PUNISHMENTS (Section 53-75)
Under the criminal justice system, a person is considered innocent unless proven guilty. And if a person is convicted for an offence he committed, punishment is the final process of the criminal jurisprudence system. Though, punishment is the suffering in person or property inflicted by the society on the offender for violating certain norms and rules of the society. Rules are made for the security and preservation and the infringement of such will resulted in punishment imposed by an authority constituted by the legal system. In order to convict a person it is necessary to prove beyond reasonable doubt i.e the evidence in support of conviction of an offender must be proven beyond reasonable doubt.
The punishment shall be awarded within the maximum limits fixed by the code, i.e be awarded in the discretion of the court. While sentencing an accused the two aspects have to be borne in mind i.e the heinousness or seriousness of the crime and the circumstances under which the accused has committed the crime.
Under chapter 3 of the Indian Penal Code, 1860 from (section 53-75) it lays down the provision regarding the types of punishment, the period of punishment, the commutation of punishment and so on. In a nutshell this chapter wholly talks about the detailed provision of punishment under IPC.
These are listed below :
Section 53 : The punishments to which the offender are liable under the provisions of this code :
This section talks about the types of punishments and the punishment to which an offender is liable if he committed an offence under this code. Generally, there are five types of punishments i.e
Death sentence (for offence under sections 121,132,194,195-A,302,305,307,364-A and 396 of the code).
Life imprisonment
Imprisonment, which is further divided into two - rigorous (with hard labour) and simple imprisonment
Forfeiture of property
Fine
It is not an exhaustive section which means the section is not complete or include everything so far as the kinds of punishments are concerned because some other punishment may be imposed on an accused under some local and special law. These punishments are applicable to offences mentioned under this code only. The court has the power to reduce the quantum of punishments after considering various aspects of the case.
Section 53A : Construction of reference to transportation :
Before 1955, transportation was a kind of punishment given to the offender for wrong doing. After the introduction of this code of 1955, ‘transportation’ as a sentence has been abolished as a punishment.
The transportation means e.g if an accused is sentenced with transportation that means a criminal shall be sent beyond the seas. It was a punishment lesser than death in gravity.
Sub Section 1 : subject to the provision of sub section 2 and 3, if in any other law for a time being in force, instrument,order or any enactment repealed if any reference to ‘transportation for life’ is given it shall be construed/interpret as a reference to ‘imprisonment for life’.
Sub Section 2: If in every case in which a sentence of transportation for a term has been passed before the commencement of the code of criminal procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same time.
Sub Section 3 : if in any other law for the time being in force any reference to transportation for any shorter term shall be deemed to have been omitted (before 1955).
Sub Section 4 : Any reference to ‘transportation’ if it is ‘transportation for life 'it means ‘imprisonment for life’ and if the expression means ‘transportation for any shorter term’ be deemed to have been omitted.
Section 54: Commutation of sentence of death :
In every case in which a sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute /reduce the punishment for any other punishment provided by this code. Thus, this section talks about the act of changing the punishment to one that is less severe.
E.g death penalty commutation to life imprisonment, life imprisonment to rigorous imprisonment, rigorous to simple and so in.
Case law : Shatrughan Chauhan v. Union of India
In this case the court considered the mercy petition of 15 convicts for commutation of death sentence. The court observed that prolonged delay in execution of death sentence, insanity, mental illness/schizophrenia of the convicts are valid criteria. There are no time limits or exhaustive guidelines for disposing mercy petitions and the analysis must be made on an individual case by case basis. If the delay is seen to be unreasonable,unexplained and exorbitant it was a duty of the court to interfere. The court also laid down the standard of treatment to be given to the convicts which include that the convict should not be placed in solitary confinement,provide free legal aid, receive speedy disposal of mercy petition, receive communication of rejection of mercy petition in writing, receive minimum fourteen days notice before execution.
In Mohd. Arif v. Registrar, Supreme Court of India
In this case the court held that judicial review of death penalty cases must mandatorily be heard in open court by a bench of atleast three judges. The court also held that the Supreme Court Rules that allowed applications for reviewto be disposed of by circulation without any oral arguments was unconstitutional in so far the review petition for death penalty is concerned.
Section 55: Commutation of sentence of imprisonment for life :
In every case in which a sentence of imprisonment for life shall have been passed, the appropriate government may, without the consent of the offender, commute the punishment for imprisonment of either description (it may be rigorous or simple imprisonment) for a term not exceeding fourteen years. Thus, in layman language it means where an offender is convicted for an offence and the punishment for such was imprisonment for life, the Government can without the prior consent of the criminal can reduce the punishment so given and it should be less than fourteen years and not beyond.
Section 55A : Definition of ‘appropriate Government’ :
In section 54 and 55 the expression appropriate government means-
In cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the central Government (offences to which the Central government has power then the appropriate government shall be ‘Union Government’).
E.g Delhi,(a union territory) if a person committed a crime in Delhi then the Central Government executive power will extend.
In cases where a sentence (whether of death or not) is for an offence against any law relating to the matter to which the executive power of the State extends, the government of State within which the offender is sentenced (offences to which the State Government has its executive power then the appropriate government shall be State Government).
Section 56 : Omitted
Section 57 : Fraction of terms of Punishment :
In calculating the fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.
The section does not mean that imprisonment for life is confined or ends after twenty years, it simply means that a person will be in imprisonment till his/her natural death. The appropriate government may commute the punishment of life imprisonment to twenty years and after completing the twenty years, the government may or may not allow an accused for his release and an offender cannot plead as his/her right to release.
This section does not intend to mean that imprisonment for life is equal to twenty years. It is only when certain situations exist in IPC, where we have to get to know the fraction of a term of imprisonment and in case of imprisonment for life we cannot do it because we cannot predict the life of a person and so we cannot get the fraction out of it. So, in order to come to an end, IPC itself has come up with a provision that if we need to calculate the fraction of imprisonment for life, then only in such a case we can assume its term to be of 20 years just for the sake of getting a fraction of its term.
Instances like section 511 and 116 of the code, where fractions of terms of punishment have to be calculated.
E.g A makes an attempt to steal jewels by breaking open a box, and finds after opening the box, that there is no jewel in it. He has done acts towards the commission of theft.and therefore is guilty under the section. The punishment for theft is three years or with fine or both. Thus in this illustration A shall be punished for 1 and half years imprisonment and fine.
E.g A makes an attempt to pick a pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt as a consequence of Z having nothing in his pocket. A is guilty.
Section 58 : Omitted
Section 59 : Omitted
Section 60 : Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple :
Thus, this section says that where an offence is punishable with imprisonment of either description (simple or rigorous), it is at the discretion of the competent court to decide whether to give rigorous imprisonment or simple imprisonment or partly rigorous and partly simple imprisonment.
E,g section 352 : Punishment for voluntarily causing grievous hurt
whoever , except in the case provided for by section 335, voluntarily causing grievous hurt, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.
So, in this section the maximum term is 7 years. Let assume that the offender gets a sentence of 7 years then it may be 7 years of rigorous imprisonment or 7 years of simple imprisonment or 7 years of simple imprisonment or 4 years of rigorous and 3 years of simple imprisonment. So it is upon the discretion of the court to decide, which depends on facts of the case.
Section 61 : Omitted
Section 62 : Omitted
Section 63 : Amount of fine :
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.
While imposing fine the courts have kept in mind many important factors including the nature of the offence committed, capacity of the offender to pay and usefulness of the imposition of fine. A heavy fine may be imposed where there has been a conspiracy like smuggling a large quantity of gold into India. But a beggar held guilty of theft of a scooter could be let off with a fine and the imprisonment already undergone, as he may have a family to maintain. This is the reason why the word ‘shall not be excessive’ has been used in this section.
Section 64 : Sentence of imprisonment for non payment of fine :
This section applies in such cases where the offender is punishable with imprisonment as well as fine, or with fine only and in cases where offender suffers the imprisonment but default in payment of fine then the competent court has power to award an additional imprisonment to such an offender. But the term of such extra imprisonment will be different from regular or actual imprisonment and it shall not be included under regular imprisonment also.
The word ‘as well as’ in this section indicates that the section applies where an offence is punishable with imprisonment and also to such cases where it is punishable with fine. And it also applies to such cases where an offence is punishable with imprisonment or fine or with fine only.
Section 65 : Limit to imprisonment for non payment of fine, when imprisonment and fine awardable :
This section applies to the cases where the offender is punishable with imprisonment as well as fine and in case where the offender fails to pay the fine then the term for which the court directs the offender to the imprisoned in default of payment shall not exceeds one fourth of the term of imprisonment which is the maximum fixed for he offence.
E,g let's take section 379, so let's assume if the convict was awarded a sentence of 3 years of imprisonment and fine under section 379 for committing a theft and he defaults to pay fine the he cannot be imprisoned in default of payment of fine for more than 274 days of imprisonment as in this case. Section 379 provides that maximum punishment for theft is 3 years and it's one fourth term will be 274 days at the maximum as per the section 65 which can be awarded in default of payment.
Section 66 : Description of imprisonment for non payment of fine :
The imprisonment which the court sentenced in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence. This section applies in such cases where the sentence is imprisonment and fine, both. So, when an offender is sentenced with imprisonment and fine but failed to make a payment then the court on its discretion can sentence an accused for imprisonment which may be of any description i.e either simple or rigorous.
And in cases where an offence for which the punishment is simple imprisonment and fine, the imprisonment for the default of payment of fine shall be simple imprisonment only and vice versa rigorous imprisonment.
Section 67 : Imprisonment for non payment of fine, when offence punishable with fine only
The section says that if an offence for which the punishment is fine only and for the same offender fails to make payment then the court directs the offender to be imprisoned not exceeding two months if the amount of fine shall not exceed fifty rupees, and when the amount shall not exceed one hundred rupees then for any term which shall not exceed four months, and if the amount is more than hundred rupees then the term shall not exceeds six months.
Section 125 of crpc which talks about maintenance of wives,children and parents. If a person fails to provide maintenance to the above person or fails to comply with the order then the Court may sentence such person with a simple imprisonment because the person was imprisoned for non-payment.
Section 68 : Imprisonment to terminate on payment of fine
The imprisonment which is imposed in default in payment of fine shall terminate whenever that fine is either paid or levied by process of law.
E.g suppose if a person is imprisoned for 3 years and with a fine of rupees 5000 and in case an offender fails to pay the amount then additional 3 months imprisonment shall be imposed. And if the offender who suffers the 3 years imprisonment and fails to make a payment he shall then be imprisoned for a further 3 months period. As per this section it says during the period of 3 months, if an offender pays the amount imposed, then the sentence will be considered as end from the day on which the fine has been paid or by any process of law.
Section 69 : Termination of imprisonment on payment of proportional part of fine
If before the expiration of the term of imprisonment fixed in default in 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.
Suppose, if a person is sentenced to imprisonment and with a 1000 rupees fine also and if in default of such payment the offender shall further imprisonment for 4 months. And if the offender already suffered the actual imprisonment (not for default of payment)and the additional 4 months imprisonment if during that period, suppose after 20 days of additional imprisonment if the offender pays 750 rupees he shall be discharged after the expiry of one month and not on the day of payment.
Section 70 : Fine leviable within six years or during imprisonment, - death not to discharge property from liability
The section provides the time period for the recovery of a fine from an offender who is sentenced to imprisonment and fine. There are two categories mentioned under this section.
The first one is fine leviable within six years from the date on which the punishment is pronounced. Suppose, the court sentenced a person to imprisonment for 3 years with a fine of 5000 rupees and such amount will be recovered from an offender within a period of six years on which the punishment is pronounced. But if the punishment is more than 6 years then in such cases the fine can be recovered within the period of such punishment from the date on which the punishment is pronounced and not the day on which an appeal is dismissed. It is not that the court will recover the fine after expiry of the actual imprisonment, it is on the discretion of the court that after a one month of actual imprisonment can recover the fine from an offender. Section 421 of the CrPC says if a person does not pay the fine then the court can issue a warrant for the recovery of fine or by sale of property and if the offender suffered the punishment in default of payment then the court cannot issue a warrant against such offender. And in some cases the court can issue a warrant even after the offender serves the sentence for default of payment as compensation to the victim. E.g in rape cases.
The second category is the death of the offender. Suppose an offender dies during the sentence of imprisonment then such liability of fine will be recovered from the property to which he is legally liable for his debts.
Section 71 : Limit of punishment of offence made up of several offence
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 such offences, unless it is so expressly provided or in layman language it says -
where an offender committed an offence in parts and any of part itself is an offence only for the one part an offender shall be punished unless it is expressly provided. Same offence with different parts.
E.g one person kidnap a girl and locked her in a room for two days and raped her, later killed her. Here, the offences committed in different parts like kidnapping,illegal confinement,rape and murder. There are different offences committed by an offender. In order to clear the confusion of section 71 one must understand with an example - A and B got into a fight, A stabbed four times to B, 2 times on the stomach and another 2 on his head. B save after taking to the hospital. Here, A was charged with section 307 (Attempt to murder) and the offence was committed in parts i.e stabbing B four times, and each part is an offence attempted to commit murder. So, as per this section A will be punished for only one part. Suppose, the punishment for an attempted to commit a murder is seven years then A will not sentenced to 7 years for each part. And where another person (C) comes to save B from stabbing and A stabs C also then in such cases B will charge differently for each person he stabbed i.e B and C. But it is at the court discretion to impose the punishment whether concurrently or consecutively.
Another example is section 396 of IPC i.e dacaoity with murder, here an offender will not punished for dacoity and murder differntly.
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 punished with a more severe punishment than the court which tries him could award for any one of such offences.
Where an offence comes within two or more separate laws then the court will punish the offender with maximum punishment of any of one offence.
E.g section 411 of IPC, which says if you receive anything which you know to be a stolen property and in section 414 of IPC, which provides for assisting in concealment of stolen property, in such cases an offender will be punished for only one offence with a maximum punishment.
This section will apply to such offences which fall within the same law or only one law and if the offence falls within the definition of two different acts e.g IPC and POCSO Act then this section will not come into picture.
And where several acts have been done and any one or more than one part is itself an offence and if combined a different offence constitutes then the offender shall be punished with maximum one offence.
E.g section 323 of IPC (Punishment for voluntarily causing hurt) and section 392 (Punishment for robbery), these are two different offences and if combined a different offence will come out i.e section 394 of IPC which says voluntarily causing hurt while committing robbery.
Section 72 : Punishment of person guilty of one several offences, the judgment stating that it is doubtful of which
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 of 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.
Such a situation will exist when facts of the case are difficult to decide the offence committed by an offender e.g 307 of IPC (attempt to murder) and section 308 (attempt to commit culpable homicide), then in such cases the lowest punishment will be fiven to an offender and if we talk about section 307 and 308, there is a lesser punishment in section 308.
Section 73 : Solitary Confinement
The term solitary confinement means the isolation of a prisoner in a separate cell or isolated from any kind of intercourse with the outside world as a punishment. The section says when an offender shall be punished with solitary confinement and for what offences and for what time period.
When the court has discretion to sentence a person to rigorous imprisonment for an offence then in such cases the offender shall be kept in solitary confinement for any portion or 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 exceed six months and shall not exceed one year,
A time not exceeding three months if the term of imprisonment exceeds one year.
An offender shall not be kept in solitary confinement if the description of imprisonment is simple, only for such offences for which the punishment is rigorous imprisonment then the court can keep an offender in solitary confinement.
Section 74 : Limit of Solitary Confinement
While executing solitary confinement, such confinement shall in no case exceed 14 days at a time, there must be intervals between the periods of solitary confinement.
And when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such period (maximum 7 days solitary confinement).
Section 75 : Enhanced punishment for certain offences under chapter 12 or chapter 17 after previous conviction
This section talks about the repeated offences i.e when you commit an offence repeatedly. The section will apply only in such cases where an offence committed is within the chapter 12 (sec. 230-263A deals with offences relating to coin and Government Stamps) or Chapter 17 (sec. 378-462 deals with offences against property) of IPC.
Suppose, a person committed an offence under section 235 and later he committed another offence but it is not necessary that the person should commit the subsequent offence under same section only i.e section 235, if a person had committed an offence under any section of the above two mentioned chapter then section 75 will come into picture.
Under chapter 12 and 17 those offences for which the punishment is 3 years or more than this then section 75 will apply. And after fulfilment of this condition if a person committed a subsequent offence (same condition will apply) under the above mentioned two chapters then it is at the discretion of the court to sentence a person to imprisonment for life or to imprisonment of either description for a term which may extend to ten years.
No comments:
Post a Comment