University of Kashmir

School of Law
Subject: Penology and Victomology

Forms of Punishment: Imprisonment and fine

Submitted to: Dr. Asma Punjabi

Submitted by:-

Name: Sakib Altaf

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Introduction

The practice of awarding punishments is a very vital part of the criminal justice system. The
main aim of punishment is to discourage and/or prevent crime by reforming the criminals and
also by acting as a deterrent for others. The entire purpose of punishment can be justified by a
sociological perspective and it achieves legitimacy by a legal framework. The object of the
punishment, according to Manu, is to govern all mankind; to preserve them; to awaken them
while their guards are asleep. As per Manu, the wise consider the punishment (danda) as the
perfection of justice.

According to H.L.A Hart, there are some important features of a punishment and those are – “It
should inflict some amount of pain and unpleasant consequences to the offender, it should
relate to the offense that the offender has committed, it should be a response for breaking the
social norms, and it should be administered by an authority under the legal framework.”

However, this definition has gathered a lot of criticism as it does not differentiate between the
punishment to be awarded for a criminal wrong and the punishment for a civil wrong.
Earlier the sole object for punishing a delinquent was retribution i.e. to recompense from him
the wrong he has committed or in other words because he deserves to be admonished.
Retribution is revenge for an injury.

Moreover, in earlier times, death penalty was awarded to minor offences like pick pocketing,
but as society evolved, this trend diminished and the forms of punishment also changed with it.
Gradually several other forms of punishments were introduced such as community work, fines
and imprisonment. The cardinal object of punishment today is to protect the society and this
can be attained partly by deterrent, preventive and reformative measures. As specified by
Durkheim, punishment is one of the forms in which a society manifests its admonition of the
crime by a collective conscience.

According to Lord Denning “The punishment inflicted for grave crimes should adequately reflect
the revulsion felt by the great majority of the citizens for them. It is a mistake to consider the
objects of punishment as being deterrent or reformative or preventive or nothing else. The
ultimate justification of any punishment is not that it is deterrent, but that it is the emphatic
denunciation by the community of crime.”
However, due to the absence of a uniform sentencing policy in India, the discretion and
responsibility of awarding proportionate punishment lies with the Judiciary. The Hon’ble
Supreme Court has in a plethora of cases observed that all the pertinent factors and
circumstances should be taken into account while imposing an appropriate sentence. The
fundamental principle that must be adhered to while awarding punishment is that the
punishment must be commensurate and proportionate to the gravity of the offence.

Lord Reid in the case of Director of Public Prosecutions v Ottewell has emphasized on the
hindrances involved in sentencing: “It was rather tentatively suggested by the learned Attorney
General that there is a ‘tariff’ for each kind of offence which is varied upwards or downwards
according to the circumstances of the offence and the character of the accused. Offences of a
particular kind vary so vastly, however, in gravity that there cannot and should not be any
‘normal ‘sentence’, and there is no workable standard by which to judge whether any particular
standard is extended beyond what is ‘normal’.”

Kinds of Punishments

The five different kinds of punishments awarded by the Indian Penal Code, 1860, have been
enumerated under Section 53, and those are:

• Death
• Life imprisonment
• Simple or rigorous imprisonment
• Fine
• Forfeiture of property

The aforementioned punishments can also be awarded together in order to achieve the
intended goal and deter the wrong committed.

General provisions related to punishment for different offences are enumerated in Sections 53
to 75 of IPC. Section 63 to 70 incorporate the provisions related to the imposition of fines and
any alternative sentence, in case fines are not paid. Section 73 and 74 lay down the punishment
of ‘solitary confinement’ and spells out the limitation with regard to its imposition. Section 75
lays down the provision related to certain offences when committed by repeating offenders.
Imprisonment

This is a punishment wherein the liberty of an accused is restrained by confining him in a

Imprisonment was barely known during the primitive age and became a major part of the legal
system only in the 19th century and 20th century. The legislators of the India Penal Code even
envisaged two kinds of imprisonment, Rigorous and Simple.

Hawk said that “It seems clear that any place, whatsoever, wherein a person under a lawful
arrest for a supposed crime is restrained of his liberty, whether stocks at the street, or in the
common goal, or in the house of a constable or private person or the prison of the ordinary is
properly a prison within the statute; for imprisonment is nothing else but a restraint of liberty.”

It may be noteworthy to mention here that Lord Cornwallis had suggested the removal of
mutilation as a punishment and it was finally abolished by the Govt in the year 1791.
Thereafter, the convicts who were sentenced to lose two limbs were sentenced for 14 years in
prison and those who had to lose one were sentenced for 7 years in prison.

Section 54, IPC lays down that if the Government deems it appropriate then it can, without the
consent of the offender commute the punishment earlier awarded to the offender. Further, it
must be noted that the power provided to the President under Article 72(3) or of the Governor
as provided under Article 161 of the Indian Constitution does not curtail the authority of the
concerned government (State or Central) provided under Section 54. Malimath Committee has
recommended that an alternative punishment be added, namely, “imprisonment for life
without commutation or remission”, wherein life imprisonment has been awarded.

Levying of penalty

The imposition of fine or penalty has been prevalent since the inception of tribal system in the
civilization. The Apex court had opined that “payment of fine brings home the sense of
responsibility in a surer fashion than even short terms of imprisonment in some case.” The
Indian Penal Code and several other Indian statutes have affixed levying of fine as an
alternative as well to the main punishment. The Law Commission has nonetheless provided a
caveat to the judges to impose a proportionate penalty since it affects the dependants of the
accused along with him. Therefore the Apex court in the current times has to take cognisance
of the pecuniary status of the offender with respect to the brutality and character of the
offence committed by him. Additionally, it must be noted that forfeiture of money is allied to
sentencing a person by fining him The Indian criminal system has become redundant when it
comes to the pronouncement of punishments due to the absence of a uniform sentencing
guideline.

A glaring example is a case, Arun Garg v State of Punjab, wherein the offender who was found
guilty for committing ‘dowry death’ under Section 304B was imposed with a fine of Rs. 2000
and imprisonment. Later, as a result of an appeal, the High court increased the fine to Rs. 2
Lakhs and interestingly, the Apex court, set aside the fine in entirety.

Conclusion

Time and again various committees like Malimath Committee, Madhav Menon Committee and
several case laws have recommended the inclusion of a comprehensive and uniform guideline
for the pronouncement of punishment i.e. a sentencing policy. This is to ensure that the
judiciary will not exercise unbridled discretion of authority while awarding punishment. In the
absence of such a structured set of guidelines, the ramifications of punishments become highly
arbitrary and harsh. This may lead to undue uncertainty and the indiscriminate imposition of
fine and imprisonment. Further, an amendment must be tendered to any provision where fine
is awarded as an alternative to imprisonment to avoid gross injustice to the victim where the
imposition of imprisonment is appropriate.