In society there exist different sets of people, some do abide by the law and others flung the law for their evil motive. The person who does any act which is forbidden by natural justice or statutory law commits a crime and it not against that person but against the state at large and thus if a crime is committed it attracts punishment for the commission of such offense so that it should not get repeated. The punishment to have its effect on society is based on the objective it wanted to serve at large. Since a long time, the punishment was based on the various theories of punishment, whichever may be the punishment the prime purpose of giving justice to the society is of utmost importance. Is it only sufficient to punish the criminal? What about the reformation? The compensation to the victim needs to give equal importance. These are the question which will be addressed in due course.
The object of punishment is the prevention of crime, and every punishment is intended to have a double effect, viz. to prevent the person who has committed a crime from repeating the act or omission and to prevent other members of the community from committing similar crimes. It is even stated in MANUSMRITI, “Punishment governs all mankind, punishment alone preserves them from all sides, punishment wakes when all are asleep; the wise therefore consider punishment as the dharma or supreme justice.  Thus, keeping in view the broad object of punishment of criminals, the sentence should bring home to the guilty party the consciousness that the offense committed by him was against his own interest also against the interests of the society of which he happens to be a member.
In State of Punjab v. Prem Sagar, the Hon’ble Supreme Court pointed out the aspects of sentencing in India. S.B. Sinha J had observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing, also, whether the court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts, circumstances, and nature of each case. While awarding a sentence to an offender the purpose of such imposition should necessarily be kept in mind.
Theories of Punishment
The question of imposition of a sentence usually poses a complicated problem which demands a halfway house between different the competing views based on the following theories of punishment:
(a) Deterrent Theory of Punishment 
As per this theory, punishment is mainly awarded to deter people from committing the crime. The objective thus here is to show that final result of crime is never profitable to the offender and as LOCKE observed, to make a crime “an illegal bargain to the offender,” and by doing so, the world at large would learn that crime is a costly way of achieving an end. The emotion of fear i.e. fear psychology here plays an important role as it not only puts a check on a criminal from committing further crimes but also on all other evil-minded. GEORG WILHELM FRIEDRICH HEGEL strongly supported this theory. Protection of society and deterring the criminal are the avowed object of law and that is required to be achieved by imposing an appropriate punishment.
So far as the deterrent theory of punishment is concerned, doubts have been doubts has been raised regarding the real deterrent effect of the principle. A hardened criminal becomes accustomed to the severity of the punishment and deterrence not always prevent him from committing a crime. Sometimes, a long delay in justice is one such cause as public memory is short. When the convict is actually sentenced and executed, people have forgotten the offense that he has committed and on this basis, it is sometimes felt that it has lost its importance. Another aspect is that at times it also fails to affect an ordinary criminal, as very often, a crime is committed in a moment of excitement and if the crime is pre-mediated, the offender commits the crime, knowing fully well, the consequences arising from his act and performs the act because he cannot help but do it.
(b) Preventive Theory
This theory aims at preventing the crime by disabling the criminal. Thus, the theory is even called as “theory of disablement.” In order to prevent the repetition of the crime, the offenders are punished with death, imprisonment, or transportation of life. In past maiming was considered an effective measure of preventing the wrongdoer from committing the same crime in the future by dismembering the offending part of the body.
This theory has been criticized by many writers on the ground that the prevention of crime can also be done by reforming the behavior of the criminal. The infliction of harsh punishment is a relic of past and regressive time.
Relation between Deterrent Theory and Preventive Theory
The deterrent theory basically aims at giving warning to society at large that crime does not pay i.e. to set a lesson unto others along with criminal that ultimate punishment will be inflicted on the criminal, and therefore, crimes need to be shunned. On the other hand, the preventive theory focuses on disabling the criminal from doing further harm. This thus does not act much on the motive of the wrongdoer, but it disables his physical power to commit the offense. 
(c) Reformative Theory
According to the reformative theory, a crime is committed as a result of the conflict between the character and the motive of the criminal. One may commit a crime either because the temptation of the motive is stronger or because the restrained imposed by law is weaker. The deterrent theory, by showing that crime never pays, seeks to act on the main, so that he may not be an easy victim to his own temptation. This theory would consider punishment to be curative or to perform the function of medicine. Crimes are considered a mental disease which is caused by different anti-social elements. Therefore, there should be a mental cure for offenders, and State has to rehabilitate rather than to avenge, and the focus of interest should be individual, and goal should be to salvage him for society. This theory maintains that “you cannot cure by killing”. The reformists argue that if criminals are to be sent to prison in order to be transformed into law-abiding citizens, prisons must be turned into comfortable, dwelling houses. This argument is, however, limited in its application, and it must be remembered that in a country like India, where millions live below the poverty line, it may even act as an encouragement to the commission of crimes.
In modern times, much emphasis has been paid upon reformation or rehabilitation of criminals, especially young offenders in whose case this theory has very successfully been applied. This theory has, however, failed in the case of professional and habitual offenders. Further, reformative treatment is more likely to succeed in educated and orderly societies than in turbulent or under-developed communities.
(d) Retributive Theory
While taking the history of the administration of justice into consideration, it was seen that punishment by the State is a substitute for private vengeance. Retribution basically means that the wrongdoer pays for his wrongdoing since a person who is wronged would like to avenge himself, the State considers it necessary to inflict some pain or injury on the wrongdoer in order to otherwise prevent private vengeance. This theory is based on the principle of an eye for an eye and tooth for a tooth. IMMANUEL KANT supports this view. This theory does not look to the motive but to the intention of committing the crime. According to SALMOND, “To suffer punishment is to pay a debt due to the law that has been violated.”
In modern times, it has lost its efficacy owing to the fact that two wrongs do not really make a right. The theory seems to ignore that if vengeance is the spirit of punishment, violence will be a way of prison life. The Supreme Court has recently laid down that an eye for an eye approach is neither proper nor desirable. The mandate of §354(3) CrPC does not approve of it.
(e) Compensation Theory
According to this theory, the aim of punishment shall not be merely to prevent further crimes, but also to compensate the victim of the crime. It believes that the mainspring of criminality is great and if the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would be dried up. Though this theory oversimplifies the motive of crime as it cannot always be economic, rather involve other complicated motives. In such a case, this theory may neither be workable or effective. Also at times, the economic condition of the offender may be such that compensation may not be available, thus, this theory can only act as a subordinate in the framing a Penal Code. 
From the above discussion, it is lucid that the administration of criminal justice cannot solely rely upon any of the above-mooted theories of punishment. An ideal penal code would be a judicious combination of these various purposes of punishment. The punishment awarded should commensurate with the gravity of the misconduct. The policy which this court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offense committed. Thus, protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate punishment.
[1] Halsbury’s Law of England, Vol. X ( 3rd Edn.) 487.
[2] State of Punjab v. Prem Sagar (2008) 7 SCC 550.
[3] Ibid.
[4] State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
[5] Triveniben v.  State of Gujarat, (1989) 3 SCC 392.
[6] Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287.
[7] Maru Ram v. Union of India, (1981) 1 SCC 107.
[8] Government in pursuance of this passed certain legislation like the Reformatory School Act, 1897, the Children Act, 1960, and Probation of the Offenders Act, 1958. See, Report of Law Commission (42nd).
[9] Sk. Ishaque v. State of Bihar, (1995) 3 SCC 287.
[10] Sevaka Perumal v. State of T. N., (1991) 3 SCC 471.


Leave a Comment

Your email address will not be published. Required fields are marked *