Imprisonment as a Measure to Safe Society

 

‘An Individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law’

– Martin Luther King’

INTRODUCTION:

Imprisonment means punishing someone on the order by the court of law for their any criminal activity done by them. Under article¹of Indian Constitution of India their rights are void.

In the Indian Penal Code, there are certain sections for capital punishment such as they are as mentioned under nature of crime as follows – rape or gang-rape², murder³, kidnapping for ransom⁴, dacoity with murder⁵ are some of the nature of crime.In such crimes, the IPC also provides imprisonment of death penalty, forfeiture of property and fine as punishments for various crimes. To protect society from such offenders states have adopted policy/strategyto punish such trespassers.Imprisonment is a punishment wherein the accused is confined with prisoner of war camp or prison camp. In Legal System, imprisonment became an important part from the 19^th Century onwards.

 

TYPES:

There are certain types to imprisonment/punishment implemented by Indian Penal Code, 1860⁶. They are as certain death, life imprisonment, forfeiture of property, fine and simple and rigorous imprisonment

o   DEATH –

Another word for death punishment is also known as Capital punishment. Under IPC, 1860 and Code of Criminal Procedure⁷ there are other offences which are punishable by death by the High Court. Such as murder, abetment of suicide by a minor or insane person, or dacoity with murder etc. The court has to record its special reasons while imposing death sentence as to why the court has come to a conclusion. A certain procedure is followed while imposing death sentence, such as

(i)                 The court shall submit proceeding to the High Court and the sentence shall not be sentenced unless a confirmation is given by the High Court.

(ii)               The High Court may order inquiry or for an additional evidence.

(iii)             Until the period allowed no order shall be made for confirmation allowed for preferring an appeal has expired. When confirmation sentence is submitted by the High Court, shall consist of two or more judges and it must be signed by at least two of them.

There are other circumstances where if in case a woman is sentenced to death by the High Court and afterconfirmation of sentence it is found that woman is pregnant then in such case the High Court shall order the execution of the sentence to postponed and if suitable or commute to the imprisonment for life.Death penalty is handed out in cases to as rarest of the rare cases i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver death penalty on the accused. The Indian Supreme Court has stated that cases in which a murder is committed in its extreme state can be put under the purview of rarest of rare cases.

Case Law –

§  Mithu v. State of Punjab (2001) –

In these case, the Supreme Court made decision that the mandatory death punishment is unconstitutional in nature. While on the other hand the consequent legislation for drug and criminal offenses prescribes a mandatory death punishment to such trespasser, the Supreme Court has not cut down the death punishment as unconstitutional. Also in Indian Courts too they have not actually applied the compulsion on death penalty for these crimes. 

§  Bachan Singh v. State of Punjab (1980) –

In these case, the Supreme Court had held that death penalty can only be said to be constitutional when it was applied as an exceptional penalty in the ‘rarest of the rare cases’.

o   FORFEITURE OF PROPERTY –

Forfeiture of Property arises from illegal hunting and trade in The Wildlife (Protection) Amendment Act of 2002 which added a new chapter i.e Chapter VI-A. According to Section 58C, if any individual or associate of persons or trust obtains any property from illegal hunting or wildlife trade, the competent authority shall forfeit that property to the State government.If the competent authority determines that only a portion of the obtained property is proven to be unlawful, the authority shall issue orders to pay a penalty equivalent to the market value of that part of the property in lieu of forfeiture, giving the opportunity to the affected person.When a property is ultimately forfeited by the government as mentioned in Section 58-I, the transfer of such property shall be deemed null and void. By any means if any human knowingly acquires any property in which proceedings are pending it would be punished with imprisonment. The imprisonment could be for about a term of five years and also with a fine to which upto fifty thousand under section 58Y.

When any property held has been forfeited to the State Government or if the person concerned if refuse to pay the fine due under Section 58K (1) within prescribed time, the competent property which may order the surrender who may be in possession of property.When any person fails or refuses to cooperate with an order rendered, the Administrator may take custody of the asset and may use such action as may be appropriate for that reason.

There are certain provisions in the current IPC which provide for forfeiture of property as a punishment:

(i)                 Section 126 – Committing depradation on territories of power at peace with the government of India.

(ii)               Section 127 – Receiving property taken by war or depredation mentioned in section 125 and 126 of IPC.

(iii)             Section 169 – Public servant unlawfully buying or bidding for the property.

Case Law -

§  P.P.Abdulla and another v. Competent authority and others -

The Order passed in pursuance of the said notice is declared as null and void. Therefore the appeal is allowed and the impugned orders of the High Court and the authorities concerned are set aside.

 

o   SIMPLE AND RIGOROUS IMPRISONMENT –

A person sentenced to simple imprisonment will have to do simple works in the prison, whereas, a person facing rigorous imprisonment has to perform hard labour during his/her term.The counsel claimed that Section 302 IPC nowhere defines the term "rigorous imprisonment."Hence in the absence of any such definition, life convicts cannot be subjected to rigorous imprisonment, he contended.The apex court then issued notice to the state for its response

A bench of justices P Sathasivam and RanjanGogoi recently issued notice to the Maharashtra Government on the petition filed by a murder convict Ashok ParsappaKodvan, who had challenged the life sentence awarded to him by a session’s court for the murder of his wife.

The Bombay High Court had affirmed the sentence upon which he filed the appeal through the Supreme Court Legal Services Center (SCLSC).

According to the prosecution the convict had throttled to death his wife on July 13, 2002 at Lamboti Taluka, Solapur district as he reportedly suspected her fidelity.

Senior counsel ParmanandKatara arguing on behalf of the convict submitted that he was not challenging the conviction but wanted the court to determine whether a person sentenced to life was liable for simple imprisonment or rigorous imprisonment.

      Case Law –

§  Gopal VinayakGodse v. The State of Maharashtra and others –

It is a petition under the Constitution⁸in the nature of the habeas corpus claiming to the             petitioner that has served his truth and should be released. In these the Code of criminal Procedure⁹ sections have been implied.

o   LIFE IMPRISONMENT -

Under Code of Criminal Procedure¹⁰, life imprisonment means human entire life in prison to which it is guaranteed under the CrPc. The minimum duration of life imprisonment is upto or of 14 years. 

The Apex Court has also said that its constitution landmark judgement on criterion for imposing death penalty which needs a fresh look as there has been no uniformity in following such principles on what constitutes the rarest of rare cases.

In 1956 life imprisonment finally and statutorily replaced transportation. The underlying framework of Indian law has been changed with the enactment of the Constitution. Rights became reality for prisoners as well as many others in India. However, while important legal protections have been identified for prisoners, life convicts have rarely succeeded on issues which go beyond their individual cases.

Case Law -

§  Muthuramalingam&Ors. v. State, (2016) 8 SCC 313.

A constitution bench of the Supreme Court held that life sentences cannot be imposed consecutively.

§  Bhagirath&Ors vs Delhi Administration on 16 April,1985        

AUTHORED BY: VAISHALI JOSHI                                                                                                                                            

¹Article 21 or 32 of Indian Constitution of India.

²Section 376A, 376AB of IPC

³Section 302 of IPC

⁴Section 364A of IPC

⁵Section 396 of IPC

⁶Section 53 of IPC, 1860

⁷Section 368 of Code of Criminal Procedure

⁸Article 32 of the Constitution

⁹Section 401 of CrPc

¹⁰Article 72 and 161 of CrPc

Image Source: The Economic Times

REFERENCE:

ü  Blog.ipleaders.in

ü  Timesofindia.com

ü  Enwikipedia.org

ü  Indiankanoon.org

ü  Legalbites.in

ü  Legalserviceindia.com

ü  Businessstandard.com

ü  Manputra.in