Introduction
Punishment can be defined as suffering inflicted upon the offender by the Court when he is adjudged guilty under the law. It is penalty for transgression of law. The amount of punishment will vary according to the facts and circumstances of the case. The object of punishment is to protect the society from offenders and deter criminals from committing crimes. It also helps in reforming them and turning them into law-abiding citizens.
Theories of Punishment
Theoris of punishment can be classifed into following categories:-
i. Deterrent theory.
ii. Reformative theory
iii. Preventive theory
iv. Retributive theory.
Deterrent theory - The object of punishment according to this theory is to prevent the wrongdoer from committing a wrong second time as well as setting an example to others who have criminal tendencies. The kind of punishment given under this theroy deters the criminal from engaging in criminal activities again. According to this theory, it has been said that the offender must be made an example for like minded people of the society.
Reformative theory - According to this theory the object of punishment is the reformation of the offender. Punishment is given to educate and reform the offender so that he can lead a good life ahead. This theory is based on the concept that even if the offender commits the crime he does not cease to be a human being.
Preventive theory - This theory emphasizes on prevention of crime. The offenders are disabled from committing crime ass they are awarded punishments like death, life sentence etc. The idea of punishment is similar to that of deterrent theory. It tries to secure non-occurrence of crime.
Retributive theory - This theory is based on the principle of 'eye for an eye' and 'a tooth for a tooth'. This theory believes that the guilty person should suffer pain in the same manner as victim has suffered. This theory gratifies the instinct of revenge or retribution.
Sentencing policy
Section 4 determines the nature of punishment that can be given once the accused is convicted. Awarding approprite sentence is the discretion of the trial court. Supreme Court in Suraj Ram v. State of Rajasthan, AIR 1997 SC 18 held that for deciding just and appropriate sentence aggravating and mitigating factors in the circumstances of the case are to be balanced.
Further, Supreme Court in Deo Narain Mandal v. State fo Uttar Pradesh, AIR 2004 SC 5150 observed that awarding sentences in criminal case is not a mere formality. When the statute has given the court a choice of sentence with maximum and minimum limit then such discretion cannot be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration variety of factors like, nature and gravity of offence, age, health and sex of the accused, manner in which the offence was committed etc. The court should bear in mind the principle of proportionality. The sentence awarded should not be excessively harsh or ridiculosly low.
Supreme Court in Lehna v. State of Haryana, (2002) 3 SCC 76 held that the principle of proportionality between crime and punishment is a principle that serves the foundation of every criminal case. In every case the enormity of crime and the circumstances under which it is committed has to be borne in mind. Before imposing sentence the court has to consider the totality of circumstances which should be appropriate and just.
Classification of punishments in Bhartiya Nyaya Sanhita
Section 4 of BNS classifies the punishment in the following categories:
Punishments - Section 4
i. Death
ii. Imprisonment
iii. Imprisonment for life which is of two kinds
a. Rigorous, that which is with hard labour
b. Simple
iv. Forfeiture of Property
v. Fine
vi. Community Service
Death Sentence
It is the most extreme form of punishment. Under the Bharatiya Nyay Sanhita it is given in the following offences:-
1. In certain cases of rape [Section 65(2), 66, 70(2), 71]
2. Murder [Section 103(1), 103(2), 104]
3. Abetment of suicide of a child or person of unsound mind [Section 107]
4. In circumstances, attempt to murder [Section 109(2)]
5. Terrorist Act [Section 113(2)]
6. Kidnapping for murder or ransom. [Section 140(2)]
7. Waging war against the Government of India [Section 147]
8. Abetting mutiny and it actually being committed [Section 160]
9. Giving or fabricating false evidence upon which an innocent person with intent to procure conviction of capital offences [Section 230(2)]
10. In certain circumstances, threatening any person to give false evidence [Section 232(2)]
11. Dacoity accompanied with murder. [Section 310(3)]
A wide judicial discretion is available in opting for either death sentence or in alternative any other sentence which the law may impose. When the court decides to give death penalty then Section 393(3) of Bharatiya Nagrik Suraksha Sanhita, 2023 provides that the court has to give the 'special reasons' in awaring the death penalty. Another procedural safeguard in this regard is Section 407 of Bharatiya Nagrik Suraksha Sanhita, 2023. It provides that once the Court of Session has awarded death sentence, it will not be executed unless it has been confirmed by the High Court.
Constitutional Validity of death sentence: Constitutionality of death sentence was challenged before Supreme Court in Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947. It was challenged as violative of Article 14, 19 and 21 of the Constitution. Supreme Court upheld the sentence of death as constitutional and held that it would be difficult to hold capital punishment as unreasonable or against public interest.
Subsequently, Supreme Court in Bachan singh v. State of Punjab, AIR 1980 SC 898 by majority judgement reaffirmed the decision in Jagmohan's case. The court held that capital punishment is in public interest. The Court further held that capital punishment should only be given in rarest of rare cases. It should not be awarded in a routine manner. The test of 'Rarest of rare case' depends upon the perception of society and not perception of judge. The relative weight to be given to the aggravating and mitigating circumstances depends upon the fact and circumstances of the particular case.
In Macchi Singh v. State of Punjab, AIR 1983 SC 957 Supreme Court referring to theory of 'rarest of rare case' observed that when community's collective conscience is so shocked that it will expect the holders of the judicial power to inflict death penalty, the court must award death sentence in that case. Court held that life imprisonment is a rule and death sentence is an exception.
In Pappu v. State of Uttar Pradesh, 2022 (3) SCALE 45 Supreme Court held that abhorrent nature of crime alone cannot be the decisive factor for awarding death sentence. Due consideration should also be given to the mitigating factors. When the accused is not shown to be a person having criminal antecedents and is not a hardend criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.
Imprisonment for Life
It is the second most exteme form of punishment in Bharatiya Nyaya Sanhita. Imprisonment for life means imprisonment running through the remaining period of covict's natural life. In Gopal Vinayak Godse v. State, AIR 1961 SC 600, it was observed by the Supreme Court that life imprisonment means an imprisonment that continues till the life of the convict and is nothing less. Accused awarded with life imprisonment has to be detained in jail for the rest of his life. He can be released if the appropriate government passes a separate order remitting the unexpired portion of sentece.
Supreme Court in Md. Munna and Kartik Biswas v. Union of India, (2005) 7 SCC 417 made it clear that imprisonment for life is not 14 years. As regards nature of punishment in case of imprisonment for life. Supreme Court in Md. Munna and Kartik Biswas v. Union of India and others (2005) 7 SCC 417 and KM Nanawati v. State of Maharashtra, AIR 1962 SC 605 held that imprisonment for life means rigoruous imprisonment for life.
Commutation of sentence of death and imprisonment for life
Section 5 empowers the appropriate Government to commute (without the cosent of offender) sentence of death for any other punishment provided in BNS, 2023. This power to commute the sentence is co-extensive with power under Section 474 of BNSS, 2023. It must be noted here that the power under Section 5 is not curtailed by power of President under Article 72 of the Constitution of India. Article 72(3) of the Constitution specifically states that nothing shall effect the power to suspend, remit or commut a sentence of death exercisible by the Governor of a State under any law for the time being in force.
Community service
The punishment of community service has been added in BNS. This kind of punishment was not present in IPC. The term 'Community service' is not defined in BNS, 2023. It is defined in Section 23 of BNSS, 2023. It means the work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.
Punishment of community service will help to reduce the burden in jails. In following offences the punishment of community service is given:-
i. Public servant unlawfully engaging in trade [Section 202]
ii. Non -appearance in response to proclamation under Section 84 of BNSS, 2023 [Section 209]
iii. Attempt to suicide to compel or restrain exercise of lawful power [Section 226]
iv. In certain case of theft [Section 303(2) Proviso]
v. Misconduct in public by drunken person [Section 355]
vi. Defamation [Section 356(2)]
Fine
Section 8(1) provides that 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. In imposing fine regard must be had to the pecuniary circumstances of the accused and the nature and magnitude of the offence. It must be proportionate to the crime.
Sentence for imprisonment for non-payment of fine: Section 8(2) provides that in every case of an offence punishable with imprisonment as well as fine, in which-
i. The offender is sentenced to a fine, whether with or without imprisonment; and
ii. In every case of an 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 direct by 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 communication of a sentence.
Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable; Section 8(3) provides that 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.
Section 8(4) provides that the imprisonment which the Court imposes in default of payment of a fine may be any description to which the offender might have been sentenced for the offence.
Imprisonment for non-payment of fine, when offence punishable with fine only: Section 8(5) provides that if the offence be punishable with fine or community service only:-
1. The imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple; and
2. The term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed the following scale:-
i. For any term not exceeding two months when the amount of the fine shall not exceed five thousand rupees; and
ii. For any term not exceeding four months when the amount shall not exceed ten thousand rupees; and
iii. For any term not exceeding one year in any other case.
Section 8(6)(a) provides that the imprisonment which is imposed in default of payment of fine shall terminate whenever that fine is either paid or levied by process of law. Section 8(6)(b) provides for termination of imprisonment on payment of proportional part of fine.
There is a change in this provision. Since, the concept of community service as a form of punishment has been introduced in BNS, 2023, imprisonment in default of community service has also been added in Section 8(4) and Section 8(5) of BNS, 2023. It was not present in IPC. Under Section 8(5) of BNS, 2023 the limits for default in payment of fine or community service has been changed to the following scales:-
i. Imprisonment not exceeding 2 months - fine not exceeding Rs. 5000/- or community service.
ii. Imprisonment not exceeding 4 months - fine not exceeding Rs 10000/- or community service.
iii. In any other case - Imprisonment not exceeding 1 year.
Limit of punishment of offence made up of several offences:
Section 9 provides that:-
i. 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.
ii. 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
iii. Where several acts, of which one or more that 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.
For example, '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 fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
Solitary confinement
Section 11 provides that if person is convicted of an offence for which under this Sanhita 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. Such solitary confinement shall not exceed three months in the whole, according to the following scale:-
i. A time not exceeding one month if the term of imprisonment shall not exceed six months.
ii. A time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year.
iii. A time not exceeding three months if the term of imprisonment shall exceed one year.
Section 12 provides that in executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time. The intervals between the period of solitary confinement shall not be less that 14 days periods. When the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven 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.
Supreme Court in Sunil Bartra v. Delhi Administration, AIR 1978 SC 1675 observed that solitary confinement is harsh isolation of a prisoner from society of fellow prisoners and it should be imposed only in accordance with fair procedure. In absence of fair procedure the confinement becomes violative of Article 21 of the Constitution.
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