— Dr P C Mazumdar The aim of penal administration is the prevention of future crime and restoration of criminals to the society as a reformed character. The modern penal code had been developed basically from 18th century when there were emerging trends of industrialisation, renaissance and revolution and the development of penal jurisprudence in India stems from many controversies which veer around the deterrent effect of punishment as found in administering criminal justice although reformative measures are also present with the underlying principles of modern penology.
Punishment governs all mankind, it alone preserves them and works while their guards are asleep, the wise considers punishment as the perfection of justice. Through the instrumentality of criminal law, security of person and property of the people are protected. Therefore, protection of society and stamping out criminal proclivity must be the objects of law which must be achieved by imposing appropriate sentence. The genesis of penal theories which enunciate the aim of sentencing have measurable influence over the kind of sentences to be rewarded in order to unravel punishment as a social institution.
The Supreme Court in Karanjit vs State, reported in Air 2000 held that the purpose of punishment is both punitive and preventive to make the accused acceptable in society as a useful social being by making him relent and repent. Although accused are menace to the society threatening the peaceful and harmonious co-existence of the society and they are likely to be a continuous threat to the society if once they come out in incarceration, at the same time there is no reason to believe that they are not reformed and rehabilitated and viewing from the perspective of the accused the court opined that the appellant be given a chance to repent that what they have done is neither approved by law nor society and they should be reformed and rehabilitated to become good and law abiding citizens. Therefore, keeping in view the broad objective of punishment of criminals by the courts in all progressive societies, true diktats of justice demand that the attending relevant circumstances should be taken into account for determining the proper and just sentence.
The sentence should bring home to the guilty party, the consciousness that offences committed by him, was against his own interest and also against the society of which he happens to be a member. It is candidly clear that in the present set up punishment to be imposed should not merely be punitive but corrective as well, as held by the judiciary in various decisions according to facts and circumstances of each case, as the trend has been shifted and it is the underlying principles of modern penology. In this back drop, the observation of the Supreme Court in State (Delhi Admn vs Laxman Kumar) is considered relevant in respect to fairness in imposing punishment in the present day system.
“Mankind has shifted from the State of Nature towards civilised society and it is no longer the physical power of litigating individual or the ruler or even opinion of majority that takes away the liberty of a citizen by convicting and making him suffer a sentence of imprisonment. Award of punishment following conviction at trial in a system wedded to Rule of Law is the outcome of cool deliberation in the court room after adequate hearing is afforded to parties accusation is brought to the accused, the prosecution is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence.”
Courts have to consider not only right of the criminal to be awarded just and fair punishment, but also the right of the victim of the crime to have the assailant appropriately punished. In the same vein, the Court emphasised that crime does not go unpunished and the victim of crime and also the society has the satisfaction that justice has done to it. Courts must do justice by promotion of good faith and prevent law from crafty invasions and it must maintain the social balance by interferring where necessary for the sake of justice and refuse to interfere where it is against social interest and public good.
The criminal law adheres in general to the principle of proportionality in prescribing liability according to culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judges in arriving at a sentence that reflect more subtle consideration of culpability that are raised by special facts of each case. Judges in essence affirm that punishment ought always fit the crime which is crying rallies of the day, yet in practice, sentences are determined by other consideration also, sometimes, it is correctional needs of the perpetrator that are offered to justify the sentence. Sometimes keeping him out of circulation and sometimes traffic results of his crime. Inevitably, those considerations cause departure from just desert as the basis of punishment and creates cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal respected in principle and inspite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with severity is now unknown in civilised society but such a departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathy to the perpretor of crime, leaving the victim or his family into oblivion. No fool proof formula is possible that would provide a reasonable criteria in determining just and appropriate punishment in infinite variety of circumstances that may affect the gravity of crime. In absence of any fool proof formula, which may provide any basis of reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgement may be equitably distinguished. ASSAM TRIBUNE
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