DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

2021 - 22

                                     SUBJECT: Indian Penal Code 

      

 Topic – THEORIES OF PUNISHMENT AND PUNISHMENT UNDER IPC

Submitted To:                                         Submitted By:

 

Dr. Malay Pandey                           Nisha Singh

Associate Professor (law) Roll No. 190101099

Dr. RMLNLU B.A. LL.B. (Hons.)- 4th sem.

                                                            

                                                   
 

                                     

Acknowledgement

I would like to express my gratitude towards all those whose help and constant support the
project would not have reached its current facet. Foremost I would like to thank Dr. Malay
Pandey for his kind guidance and for quenching my queries on many doubts and technicalities
which I came up with during the making of this project. I would take advantage of this situation
to thank him for providing me with such an enriching opportunity to work and research on this
topic. This project would not have seen the light of the day without the constant direction and
guidance of my parents and guardians to whom I owe a lot. I would also like to use this
opportunity to thank my seniors for helping me out with the nitty-gritty of formatting.

 I would also like to thank all of my friends who aided me along the way. I must also extend my
gratitude to the library and library personnel who provided me with research material and good
books to work upon and the distinguished authors, jurists, and journals for providing in the
public domain such invaluable information.

Thanking you

Nisha Singh

TABLE OF CONTENT
 ● Jurisprudential Outlook
● Some aspects of Punishment

● Theories of punishment

● Sentencing Policy

● Conclusion
● Bibliography

TABLE OF CASES
Maru Ram V. Union of India  (1981)1 SCC 107

State of Punjab V. Prem Sagar

(2008)7 SCC 550

Gulab Singh V. Yuvraj Singh 1995 Supp (4) SCC 623

Surjit Singh v. State of Punjab AIR (1967) 1214 

 
Dr. Jacob George v. State of Kerala
AIR 1993 Ker 75

Mohd. Giasuddin v. State of A.P .,(1977)3 SCC 287

Jurisprudential Outlook
Under the sanction of the law, punishment is retribution on the offender to the suffering face to
face or property which is inflicted by the offender. Punishment is that the way through which an
offender are often stopped from doing offences against person, property, and government.
Therefore, punishments are often of varied types like deterrent, rehabilitative, restorative and
retributive. The concept of punishment as being the sole possible sort of reparation for serious
human rights violations, as a way of satisfying victims, or maybe because the victims’ right, may
be a significant challenge to the normal understanding of legal code . First, it implies ceasing to
imagine legal code as a tool for group action , designed originally to guard legal interests for
peaceful social coexistence; rather, seeing it as a mechanism designed for the reparation of
victims’ rights.5 This involves abandoning the thought of legal code as ius puniendi, as a right of
the state, and instead seeing it as a state obligation, officium puniendi. In State of Punjab V.
Prem Sagar1, The Supreme Court stated the aspects of sentencing in India.

S.B. Sinha J was of the view that Indian Judicial System has not been able to develop legal
principles as regards sentencing.

.Under the Indian legal code , the sentencing policy is measured on the subsequent factors:

1. The gravity of the violation;

2. The seriousness of the crime; and
3. Its general effect upon public tranquillity.

There is a correlation between measures of punishment and therefore the measure of guilt.
Accordingly, the sentencing policy during a particular offence is standardized.

Some aspects of Punishment

● Need of Punishment
Negative reward
Maintain supremacy of the law

1
(2008)7 SCC 550
● Ends of Punishment
Greatest happiness of the best number of people – Consequentialist approach
Justice
Reformation of the criminal

Theories of punishment

For safe, orderly, peaceful and prosperous society to exist and flourish – the subsequent
tools of theory are found to be good guides:
1. Deterrent Theory
2. Preventive Theory
3. Retributive Theory
4. Reformative Theory
● Sentencing policy

Deterrent Theory-

In Deterrent theory of punishment, the term “DETER” means to abstain from doing any
wrongful act. the most aim of this theory is to “deter” (to prevent) the criminals from
attempting any crime or repeating an equivalent crime in future. So, it states that
deterring crime by creating a fear is that the objective; to line or establish an example for
the individuals or the entire society by punishing the criminal. That simply means,
consistent with this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it's going to result maybe that the people of the society are
going to be or could also be conscious of the severe punishments surely sorts of crimes
and since of this fear within the minds of the people of the society, the people may stop
from committing any quite crime or wrongful act. Here I used the phrase “may stop”
rather than “will stop” meaning, there's a probability of committing any crime or
repeating an equivalent crime.

The deterrent theory of punishment is utilitarian in nature. For a far better understanding
we will say like, ‘The man is punished not only because he has done a wrongful act, but
also so as to make sure the crime might not be committed.’ it's best expressed within the
word of Burnett, J who said to a prisoner:
 “Thou art to be hanged not for having stolen a horse, but so as that other horses might not
be stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a criminal
offence , the deterrent theory hopes to regulate the rate within the society. Protection of
society and deterring the criminal are the avowed object of law and that is required to be
achieved by imposing an appropriate punishment2.

Reformative Theory Of Punishment

“Condemn the Sin, not the Sinner” – Gandhi .

Reformation process is sort of a surgeon operating on a person to get rid of the pain.
it's a craft or skill in bringing back the contaminated and condemned culprits to national
mainstream and civil society, as meaningful citizens.
The object of the punishment according to this theory should be to reform criminals.
Crime is a mental disease which is caused by different anti-social elements. Therefore,
there should be mental cure of criminals instead of awarding them with rigorous
punishments. As held in the case of Maru Ram V. Union of India 3, where it was held that
correctional strategy is integral to social defence which is the final justification for
punishment of the criminal.
Therefore, justice demands that all attending relevant facts should never be ignored while
determining the proper and just sentence. The emphatic denunciation of crime by the
community must be reflected in the punishment.
History of the Theory:
During old events, discipline was retributive reason, where the gangsters were given
classless kind of control. Thereafter, over the section of ages, the meaning of regular
freedoms extended which fundamentally made way for the substitution of Retributive
speculation by Reformatory and Rehabilitative theories. Under the Reformative and
Rehabilitative speculations, the accused are given such constructions for discipline which
would transform them and hold them back from executing such bad behaviors.

The hypothesis of discipline being continued in India with the objective to change the law
breakers instead of repelling them isn't that convincing in shirking of the occasion of

2
State of Karnataka v. Krishnappa
3
(1981)1 SCC 107
 infringement in India. The fundamental thought of law isn't to be static, yet to be dynamic
in nature. At precisely that point the law will have the choice to be effective taking all
things together fields of the overall population.

In modern times, much importance is given to reformation or rehabilitation of criminals,

especially young offenders in whose case this theory has very successfully been applied.
Nineteen accused were charged under Sections 325/149 IPC and sentenced till rising of
court awarded by High Court, was held to be adequate. However, keeping in view the
modern theory of Penology to reform the accused, the court considered it improper to
enhance the sentence and send all persons to jail. However, they were asked to pay Rs.
2000 to the complainant party.4

This theory has, however, failed in cases of professional and habitual offenders.5

Preventive Theory of punishment
Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals.
Main object of the preventive theory is transforming the criminal, either permanently or
temporarily. Under this theory the criminals are punished by death sentence or life imprisonment
etc. 

This has also been called “Theory of disablement” as it aims at preventing the crime by disabling
the criminal. In order to prevent the repetition of the crime the offenders are punished with death,
imprisonment for life or transportation of life. For example, a murder is committed by A, and he
is punished. Here A is punished not for having committed the murder but in order that no further
murder is committed. This theory has been criticized by many writers on the ground that
prevention of crime can also be done by reforming the behavior of criminals. The infliction of
harsh punishment is a relic of past and regressive time6.

Philosophical View of Preventive Theory:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature. Philosophy of preventive theory affirms that the
preventive theory serves as an effective deterrent and also a successful preventive theory
depends on the factors of promptness. The profounder of this theory held that the aim of
punishment is to prevent the crimes. The crimes can be prevented when the criminal and his
notorious activities are checked.

4
Gulab Singh V. Yuvraj Singh, 1995 Supp (4) SCC 623
5
Government in pursuance of this passed certain legislation like the Reformatory School Act, 1897,the Children
ACT, 1960 AND THE PROBATION OF offenders Act,1958
6
Mohd. Giasuddin v. State of A.P.,(1977)3 SCC 287
Case Laws:

Dr. Jacob George v State of Kerala 7: In this case, the Supreme Court held that the aim
of punishment should be deterrent, reformative, preventive, retributive & compensatory.
One theory preferred over the other is not a sound policy of punishment. Each theory of
punishment should be used independently or incorporated on the basis of merit of the
case. It is also stated that “every saint has a past & every sinner has a fortune”. Criminals
are very much a part of the society so it is a responsibility of the society also to reform &
correct them and make them sober citizens of the society. Because the prevention of
crime is the major goal of the society and law, both of which cannot be ignored.
Surjit Singh v State of Punjab 8: In this case, one of the accused, a policeman entered
the house of the deceased with the intention to commit rape but failed to do so as the as
sons of the deceased shouted for help. Another accused suggested the policeman to kill
the deceased. The accused was held liable under section 450 of the Indian Penal
Code. While on the contrary, the death penalty or capital punishment is more of a
temporary form of disablement.

Retributive Theory of punishment

The most classic sort of retributivism springs in Code of Hammurabi’s lex talionis, which stands
for ‘an eye for an eye fixed and a tooth for a tooth’. Most retributivists believe that a guilty
person should suffer pain. Herbert Hart defined retributivism as ‘the application of the pains of
punishment to an offender who is morally guilty’ . it's been commented that retributivism is seen
as making some appeal to ‘moral desirabiltiy’ If a thief intends to steal money from someone,
he's morally liable for an equivalent . and since of this moral responsibility, the thief deserves
punishment.

The core principles of retributivism are desert and proportionality. This theory is based on the
principle of an eye for an eye and a tooth for a tooth. It is based on primitive nature of vengeance
against the wrongdoer. The aim was to assuage the angry sentiments of the victim and the
society. Kant supports this view. The offender should be punished qaccording to the nature of
injury caused by him to the victim. In other words, Punishment should be in proportion to the
injury caused by the accused. This theory does not look to the motive but to the intention in
committing the crime.

According to Salmond ,”To suffer punishment is to pay a debt dure to the law that has been
violated.” In modern times, it has lost much of its efficacy. The Supreme Court has recently laid
down that an eye for an eye approach is neither proper nor desirable. Mandate of Section 354(3)
CrPC does not approve of it.9

7
AIR 1993 Ker 75
8
AIR (1967) 1214
9
Sk. Ishaque v. State of Bihar, (1995)3 SCC 287
he Supreme Court in the Dhananjoy Chatterjee10 case held that appropriate punishment is the
manner in which the courts respond to society’s cry for justice and that justice demands
imposition of punishment befitting the crime to reflect public abhorrence.

It must be noted that retributivist punishment cannot be meted in all cases. The weightage given
to proportionality in the retributive system of justice carries with itself several advantages and
disadvantages. Retributivism ignores the offender’s future conduct or effects punishment can
have on crime rates. However, in many cases (like that of juveniles), one should take into
account the effect of punishment on the accused. Hence, a lenient and reformative system of
punishment should be observed in such cases.

Sentencing Policy
Under the Indian Penal Code, the sentencing policy is measured on the following factors:

● The gravity of the violation;

● The seriousness of the crime; and
● Its general effect upon public tranquillity.

There is a correlation between measures of punishment and the measure of guilt. Accordingly,
the sentencing policy in a particular offence is standardized.

A sentence or its system which does not work properly can undermine respect for law. In order
to deter other potential criminals and to meet social necessity, the imposition of appropriate
punishment is desirable.11 Although it is not possible to formulate any cut and dry formula in this
respect, but object should be see that the crime does not go unpunished and victim of the crime
and society have satisfaction that justice has been done to them.

Aggravating factors cannot be ignore and mitigating circumstances should get due weightage.12
Nature and circumstances of the offence; toafford adequate deterrence to the conduct; and to
protect the public from such crime are certain imposed to reflect the seriousness of the offence;
to afford adequate deterrenceto the conduct; and to protect the public from such crime are certain
factors to be considering its effect on the social order in many cases is in reality a futile
exercise.13

In the case of State of M.P. v. Babulal14, the Supreme Court emphasized the duty of the court to
impose on the person found guilty, the punishment prescribed by law. Cases of Sexual offences

10
Dhananjoy Chatterjee v State of West Bengal (1994)SCR (1) 37
11
Earabhadrappa v. State of Karnataka,(1983) 2 SCC 330
12
Nature and gravity of crime is relevant and not the criminal for awarding sentence.
13
State v. Sanjeev Nanda, (2012) 8 SCC 450
14
(1901) 1 SCC 234
against women should be dealt with sternly and in rape cases heavy punishment must be
awarded.

Further in Siddharama v. State of Karnataka15, the Supreme Court has observed:

Law regulate social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a
cross- cultural conflict here living law must find answes to the new challenges and the courts are
required to mould the sentencing system to meet the challenges.

Conclusion
Thus, we saw the various Theories of Punishments intimately . We understood what are the
guiding principles behind them, how are they different from each other and a few vital Case
Laws concerning an equivalent . However, we'd like to know very clearly that punishment are
some things which should be inflicted very carefully. because the famous saying goes that ‘Let
go of 100 guilty, rather to punish an innocent’, we'd like to know that inflicting a punishment
upon someone changes his mental, physical and social station drastically. it's a really grave
impact upon him and his being. Thus, while administering criminal justice, utter carefulness has
got to be executed, alternatively the very principles of justice would choose a toss.

Bibliography
Books referred: Principles of Criminal Law by K A Pandey sir

CODE OF CRIMINAL PROCEDURE, 1973, Cr.P.C (DAND PRAKRIYA

SANHITA, 1973)

15
(2006) 10 SCC 234
Links referred: https://lawrato.com/indian-kanoon/ipc

https://www.iitk.ac.in/wc/data/IPC_186045.pdf

http://www.legalserviceindia.com/legal/article-1808-theories-of-
punishment.html

http://www.legalserviceindia.com/articles/pun_theo.htm