Theories of Punishment:

Anyone who breaks the law, which is the thread that keeps society together, is a criminal who will be
punished. Because punishment is a type of social security, it usually deprives the offender of some
benefits that he or she would otherwise have. Punishment would be futile if the primary goal was to
induce pain.

There are following five theories of punishment

1) Deterrent Theory of Punishment

2) Preventive Theory of Punishment

3) Reformative Theory of Punishment

4) Retributive Theory of Punishment

5) Compensatory Theory of Punishment

Retributive Theory of Punishment

The Retributive Theory of Punishment, also known as the ‘Theory of Vengeance’, is the most basic,
yet inconsiderate theory of inflicting a penal sentence over a perpetrator. It is based on a very small
doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. Now, if
looked at from the perspective of very serious and heinous offences, like the Delhi gang rape case,
people may feel that it is better to inflict such retributive punishments, so as to ensure that a
deterrent is set across the society, in order to prevent such crimes in the near future.

Two very important doctrines of retributive theory as follows:-

a) Doctrine of Societal Personification:-

To be put simply, it means that the society, whenever a heinous crime of an extreme form is
committed, assumes the form of a natural person and behaves in a collective manner so as to get
justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case, etc

b) Doctrine of Correctional Vengeance:- It may be stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful (as
painful as the original act, or even more) punishments upon the victim for creating a deterrent, it is
said to exhibit correctional vengeance.’

Retributive Theory and the Hindu Scriptures:

Ramayana- In the Ramayana the whole story began from retribution itself. Lakshmana cut the nose
of Raavan’s sister, because of which he kidnapped Sita. In order to rescue her and also to avenge her
kidnapping, Ram went to kill Raavan. But, the major difference between the application of the
retributive punishment between the two was that Raavan did not even give Ram a chance to repent
for his younger brother’s act, but, Ram gave several chances to Raavan to correct his act.

Mahabharata–Mahabharata, especially Shrimad Bhagvad Geeta, talks about the time when the
retributive mode should be used. As we all know that Arjun was about to leave the battlefield as he
was too scared to go against his own relatives, it was Krishna who said that ‘when all other paths
close down, only then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.

Case Laws:

a) Nirbhaya Judgement–In this Judgement, the Supreme Court sentenced four out of six felons
involved in the extremely heinous Delhi gang rape case to death, much to the delight of the society,
as they had committed an extremely gruesome, as well as morally unimaginable crime.

b) Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had already
undergone a six month imprisonment term, before being officially convicted by the Court. The Court
held that since the convict had been convicted and also, the required ‘blemish’ had also been
imposed upon him, it was not necessary to sentence him again in the name of ‘retributive
punishment’, as it would inflict a very big loss upon the family as well.

c) Sri Ashim Dutta Alias Nilu vs State of West Bengal–it was held that the civilization and the societies
are progressing rapidly. There is advancement of science and technology. The literate people and the
experts in different branches of knowledge started thinking in a different way. Eye for an eye, and
tooth for a tooth are no more considered as the correct approach towards the criminals. Such
principle may perpetuate the rule of the Jungle but cannot ensure the rule of law.

Pros and Cons:

Pros

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.

3. Instils the feeling of trust within the society, towards the judiciary.

Cons

1. Sometimes, may become disproportionate with the seriousness of the crime.

2. Society develops feelings of vengeance and destructive tendencies follow.

3.The State may become autocratic in its functioning, using the punishment to

torment people.

Deterrent Theory of Punishment

In the Deterrent Principle of Deterrence, the term "DETER" signifies "to desist from any
transgression." The fundamental purpose of this idea is to "deter" or prevent future suspects from
committing or repeating the same crime. As a result, the goal is to deter criminality by instilling fear,
as well as to set a precedent for the entire society by punishing the culprit.

According to this hypothesis, if someone commits a crime and receives a severe punishment, the
people in society will become aware of the severity of the punishments for such crimes, and as a
result of this fear in the minds of the people in society, they will refrain from committing any type of
crime.
For a clearer explanation, we may conclude, “The man is imprisoned not just because he committed
a crime, but also to ensure that the crime is not committed again.” Burnett, J, said it best as he said
to a prisoner: The deterrence principle seeks to control the crime rate in society by letting future
offenders know that it does not pay to commit a crime.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The sociological
school creates a relationship between society and law. It indicates law to be a social phenomenon,
with a direct and/or indirect connection to society.

The concept of deterrent theory was established by Thomas Hobbes (1588-1678), Cesare Beccaria
(1738-1794), Jeremy Bentham (1748-1832).

According to J. Bentham if the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he would have purchased exemption from one evil at the expense of another.

Preventive Theory

The goal of the deterrence prevention concept is to keep a criminal away from committing another
crime. It is based on the premise that criminals must be kept out of a culture. Depending on the
circumstances, this might be achieved by executing the culprit, imprisoning him, or suspending his
driver's license.

As a result, the preventive concept aims to deter the offender from immediately committing a crime.
The incapacitation is directed at the offender, and the deterrent is achieved by differentiating the
criminal from the victim and potential victim, thereby removing any potential for a crime to be
committed. Whether the custody is permanent or the defendant is through a thorough rehabilitation
programme, detention will not prevent, but rather delay, violence.

Case law

In Dr. Jacob George Vs. State of Kerala, the Supreme Court declared that the goal of punishment
should be punitive, reformative, preventative, retributive, and compensating. Favoring one theory
over the other is not a sound punishment strategy. Depending on the merits of the situation, each
principle of retribution should be used alone or in combination. It is commonly stated, "Every saint
has a past, and every sinner has a future." Because criminals are an essential component of society, it
is also the responsibility of society to develop and rectify them so that they can rejoin society as
active members. Since crime prevention is a major goal of both culture and legislation, none should
be overlooked.

Surjit Singh Vs. State of Punjab: In this case, one of the defendants, a police officer, attacked the
deceased's home with the aim to rape him, but was stopped when the deceased's sons yelled for
help. Another police officer's accomplice advised killing the corpse to get rid of the evidence. The
accused was found guilty under section 450 of the Indian Criminal Code.

Reformative Theory
A hypothesis underpins the Reformative Theory. The goal of discipline, should be to alter the crook
through an individualization method. It is based on the humanistic principle that an offender,
whether or not he does harm, should remain an individual.

During his or her confinement, an endeavour should be made to change him or her in this way. The
order's goal should be to establish a moral differentiation within the responsible body. He should be
required to engage in some form of craftsmanship or trade while his incarceration in order to be able
to restart his life following his release.

The goal of this disciplinary concept is to get the convict to concentrate on his bad behaviour. The
fundamental reason for this is because parole and probation are widely regarded as existing methods
for rehabilitating convicts all throughout the world. As a result, proponents of this idea argue that
incarceration should be justified for reasons other than isolating hoodlums from society and
murdering them.

Probation, parole, a conditional sentence, exhortation, and pardon are only a few of the specific
reformative disciplinary procedures used to prosecute people who have been convicted based on
their mental traits. Reformative measures have proven to be helpful in the cases of adolescent
misbehaviour, first-time wrongdoers, and women. The reformative disciplinary strategy generally
works successfully in sex situations. The reformative hypothesis has gained popularity in recent
years.

Compensatory Theory

The fundamental purpose of criminal law is to punish the criminal and/or to assist him in reforming
and recovering by utilising all available resources and sympathy from the courts and other
governmental and non-governmental groups. It must be ensured that criminals are adequately
punished for the crimes they have done, as well as the harassment they have inflicted on the victim,
their family, and their property. Victims of violent crime will be compensated for a variety of reasons,
including:

An offender who has injured a person (or a group of people) or property must repay the victim for
the harm he or she has experienced. A state that has failed to safeguard its citizens must be
reimbursed for the harm they have suffered. Compensation is the core of deterrence, reformative,
and necessary retributive punishment.

Case law

The Supreme Court decided in the landmark case of DK Basu Vs. State of West Bengal that a victim
who is under the protection of the state has every right to compensation if a state servant has
infringed her Right to Life, which is protected under Article 21 of the Constitution.

In State of Gujarat and Anr. Vs. Hon'ble High Court of Gujarat, when the victim(s) of crime or his
family members might be rewarded from the criminal's income earned in jail." The state should
enact substantial legislation regarding the payment of reparation to crime victims, according to the
Court.

Stages of Crime
A crime is defined as the commission of an act that is prohibited by law, or an omission of an act that
is obligated by the law. In other words, crime may be defined as the disobedience of law. Another
important aspect of a crime is that it affects the public interest, rather than the rights of a single
individual, which shall be a part of civil law.

In India, criminal law is operated through substantive as well as procedural law. The substantive law
includes the Indian Penal Code, 1860 (the Code), and the procedural law includes the Code of
Criminal Procedure, 1973 (Cr.P.C.). These laws implicitly and also various cases have enunciated that
in the commission of a crime, there exist four stages. The same forms the scope of the present article
and has been discussed hereafter.

Stages of crime

The stages of crime or elements of a crime include intention, preparation, attempt and
accomplishment. The constitution of a crime includes all the elements. Some of these elements are
even punishable before the accomplishment of the crime. All the stages can be explained further as
follows:

Intention

The fundamental elements of a crime are ‘mens rea’ and ‘actus reus’, the former being the intention
to commit a crime and the latter being the act done in furtherance of the intention. The criminal
liability of a person shall be decided only when he or she has a mala fide intention. It is the direction
of conduct towards the objects chosen upon considering the motive which suggests the choice. Mere
intention shall not constitute a crime, as it is almost impossible to know the intentions of a person.
As the famous saying goes “the devil himself knoweth not the intention of a man”. Since it is hard to
know the intentions of a man, a criminal liability at this stage cannot be drawn.

Mens rea

Mens rea literally means guilty mind. This basically implies that a person committing the crime is
mindful of his/her actions and knows that accomplishment of that act would result in a crime. To
simplify, the intention of the person committing a crime should be mala fide. Further, mens rea can
be further divided into four levels depending upon the degree of intent of committing the crime.
These four levels are:

1. Negligence: This is the least and in fact the mildest form of mens rea where the person is negligent
of his/her actions and does not ensure reasonable care in his/her act/omission.

2. Recklessness(लापरवाही): This is of a slightly higher amplitude than negligence where the person
can anticipate the crime which may arise out of the act/omission but did not expect or intended the
same and acts negligently.

3. Knowledge: The third level is knowledge where the person is associated with the risks that may
occur on his act/omission and still continues with such act/omission. Here, he/she is not negligent.

4. Intent: This is of the highest amplitude where the person intentionally carries out an act or omits
something in order to commit the crime.

Actus reus

Actus reus is the act or omission on part of the person which causes a crime and involves some
physical activity. It is imperative to note that not just an act but an omission can also be a crime. For
example, non-payment of taxes or maintenance is a crime.
Preparation

The next stage of a crime is preparation. It can be understood as an act in furtherance of the
malafide intention of a person. It is an act that shall be a means to the attempt and accomplishment
of the crime. In the previous illustration, if A purchases a weapon legally and carries it with himself, it
shall amount to the preparation of the crime.

Reasons why preparation is not punishable

The general rule under the law is that the preparation of a crime shall not be punishable. The reason
behind the general rule is that it is nearly impossible to prove that the accused made the preparation
to execute the crime. Apart from this, the test of locus poenitentiae is applied in cases where the
culpability of preparation is in question. The test provides that a person has an opportunity to
withdraw from his act before he actually commits the intended crime. The test has been further
explained in the subsequent sections.

Exceptions in which criminal liability may be imposed

Exceptions to the general rule that a person cannot be held criminally liable for the preparation of an
act have been provided under the Code. These exceptions include:

1. Preparation to wage a war against the Government of India – Section 122 of the Code provides
that collection of arms, ammunition, or associating with people with an intention to wage a war
against the State shall be a punishable offence with imprisonment for a term that may not exceed
ten years, and such the offender shall also be liable for fine.

2. Counterfeiting coins – Section 233, Section 234, and Section 235 of the Code provide the
punishment for counterfeiting any coin, including an Indian coin and the possession of any
counterfeit coin. These provisions also provide punishment for the preparation of producing or using
a counterfeit coin.

3. Manipulation of the weight of the coins – Section 244, Section 246 and Section 247 of the Code
provide the punishment for altering or diminishing the weight of any coin. In these circumstances,
even the preparation to commit such crimes is punishable.

4. Counterfeiting Government stamps – Section 255 of the Code provides that “Whoever
counterfeits, or knowingly performs any part of the process of counterfeiting, any stamp issued by
Government for the purpose of revenue shall be punished with imprisonment for life or with
imprisonment of either description for a term which may extend to ten years, and shall also be liable
to fine.” In addition to this, the provision also criminalises the possession (Section 256) and selling
(Section 257) of counterfeiting Government stamps.

5. Preparation to commit a dacoity – Section 399 of the Code provides that “Whoever makes any
preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.”

6. Possession of forged documents – Section 474 of the Code provides the punishment for the
possession of forged documents. The intention behind the provision is to prevent any type of fraud
that may occur by using such forged documents. These offences are punishable at the stage of
preparation due to the gravity of the outcome of the crime, if committed.

Attempt
There exists a very thin line of distinction between the preparation of a crime and an attempt to
commit the same. It may be defined as an action in furtherance of the intention and preparation of a
person to commit a crime. Thus, an attempt to commit a crime is often termed “preliminary crime”.
An attempt to commit a crime is punishable under the Code. It has been provided under various
provisions for specific crimes. However, in case of the absence of punishment for an attempt to
commit a particular crime, Section 511 of the Code comes into the picture. Some of the specific
provisions of the Code under which an attempt to commit a crime have been enumerated
hereunder:

•Section 121 – Attempt to wage a war;

•Section 131 – Attempt to seduce a soldier, sailor or airman from his duty;

•Section 307 – Attempt to murder;

•Section 308 – Attempt to culpable homicide;

•Section 309 – Attempt to suicide;

•Section 326B – Attempt to throw suicide;

•Section 356 – Attempt to commit theft;

•Section 357 – Attempt to wrongfully confine a person;

•Section 393 – Attempt to commit robbery;

•Section 397 – Robbery or dacoity with an attempt to cause death or grievous hurt;

Circumstances under which attempt becomes impossible

In the 19th century, English law established that an attempt to commit an impossible act shall not be
punishable. Cases of the early 19th century were decided on the notion that an attempt cannot be
made on a crime that cannot be committed. Thus, where a pickpocket thrusts his hand in an empty
pocket of a person, he shall still not be held liable.

However, the courts found the notion to be illogical and unreasonable in the later part of the 19th
century, and hence, overruled the judgements. This was the first time an attempt to commit an
impossible act was made punishable.

Section 511 of the Code particularly provides that any attempt to commit an impossible act is
punishable. The illustrations provided under the provision are indicative of the same. Thus, under the
Indian Penal Code, an attempt to commit an impossible act is punishable.

Difference between preparation and attempt

The difference between the preparation and attempt to commit a crime is a crucial one. It can
determine the criminal liability of a person. The prime difference between the two is the fact that
whether the act that has already been finished during the stages of crime, has an impact on the
victim. If it has an impact, it is considered to be an attempt, otherwise, it is considered to be mere
preparation.

The Courts in various cases have attempted to differentiate between the two through various tests,
which shall be discussed hereunder.

Tests for determining an attempt to commit a crime

•Proximity rule – The proximity rule provides that in cases where the accused accomplishes a series
of acts in furtherance of his intention to commit a crime, the liability shall be decided upon the
proximity with the completion of the Act.

•Locus Poenitentiae – The doctrine of locus poenitentiae provides that where a person withholds
himself from the actual commission of the crime, it would amount to mere preparation. The doctrine
was propounded after analysing that a person has a reasonable opportunity to withdraw himself
from committing the crime.

•Equivocality Test – The Equivocality test states that when an act of a person can prove beyond
reasonable doubt the likeliness of committing the crime, it shall constitute as an attempt to commit
the crime rather than mere preparation.

Accomplishment

The accomplishment of a crime is when an attempt to commit a crime is successfully executed.

Every person shall be liable for the act, offence or crime that he commits or accomplishes. The
provisions of the Code provide for specific punishments for various crimes in the country.

The effective completion of an offence is the last stage of its commission. If the accused is successful
in committing the crime, he will be found guilty of the entire offence. Furthermore, if his endeavour
fails, he will be held responsible.

Satvir Singh v. State of Punjab (2001)

In this case, the appellants were accused of abetting an attempt to commit suicide, which was done
by the wife of the primary appellant. The issue before the court was whether it was whether, in an
episode of an attempt to suicide made by a person due to harassment by another, the person
harassing such person shall be liable for an attempt to abet the commission of suicide. The Court
answered in negative, stating that an attempt to abet shall only be punishable if the said offence has
been committed, hence providing successful abetment. In case the said offence has not been
committed, the abettor shall not be held liable.

State of Madhya Pradesh v. Narayan Singh (1989)

In this case, the Hon’ble Supreme Court held that the commission of an offence involves four stages;
i.e. intention, preparation, attempt and commission. The first two stages of these offences would not
attract culpability, however, the last two stages would attract it. In this case, the respondents were
trying to export fertilisers without a permit from Madhya Pradesh to Maharashtra. Hence, the act
was considered to be an attempt of the offence rather than just preparation.

Unlawful Assembly

Right to Assemble

Article 19 (1)(B) of the Constitution of India 1949, lay down that ‘All citizens shall have right to
assemble peaceably and without arms. That means citizens of India has been given freedom to
assemble and organize a public gathering or even processions on their own will. But this right to
assemble is subject to reasonable restriction by the state in the interest of sovereignty and integrity
of India or public order under clause 3 of Article 19 of the Constitution of India 1949. Thus, an
appropriate authority can prohibit holding up of a public meeting, in a case where they are of the
opinion that doing so is necessary for maintaining public peace and tranquility(शांित).

Dispersal of Unlawful Assembly

In Babulal Parate v. State of Maharashtra[1], the Hon’ble Supreme Court while observing that right
‘to hold public meeting’ and to ‘take out public processions’ vests under Article 19 (1) (b) of the
Constitution of India, stated that:

“Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to
a legislature to pass a law permitting an appropriate authority to take anticipatory action or place
anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining
public order.”

Hence, to put reasonable restriction over the freedom to assemble granted under article 19 (1)(B),
sections 129 and 130 of the Code of Criminal Procedure, 1860 talks about the dispersal of
assemblies.

According to Section 129 of Cr.P.C any unlawful assembly or any assembly of five or more persons
likely to cause a breach of public peace may be dispersed by command of any Executive Magistrate
or an officer incharge of a police station or a police officer, not below the rank of a sub-inspector, by
use of civil force.

According to Section 130 (1) of Cr.P.C, If any such assembly cannot be otherwise dispersed, and if it is
necessary for the public security that it should be dispersed, the Executive Magistrate of the highest
rank who is present may cause it to be dispersed by the armed forces.

After going through above two sections i.e. 129 and 130 of Cr.P.C one obvious question which arises
to the mind of the reader that:

What is an Unlawful Assembly?

An assembly may turn unruly and which may cause injury to person, property or public order. Such
an unruly assembly is termed as ‘Unlawful Assembly.’ In Moti Das v. State of Bihar,[2]it was held that
‘an assembly, which was lawful to start with, became unlawful the moment one of the members
called on the others to assault the victim and his associates, and in response to his invitation all the
members of the assembly started to chase the victim while he was running.’

The term ‘Unlawful Assembly’ has been defined under section 141 of the Indian Penal Code, 1860 as
an assembly of five or more persons having a common object to perform an omission or offence.

Essentials to constitute an Unlawful Assembly[3]

To constitute an unlawful assembly the following 3 conditions must co-exist:-

•There must be an assembly of five persons.

•The assembly must have a common object and

•The common object must be to commit one of the five illegal objects specified in the section.

1) There must be an assembly of five persons

The Supreme Court of India has upheld invariably in a number of cases such as

Dharam Pal Singh v. State of Uttar Pradesh[4] that;

“WHERE ONLY FIVE NAMED PERSONS HAVE BEEN CHARGED FOR CONSTITUTING AN UNLAWFUL
ASSEMBLY, AND ONE OR MORE OF THEM ARE ACQUITTED, THE REMAINING ACCUSED (WHO ARE
LESS THAN FIVE) CANNOT BE CONVICTED AS MEMBERS OF UNLAWFUL ASSEMBLY, UNLESS IT IS
PROVED THAT THE UNLAWFUL ASSEMBLY, BESIDES CONVICTED PERSONS CONSISTED OF SOME
OTHER PERSONS AS WELL WHO WERE NOT IDENTIFIED AND SO COULD NOT BE NAMED.”

2) The assembly must have a common object

The law does not declare a mere assemblage of men, however large it is, as illegal unless it is inspired
by an illegal common object. In the case of Sheikh Yusuf v. Emperor,[5]the court said that; “the
word‘object’ means the purpose or design to do a thing aimed at and that the object must be
‘common’ to the persons who comprise the assembly.” A Common Object is where all or minimum
five member of the assembly possesses and shares one object.

3) The common object must be to commit one of the five illegal objects specified in the section

As stated earlier, an assembly of five or more persons is designated as an unlawful assembly, if the
common object of the persons composing that assembly is any one of the following five objects
declared illegal under section 141, IPC:

1. To overawe Government by criminal force.

2. To resist the execution of law or legal process.

3. To commit an offence.

4. forcible possession or dispossession of any property; or

5. To compel any person to do illegal acts.

i) To overawe government by criminal force: ‘Overawe’ means to create fear in mind of another
person.

That is when a public procession tends to overawe government by the use of force, like what the
Stone Pelters do at parts of Kashmir to protest against the government, such an assembly is termed
as an unlawful assembly.

ii) To resist the execution of law or legal process: Resistance by an assembly to a legal process or
execution of law, for example, executing a court’s judgment or order comes under execution of law,
Hence, restraining the arrest in case of Baba Ram Rahim in Haryana was an illegal act by people and
government decided for dispersion of unlawful assembly under section 144 of the Code of Criminal
Procedure, 1973.

iii) To commit an offence: Where an assembly of 5 or more persons having a common object of
performing an act which is prohibited by law or forms an offence under Indian Penal Code or other
special or Local Laws, such an assembly would be an unlawful assembly.

iv) Forcible possession or dispossession of any property: Where a criminal force is used by an
assembly to deprive a person of enjoyment of the right to way or right to use of water or any other
incorporeal right that the person is enjoying and in possession of. Or to obtain possession of any
property or to impose such rights, the above acts are prohibited under clause 4 of section 141 of the
Indian Penal Code, 1860.
v) To compel any person to do illegal acts: if assembly by using criminal force on others compel them
to perform an illegal act than that assembly would be an unlawful assembly.

Punishment for Unlawful Assembly

i) Under Section 143 of I.P.C. whoever is a member of an unlawful assembly shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine, or with
both.

ii) Under Section 144 of I.P.C. whoever joins unlawful assembly armed with a deadly weapon which is
likely to cause death; shall be punished with imprisonment for two years, or fine or both.

iii) Under Section 145 of I.P.C. whoever joins or continue to be in unlawful assembly, knowing it has
been commanded to disperse, shall be punished with imprisonment for 2 years, or fine, or both.

iv) Under Section 149 of I.P.C. where an assembly commits an offence than every member of that
unlawful assembly, who knew such offence is likely to be committed, will be guilty of that offence.
And be punished for the term same as for the offence.