for covering that side. For example the Cyber crime are not dealt with by this Code. .
Low Punishment: This punishment was prescribed in 1860 under the circumstances of the society prevalent at that time. But since thereafter a period of more than a century and a half has passed away and things have undergone much changes during this period with a tendency amongst dishonest person.
Section 121 & 122 of the Penal Code prescribed a punishment of death or imprisonment for life with fine for the offence of waging war or attempting to wage war or abetting waging of such war against Bangladesh. Considering the circumstances of violence created by some militant people in the country causing rampant bomb blast by explosive substances this punishment should be increased
Section 124A deals with sedition against the Government established by law and the punishment prescribed for sedition is imprisonment for life or imprisonment, which may extend to three years or with fine. The punishment of three years imprisonment as an alternative to life imprisonment appears to be quiteinconsistent and “or with fine” only, appears to be further inconsistent
Section 304B has prescribed a punishment of three years imprisonment or fine or both for an offence of causing death of any person by rash and negligent driving of any vehicle or riding on any public way. It may be mentioned here that there was no provision like 304B in the original Penal Code. During the last several years, rash and negligent driving of motor vehicles on public roads by reckless drivers has been causing many tragedies including many deaths of innocent persons causing irreparable loss to their families and dependants . So the prescribed punishment should be increased.
Section 509 deals with insulting the modesty of a woman by gesture and posture or by uttering words or exhibiting any object and the punishment is prescribed for one year only that is too low.
Less amount of fine: The Penal Code was enacted as back as far in 1860 being Act No. XLV of 1860. The fine was prescribed in 1860 under the circumstances of the society prevalent at that time. But since thereafter a period of more than a century and a half has passed away and things have undergone much changes during this period and the valuation of money is far difference from present time . i.e. Section 272 has prescribed a punishment for six months imprisonment or a fine of taka one thousand or with both for an offence of adulteration of food or drink. In view of the deteriorating business ethics and morale, this punishment of an imprisonment for six months or a fine of taka one thousand only is not enough to check adulteration of food or drink. Moreover, the value of taka one thousand has diminished to the lowest level
Recommendations
The various types of punishment are provided in chapter three particularly in sections 53 to 75 In The Penal Code 1860. All the theories of punishment which were in vogue (i.e.Deterrent theory, Retributive theory reformative theory, preventive theory) over the period In the criminal jurisprudence, was not accepted by The Penal Code 1860. The then Penal Code 1860 met the demand of the society. So it was exhaustive from the angle of the demand of the society. But this does not mean that it is also exhaustive even in present perspective society. Simply because the manners, ways, thinkings of committing crime have been changed (ie. Cyber crime email bombing, data theft, crime against humanity and the like). That’s why parliament has to fill up the vacuum by enacting the new laws like
- The Information And Communication Technology Act 2006.
- Nari o Shishu Nirzatan Daman Ain 2003.
- The Dowry Prohibition Act 1980.
- The Pornography Control Act 2013 and the like
This act recognizes only preventive and reformative theories of punishment. Simply because, As the object of punishment is to secure the society free from all crimes then, the question arises why should we make any wrongdoer an example for the peace loving society? If we do the same, the wrongdoer is deprived by the society and is neglected by all and the society is used to keeping pace with the mind setting of atmosphere.
The only one punishment can not be the solution for any offence. This act enunciates that any person convicted of imprisonment for life commits a murder then he will be awarded death sentence. But in 2014 the Supreme Court observed that the only one punishment(death sentence) provided in the Nari o Shishu Nirzatan Daman Ain 2003 is excessive in response to a case filed by ASK.
Lacking in providing directions in commuting punishment; This act is silent in providing directions in commuting punishment by the government. This act should clarity the demarcating lines between the power of government in commuting punishment and the criminal entitled to qualified punishment.
The master minded criminal should be kept out of section 57 as an abettor to commit crime.
