Basic Issues

UNIT 3 FORMAL AND INFORMAL

RESPONSES TO CRIME
Structure
3.1 Introduction
3.2 Objectives
3.3 Responses to Crime
3.4 Punitive Response to Crime
3.5 Therapeutic Response to Crime
3.5.1 Prison System
3.5.2 Law of Probation in India
3.6 Preventive Response to Crime
3.7 Summary
3.8 Terminal Questions
3.9 Answers and Hints
3.10 References and Suggested Readings

3.1 INTRODUCTION
Criminal Justice means the criminal law, the criminal procedure, the institutions
of enforcement of the criminal law and the personnel involved in administering
the system. Its objects are prevention and control of crime, maintenance of public
order and peace, protection of the rights of victims as well as persons in conflict
with the law, punishment and rehabilitation of those adjudged guilty of committing
crimes and generally protecting life and property against crime and criminality.
It is considered the primary obligation of the state. Rule of law, democracy,
development and human rights are dependent on the degree of success that the
governments are able to achieve on the criminal justice response. Even national
security is now-a-days increasingly getting linked to the maintenance of internal
security. In view of social defence and national integrity, the need for a coherent,
co-ordinated, long-term policy on criminal justice is obvious and urgent. Crime
control and criminal justice management are the products of a fair, efficient and
effective criminal justice system which is itself the product of multiple sub-
systems such as the police, the prosecution, the judiciary, the prisons and a number
of co-existing social control mechanisms outside the formal state system
(education, family, media etc.) It is important that each of these sub-systems also
requires a desirable degree of efficiency and effectiveness in supporting the
mission of freeing the society from crime.
The object of the criminal justice system is to reform the offender, and to ensure
the security of society and its people by taking steps against the offender. It is
thus a correctional measure. The earlier penological approach held imprisonment,
that is, custodial measures to be the only way to curb crime. But the modern
penological approach has brought in new forms of sentencing whereby the needs
of the community are balanced with the best interests of the accused. Compensation,
parole, release on admonition, probation, imposition of fines, community service
are few such techniques used. In this unit we will discuss role of some formal
and informal methods in the control and prevention of crime.
40
 Formal and Informal
3.2 OBJECTIVES Responses to Crime

After reading this unit, you should be able to:

• assess the objects of criminal justice system;
• examine the punitive mechanism of crime control;
• analyse the role of therapeutic methods in prevention of crime;
• assess the preventive steps for the control of crime;
• describe lacunas of legal system dealing with crime;
• identify role of civil society in crime prevention;
• analyse response of judiciary in humanising criminal justice; and
• devise methods of crime control.

3.3 RESPONSES TO CRIME

Responses to crime have been different at different stages of human civilisation
and even at a given time they have been different in various societies. The attitude
towards crime and criminals at a given time reflects the basic values of that
society. Due to changing attitudes, three types of responses can be found in various
societies. The first is the traditional reaction, of a universal nature which can be
termed as the punitive approach. It regards the criminal as a basically bad and
dangerous person and the object under this approach is to inflict punishment on
the offender in order to protect society from his misdeeds.
The second response to crime is of relatively recent origin. It considers the criminal
as a victim of circumstances and a product of various factors within the criminal
and society. It regards the criminal as a sick person requiring treatment that is
why termed as therapeutic approach. Finally, there is preventive approach, which
instead of focusing attention on particular offender, seeks to eliminate those
conditions which are responsible for crime causation.
It should, however be understood that these approaches /responses to crime are
not mutually exclusive. Not only do they overlap with each other, but sometimes
they may consist as parts of the overall system in a society. These responses to
crime may also be categorised as formal and informal responses to crime.

3.4 PUNITIVE RESPONSE TO CRIME

Punishment
In modern society punishment is the penalty inflicted by the State upon a person
adjudged guilty of crime. Its administration always involves the intention to
produce some kind of pain, which is justified in terms of its assumed values. The
pain intended may be partly physical, as in a whipping, but today most methods
of punishment are designed primarily to cause; mental suffering, as in
imprisonment, where there is loss of freedom, reputation, and perhaps of the
property.
Punishment is defined as authoritative infliction of pain for an offence.1 The
pain should be coercive and is inflicted in the name of the state. It presupposes
1
Fitzgerald,P.J., Criminal Law and Punishment (1962)
41
Basic Issues rules, their violation and the final determination of that is expressed in a
judgment.2

1) Methods of Punishment
Down the ages man has devised a great variety of methods for the punishment of
criminals. The most common ones have been death, physical torture, mutilation,
branding, public humiliation; fines, forfeiture of property, banishment,
transportation, and imprisonment, but each of these had many forms. Thus death
has been accomplished by flaying, crucifixion, beheading, hanging, impaling,
drowning and burning; physical torture by flogging, dismemberment, and
starvation; public humiliation by stocks, pillory, ducking, stools, banks and
branding and imprisonment by confinement in dungeons, galleys, ‘hulks’, jails,
houses of correction, work houses and penitentiaries. A few of these, however,
have survived in modern society, and during the past few decades in western
civilisation the principal methods of punishment have been death, whipping,
transportation, fines, restitution, imprisonment, probation, and parole.

Professor Sutherland has classified the methods of punishment into the four
major categories of financial loss, physical torture, social degradation (by which
he referred to such penalties as confinement in the stocks and the pillory and
branding), and removal from the group (in which he placed death, as well as
exile and imprisonment)3.

2) Purposes of Punishment
The principal purposes of punishment are retribution, deterrence and reformation
(or rehabilitation).

3) Retribution
An eye for an eye would turn the whole world blind- Mahatma Gandhi
The most stringent and harsh of all theories retributive theory believes to end the
crime in itself. This theory underlines the idea of vengeance and revenge rather
than that of social welfare and security. Punishment of the offender provides
some kind solace to the victim or to the family members of the victim of the
crime, who has suffered out of the action of the offender and prevents reprisals
from them to the offender or his family. Retribution is the pain which, it is said,
a criminal deserves to suffer because he had broken the law and hurt someone
else. Having failed in his duties, which every member of the community is
expected to perform, the criminal must pay in pain the debt he owes to society. If
this is not done, say those who argue in favour of retribution, the angry victim of
crime and his relatives and friends who seek revenge may take the law into their
own hands or refuse to cooperate with society in bringing the offender to justice.

Various theories have sought to justify the retributive aspect of punishment in

theological, aesthetic and expiatory grounds. It fulfils a religious mission of
punishing the offender, it re-establishes the social harmony affected by the offence
and the offender’s guilt is washed away through suffering.4

2
Hall, Jerome, The Aims of Criminal Law (1958)
3
Goswami,B.K., A Critical Study of Criminology and Penology (n.d.)
4
Heinrich oppenheimer, The Rationale of Punishment (1913)
42
It is also urged that retribution which the criminal is made to suffer helps to Formal and Informal
Responses to Crime
unify society against crime and criminals. Retribution, therefore, provides not
only a vindication of the criminal law, which is necessary to make criminal law
more than a mere request, but also an opportunity for the public to stand together
against the enemy of accepted values.

Furthermore, retribution has other limitations in modern society. In the first place,
since almost all prisoners return to society, they must not be so stigmatized that
they cannot take up lawful pursuits upon their release. As a matter of fact, the
trend in modern society to abolish physical torture and to eliminate public
punishments undoubtedly has reduced the force of retribution.

There is, too, an increasing impersonality in modern society. The humanitarian

movement in Western civilisation has made many conscious of the suffering of
their fellow human beings and filled some with a desire to reduce pain and misery
everywhere.

However, even after full consideration is given to the limitations of retribution

in modern society, we must still conclude that it remains one of the principal
purposes of punishment. In practice deterrence and reformation receive more
attended, while retribution, often shunned and condemned, is left to shift for
itself. Nevertheless there are cases where neither deterrence nor reformation is
possible; yet something must be done. It is here that retribution stands out
distinctly as a purpose of punishment.

b) Deterrence
Deterrence is considered by many to be the most important purpose of punishment.
By deterrence is meant the use of punishment to prevent others from committing
the crimes. In order to accomplish this purpose, the offender is punished so that
he will be held up as an example of what happens to those who violate the law,
the assumption being that this will curb the criminal activities of others. It is
argued that this is worthwhile even if some are not deterred by what is done to
the offender. It is also said that the existence of crime does not mean that
punishment is not efficacious as a deterrent since it is impossible to determine
how such crime there would be if criminals were not punished.
Many of those who believe that deterrence is important consciously or
unconsciously base their belief on the doctrine of the freedom of the will.
According to this doctrine a person is free, at least to some extent, to do as he
pleases, and society must in some way prevail upon him to bring his behaviour
into conformity with generally accepted standards. When one violets the law, it
is assumed that he might have acted otherwise if he had so desired. Therefore, he
is held not to have disciplined himself sufficiently, and he deserves to be punished.
He must be taught a lesson, and others, impressed by his experience, will choose
to obey the law. An 18th century judge, while awarding death sentence to a person
guilty of stealing a sheep observed that “You are to be hanged not because you
have stolen a sheep but in order that others may not steal sheep”.
However, those who reject this doctrine contend that it is vitiated by a fundamental
inconsistency (Harry Elmer Barnel and Negley K. Teeters, Edwin H. Sutherland,
Chapman Cohen) as criminal behaviour is not an expression of free-will, but
rather a product of the forces of heredity and environmental as they interact in
the life of the individual.
43
Basic Issues c) Reformation
The object of punishment is the reform of the criminal, if a person commits a
crime he does not cease to be a human beings, so the object of punishment
should be the moral reform of the offender. According to reformative theory a
crime is committed as a result of the conflict between the character of a man and
the motive of the criminal. One may commit a crime either because the temptation
of the motive is stronger or because the restrain imposed by character is weaker.
The reformative theory wants to strengthen the character of the man so that he
may not become an easy victim to his own temptation. This theory considers
punishment as medicine. According to this theory crime is like a disease so you
cannot cure by killing. For this reason a punishment like imprisonment should
be given to criminal and all prisons should be transformed into residences where
physical moral and intellectual training should be given in order to improve the
character of criminal. The ultimate aim of reformists is to try to bring about a
change in the personality and character of the offender, so as to make him a
useful member of society.

In modern times increasing emphasis is being placed upon the reformation, or

rehabilitation, of the criminal. With reference to this, no one will deny that it is
possible to influence human behaviour through pain and fear and that punishment
has reformative value in many cases. However, one must also understand the
limitations of punishment when used for the purpose of reformation.

A programme of reformation or rehabilitation must contain both negative and

positive elements, both pleasure and pain, and both persuasion and authority;
and to be most effective it must be based upon an intensive study of the individual.
The reformative procedure must not be so pleasant as to encourage further criminal
activities, but it must at the same time be so designed as to produce desirable
changes in the personalities of offenders.

Punishment is an art which involves the balancing of retribution, reformation,

and deterrence in terms not “only of the court and the offender, but also of “the
values in which it takes place, and in the balancing of these purposes of
punishment, first one and then another receives emphasis as the accompanying
conditions change”. It is clear, therefore, that a method of punishment which is
suitable today may, have been unsuitable in the past and may again become
unsuitable in the future.
Self Assessment Question
1) “Balancing of Retribution, reformation, and deterrence best serves the
purpose of punishment”. Explain.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................

44
 Formal and Informal
3.5 THERAPEUTIC RESPONSE TO CRIME Responses to Crime

3.5.1 Prison System

With growing humanitarianism, increasing impersonality in social relationships
and growing, belief in the powers of science, capital and corporal penalties have
become unacceptable and ineffective and have been largely replaced with
imprisonment, probation and parole. And since in the programme of handling
offenders the emphasis shifted from the infliction of suffering to the understanding
of the causes of crime, the redirection of the individual in the light of such
understanding of the causes of crime, the redirection of the individual in the
light of such understanding and the modification of the conditions which produce
criminality, some criminologists have recommended that this programme be
called treatment/therapeutic instead of punishment.

In India over one million criminal cases are reported every year. Such annual
incidence of crime in the country necessitates the existence of a huge network of
prisons and other institutions of correctional administration, even when in our
country the number of prison inmates per million of population is one of the
lowest in the world. We have in our country a total of 1119 prisons of different
categories and sizes, with an authorised inmate capacity of 2, 29,713.Under the
Seventh Schedule to Constitution of India, prisons are managed and governed
by State Governments and Governments of Union Territories.

a) Underlying Idea of Custody of Prisoners

The prisons in India are not considered a house for incarceration to deter criminal
behaviour. Mahatma Gandhi, the father of our nation, had once said “Crime is
outcome of a diseased mind and jail must have an environment of a hospital for
treatment”. During the last 63 years, our prisons have been converted into the
correctional institutions. The main goal of prison administration in India, today
is to develop a sense of discipline and security among prisoners, and to reform
and rehabilitate them in the given social milieu through appropriate correctional
interventions. The aim of correctional institution is to equip the prisoners with
such skills and abilities as will help them to lead a normal life as a citizen, once
they are let out of prisons.

It is a universally held view that sentence of imprisonment would be justifiable

only if it ultimately leads to protection of society against crime. Such a goal
could be achieved only if incarceration motivates and prepares the offender for a
law-abiding and self-supporting life after his release. It further accepts that, as
imprisonment deprives the offender of his liberty and self-determination, the
prison system should not be allowed to aggravate the suffering already inherited
in the process of incarceration. Thus, while certain category of offenders, who
endanger public safety, have to be segregated from the social mainstream by
way of imprisonment; all possible efforts have to be made to ensure that they
come out of prisons as better individuals than what they were at the time of their
admission thereto.

b) Health Services in Prisons

Prisons in India provide requisite medical equipment for the treatment and
diagnostic facilities in prisons. The Government of India also has given priority
45
Basic Issues to health care and sanitation and is providing financial assistance to the States
for the modernisation of health and hygiene of the prisoners. All the Central and
District Prisons have whole time or part time physicians in Prison Hospitals
which has both outdoor and indoor facilities. The medical staff thoroughly
undertakes medical examination of all prisoners periodically. They also carry
out inspection of food, sanitation and hygiene and other amenities being provided
to the prisoners.

c) Vocational Training in Prisons

Training of prisoners in different vocations is given a lot of attention in every
State. Such vocational training provides opportunities to the prisoners to engage
themselves in fruitful pursuits during their prison term. Such training not only
inculcates in them a sense of value for one’s work, but also helps the prisoners
learn such work as will enable them to follow an honest vocation and earn a
decent livelihood, when they are released from prison. Apart from regular
vocational training in various trades and occupations, and the educational training
schedules, correctional institutions in India have also started a large number of
programmes to improve the personality and mindset of the prisoners. These are
programmes on anger management, social skills training, counseling against drug
and substance abuse, Yoga, Transcendental Meditation and Vipasana.

In many jails, inmates including hardcore criminals and women have joined
various courses offered by IGNOU and other State Universities. In many jails
full fledged computer training centers have been established. The inmates are
also provided training in carpentry and fabric painting. Many jails have also
initiated programmes for women empowerment by training then in weaving,
making toys, stitching and making embroidery items. Wage earning and gratuity
schemes and incentives are also used to reduce the psychological burden on the
convicts. Various seminars are organised by jail authorities to enlighten the
prisoners on their legal rights, health and sanitation problems, HIV/AIDS and
issues of mental health, juveniles, minorities and steps to reduce the violence in
prisons.

The open prison system has come as a very modern and effective alternative to
the system of closed imprisonment. The establishment of open prisons on a large
scale as a substitute for the closed prisons, the latter being reserved for hardcore
criminals shall be one of the greatest prison reforms in the penal system.

d) Policy on Prison and Correctional Administration

Criminal justice system often gets a bad name because of the bitter experiences
people have with custodial institutions including the so-called correctional and
rehabilitation centres. Prisons are mostly overcrowded and are notorious for
corruption and mal-administration. Unlike prisons in many other countries,
majority of inmates in the Indian jails are under trial prisoners who could not
secure their freedom due to denial of bail or non-fulfilment of conditions of bail.
Another large section of prisoners are those sentenced to short terms of
imprisonment in whose cases correction or rehabilitation has little application.
The system of classification as it exists is more on paper than in practice in many
institutions.

46
The use of torture in Indian prisons/detention centres is a matter of documented Formal and Informal
Responses to Crime
fact. The National Human Rights Commission registered 1,996 cases of torture
of prisoners in 2006-2007, 2,481 cases in 2007-2008 and 1,596 cases in 2008-
2009 (upto 11 December 2008).151 According to National Crime Records Bureau
(NCRB) under Ministry of Home Affairs, 1,424 prisoners died in 2006, 1,387
prisoners in 2005, 1,169 prisoners in 2004,152 and 1,060 prisoners in 2003153
in India. Of the 1,423 prisoners who died in 2006, 80 died as a result of “unnatural”
Causes.5

Of course, at the instance of the Supreme Court and several expert committees
appointed from time to time, a series of organisational and administrative reforms
have been introduced in many prisons making life somewhat more tolerable and
human rights friendly. The policy of appointing ‘Visiting Committees’ headed
by the District Judge for Jails, and institutionalising a fair and transparent
grievance redressal system for prisons and correctional centres has to be pursued
to make them conform to minimum standards prescribed.

The living and working conditions of prison staff have to be upgraded substantially
for professionalisation of prison and correctional services.

For women in custodial centres, certain special privileges have to be provided,

based on their special needs. The recommendations of Justice Krishna Iyer
Committee, appointed by the Central Government in 1979, relating to custodial
justice to women, require immediate implementation. Children living with their
mothers in prisons have to get their basic rights protected for which the Supreme
Court in 2006 has given some directions which also have to become an integral
part of the Jail Manuals.

Probation and parole, intelligently and imaginatively administered, can

considerably ease the ills of the prison system and promote prospects for
rehabilitation and re-integration of convicts. However, the norms in this regard
have to be standardised and strictly followed, lest it should provide yet another
opportunity for corruption and abuse of power.

Finally, there is a lot of scope for institutionalising open jails and its variants. If
properly administered, in conjunction with large public works projects, many
existing problems in prisons can be resolved to a large extent. If corrective labour
becomes part of sentencing options, open jails can possibly help in its
administration and supervision.

The National Policy should aim at reducing prison population and enhancing
standards of prison discipline and administration with a view to making it serve
a social purpose and helping to reduce opportunities for corruption and abuse of
power. The same approach should be extended to other custodial and correctional
institutions so that as far as possible, correction and rehabilitation are
accomplished through non-institutionalised methods.6

5
National Crime Records Bureau, “Prison Statistics India 2006”, Chapter 9, available at
http:// ncrb.nic.in/PSI2006/prison2006.htm
6
Draft of a National Policy Paper on Criminal Justice, Ministry of Home Affairs, 2006, pp30-31
47
Basic Issues
Self Assessment Questions
2) What is the rationale of custody of prisoners? Whether it is justified to
call prisons as correctional houses ? Explain.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
3) Discuss present condition of prisons in India. What measures can be
adopted to meet the problem of overcrowding in prisons?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................

e) Release on Probation
The probation is intended to be used to prevent young persons from being
committed to jail, where they may associate with hardened criminals, who may
lead them further along the path of crime, and to help even men of mature years
who for the first time may have committed crimes through ignorance or
inadvertence or the bad influence of others and who, but for such lapses, might
be expected to make good citizens. In such cases, a term of imprisonment may
have the very opposite effect to that for which it was intended. Such persons
would be sufficiently punished by the shame of having committed a crime and
by the mental agony and disgrace that a trial in a criminal court would involve.

The term Probation is derived from the Latin word ‘probare’, which means to
test or to prove. It is a treatment device, developed as a non-custodial alternative
which is used by the magistracy where guilt is established but it is considered
that imposing of a prison sentence would do no good. Imprisonment decreases
his capacity to readjust to the normal society after the release and association
with professional delinquents often has undesired effects.

According to the United Nations, Department of Social Affairs, the release of

the offenders on probation is a treatment device prescribed by the court for the
persons convicted of offences against the law, during which the probationer lives
in the community and regulates his own life under conditions imposed by the
court or other constituted authority, and is subject to the supervision by a probation
officer. The suspension of sentence under probation serves the dual purpose of
deterrence and reformation. It provides necessary help and guidance to the
probationer in his rehabilitation and at the same time the threat of being subjected
to un exhausted sentence acts as a sufficient deterrent to keep him away from
criminality. The United Nations recommends the adoption and extension of the
probation system by all the countries as a major instrument of policy in the field
of prevention of crime and the treatment of the offenders.
48
3.5.2 Law of Probation In India Formal and Informal
Responses to Crime
Section S.562 of the Code of Criminal Procedure, 1898, was the earliest provision
to have dealt with probation. After amendment in (2 of 1974) it stands as Section
360 of The Code of Criminal Procedure, 1973. It reads as follows:

When any person not under twenty-one years of age is convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or less,
or when any person under twenty-one years of age or any woman is convicted of
an offence not punishable with death or imprisonment for life, and no previous
conviction is proved against the offender, if it appears to the Court before which
he is convicted, regard being had to the age, character or antecedents of the
offender, and to the circumstances in which the offence was committed, that it is
expedient that the offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period (not exceeding three years)
as the Court may direct and in the meantime to keep the peace and be of good
behaviour.

Section 361 makes it mandatory for the judge to declare the reasons for not
awarding the benefit of probation.

a) Probation of Offenders Act, 1958

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down
for probation officers to be appointed who would be responsible to give a pre-
sentence report to the Magistrate and also supervise the accused during the period
of his probation. Both the Act and Section 360 of the Code exclude the application
of the Code where the Act is applied. The Code also gives way to state legislation
wherever they have been enacted.

While discussing the importance of Probation of Offenders Act, the court said
that where the provisions of Probation of offenders Act are applicable the
employment of Section 360 of CrPC is not to be made. In cases of such application,
it would be an illegality resulting in highly undesirable consequences, which the
legislature, who gave birth to the Probation of Offenders Act and the Code cannot
obviate.7

b) Section 4 of the Act provides for probation

Section 4 Power of Court to release certain offenders on probation of good conduct
(1) When any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the Court by which the person
is found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is expedient
to release him on probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he be released on his entering
into a bond, with or without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as the court may direct, and
in the meantime to keep the peace and be of good behaviour.

7
Gulzar v. State of M.P., (2007) 1 SCC 619: (2007) 1 SCC (Cri) 395.
49
Basic Issues Section 6 of the same Act lays special onus on the judge to give reasons as to
why probation is not awarded for a person below 21 years of age. The Court is
also to call for a report from the probation officer before deciding to not grant
probation.

The provision under the Code and the Act are similar, as they share a common
intent, that, punishment ought not to be merely the prevention of offences but
also the reformation of the offender. Punishment would indeed be a greater evil
if its effect in a given case is likely to result in hardening the offender into repetition
of the crime with the possibility of irreparable injury to the complainant instead
of improving the offender.

c) Juvenile Justice (Care and Protection of Children) Act, 2000

Besides these two enactments, the Juvenile Justice (Care and Protection of
Children) Act, 2000 also provides for the release of children who have committed
offences to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit
person executing a bond, with or without surety, or any fit institution as the
Board may require, for the good behaviour and well-being of the juvenile for
any period not exceeding three years.

d) Procedure For Probation Service

Section 4(2) and Section 6(2) of the Probation of Offenders Act provide that the
judge would consider the report of the probation officer before deciding on
whether to grant probation. Section 14 of the said Act lays down the duties of the
Probation Officers.
The pre-sentence report of the Probation Officer is the fundamental document
for the guidance of the Court whether to grant the benefit of probation to the
accused or not. The object of the pre-sentence report is to appraise the court
about the character of the offender, exhibit his surroundings and antecedents and
throw light on the background which prompted him to commit the offence and
give information about the offenders conduct in general and chances of his
rehabilitation on being released on probation.
The judge may also pass a supervision order under Section 4(3) of the Act,
whereby the offender is placed under the supervision of a probation officer and
certain conditions are imposed upon him. This is mostly in the form of regular
visits to the supervising officer. Some of the conditions which must be followed
have been laid down in Section 4(4). On the application of the probation officer
such conditions may be varied- Section 8(2) and also the offender may be
discharged- Section 8(3). If the offender fails to follow the conditions laid down
by the Court, the original sentence against him may be revived Section 9.
The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for
the report of a probation officer or a recognised voluntary organisation to be
considered before passing a sentence. The Magistrate appointed as a member of
the Board constituted under this Act must know something of child psychology.
The Board would pass orders against a juvenile. The Act provides for the setting
up of Observation and Special Homes by the State Government where the juvenile
could be placed. Here the rehabilitation and social integration of the child would
take place. It also provides for an After Care programme which would take care
50 of the delinquent child after he has been discharged from these homes, based on
the report of the Probation Officer. The Probation officers appointed under the Formal and Informal
Responses to Crime
probation of Offenders Act would also function under the Juvenile Justice (Care
and Protection of Children) Act. Probation in India is mostly dependent on the
policies of the State rather than a uniform Central Policy.
The Supreme Court, speaking through Krishna Iyer, J., has made it absolutely
clear that the philosophy of Probation of Offenders Act, 1958 is not suitable for
persons indulging in activities such as adulteration of food.8 Forty-seventh Report
of the Law Commission of India (1972) also recommended the exclusion of
social and economic offences from the Act by suitable amendments of the law.”

The question of releasing an offender on probation has been discussed by the

Indian courts in detail. The court has laid down that release on probation has to
be exercised having regard to the circumstances of case, age, character and
antecedents of the offender. The Supreme Court further said that the court
magistrate shall exercise the discretion carefully.9 It has also been held that the
provisions of Probation of offenders Act, 1958 and Section 360 CrPC will not
apply in cases which are registered under Prevention of Corruption Act.10

Another area in which the probationary philosophy should have no relevance is

the one relating to sexual offences; particularly where commercial exploitation
or immoral trafficking is also involved. An illustration is provided by the situation
in Devki v. State of Haryana.11

e) Advantages of Probation Service

Probation keeps the offender away from the criminal world. Further, the fear of
punishment in case of violation of probation law has a psychological effect on
the offender. It deters him from law breaking during the period of probation.
Thus probation indirectly prevents an offender from adopting a revengeful attitude
towards the society. Moreover, sentencing an offender to a term of imprisonment
carries with it a stigma, which makes his rehabilitation in society difficult. The
release of the offender on probation saves him from stigmatisation and thus
prepares him for an upright living.

Probation seeks to socialise the criminal, by training him to take up an earning

activity and thus enables him to pick up those life-habits, which are necessary
for a law-abiding member of the community. This inculcates a sense of self-
sufficiency, self-control and self-confidence in him, which are undoubtedly the
essential attributes of a free-life. The Probation Officer would guide the offender
to rehabilitate himself and also try and wean him away from such criminal
tendencies.

An analysis of crime statistics would show that a large segment of offenders

consists of the poor, the illiterate and the unskilled. Such offenders are seen to be
victimized. They are not only denied of their basic human needs in open society
and forced to live in a sub-culture of social marginality, but are also grinded in
the mill of criminal justice for having infringed the law. Probation would thus be

8
Pyarali K. Tejani v. Mahadeo Ramchandra Dange, (1974) 1 SCC 167: 1974 SCC (Cri) 87.
9
MCD v. State of Delhi, (2005) 4SCC 605: 2005 SCC (Cri) 1322.
10
State of T.N. v. Kaliaperumal, (2005) 12 SCC 473: (2006) 1 SCC (Cri) 615.
11
(1979) 3 SCC 760: 1979 SCC (Cri) 861.
51
Basic Issues an effective means to deliver justice to them, they would not be incarcerated and
also they would be trained which would improve their life later. During the
probation period, the offender is sent to various educational, vocational and
industrial institutions where he is trained for a profession which may help him in
securing a livelihood for himself after he is finally released and thus lead an
absolutely upright life.

Self Assessment Question

4) Discuss object of law of probation in India.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................

f) Release on Parole
Parole is the release of an offender from the prison before the expiration of the
term of imprisonment. The object of parole is to prepare the prisoner for
adjustment to normal social life outside the prison and it, therefore, signifies the
transitory please from imprisonment to normal freedom. While on parole the
prisoner lives at liberty subject to the conditions which may be imposed by the
parole order. Violation of any condition in the parole order may result in the
cancellation of the order and the convict is to be sent back to prison.

The term parole is also often used to express the idea of “furlough” granted to
the prisoners to visit their families for short periods while completing their terms
of imprisonment. Parole is different from a “furlough”. While parole is granted
to a prisoner detained for any offence irrespective of the duration of imprisonment,
a furlough is only granted to prisoners facing long sentences, five years or
more.The object evidently is to keep the prisoner in contact with society in general
and his family in particular which would not otherwise be possible in case of
long imprisonment. In particular, it is conducive to a normal sex life of the
prisoner, not possible otherwise, and an opportunity is also provided to the prisoner
to make financial contribution to the family by his earnings outside the jail.12

g) Valid Grounds of Parole in India

Under Indian jail laws, a prisoner may be released on parole in certain emergency
situations, which includes the following health-related concerns:
• Complete and incurable blindness
• Advanced pulmonary tuberculosis, which incapacitates the prisoner from
committing further crimes of the nature for which s/he was sentences
• Is dangerously ill, and is likely to have a better recovery outside prison
• Has become mentally unstable, and requires treatment in a asylum

12
Ahmad Siddique’s Criminology & Penology, p.245
52
Additionally, a prisoner in India may be granted parole in the following Formal and Informal
Responses to Crime
exceptional cases:
• To perform funeral rites
• To visit a sick or dying member of the family
• To attend important functions, such as marriage of son, daughter, brother or
sister
• To construct a house or repair a badly damaged house
h) Decision of Release
The decision to release a prisoner on parole is generally taken by a Parole Board.
In India, under the rules in force in some of the States, the opinion of the police
department is also given due consideration in taking the decision. The crucial
question faced in making the decision, one way or the other, is to be able to make
the prediction regarding the outcome of release. This involves the examination
of issues such as whether the convict had profited by his stay in the institution,
whether he was so reformed that he was unlikely to commit another offence,
what his behaviour was in the prison, whether any suitable employment awaited
him on release, whether he had a home or other place to go, whether he told the
truth when he was questioned by the Parole Board, how serious his crime was
and in what circumstances it was committed, his appearance when interviewed
by the Board and what behaviour he had demonstrated if he was already on
parole in connection with another imprisonment.

The courts in India have shown increasing interest in the use of parole by issuing
directives to the prison administrators in appropriate cases. In Hiralal Mallick v.
State of Bihar,13 the Supreme Court observed that “...one method of reducing
tension is by providing for vital links between the prisoner and his family. A
prisoner insulated from the world becomes bestial and, if his family ties are
snapped for long, becomes dehumanised. Therefore, it is desirable that parole
be granted for reasonable spells, subject to sufficient safeguards ensuring proper
behaviour outside and prompt return inside.”

In Hari Singh v. State of Haryana14 , it was held that the denial of parole on the
flimsy ground that the prisoner’s release would endanger the public order was
not justified whereas in Baldev Singh v. State of Punjab High Court held that the
district judge should give his approval for parole only after furnishing the reasons
for the same.

i) Evaluation of probation and parole

Probation and parole have the same objectives — rehabilitation of offenders and
protection of society from his actions at the same time. In both the techniques,
skilful supervision of selected offenders is involved outside the prisons. But
there is an important distinction between the two. In probation, the offender is
not sent to jail after being found guilty and the decision to grant probation is to
be made by the court. In parole, the convict is released after serving his sentence
for some time and the release is not the result of any judicial decision.

13
(1977) 4 SCC 44: 1977 SCC (Cri) 538.
14
(1993) 2 Chandigarh Cri Cases 373.
53
Basic Issues The advantages of probation and parole have been mentioned in terms of
protection of the offenders’ personality from the contaminating influence of prison
life. The released offender has the advantage of continuing to have normal social
relationships and his employment. The offender is also spared of the stigma of a
prison sentence making the task of rehabilitation easier. A study undertaken in
the Michigan State of the USA proved that in the ultimate analysis, it is more
economical to conduct probation services than to construct new prisons and
maintain them.15 It is also pointed out that unlike the dependants of an offender
sent to prison, the dependants of a probationer do not have to be supported by
welfare agencies.

Probation and parole is of great benefit for a country like India, where the jails
are often overcrowded, with frequent human rights violations which would harden
the human inside a person. Release of offenders on Probation or parole is an
affirmation of the human inside every being and it must be given due importance.
Self Assessment Question
5) What are the grounds of release on parole for offenders ?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................

3.6 PREVENTIVE RESPONSE TO CRIME

Besides formal various informal/general programmes of crime prevention have
been outlined. Bentham in the last part of the, 18th century made a comprehensive
outline of the ‘indirect method’? (that is, methods other than punishment) which
night be used to prevent crime. He included such things as taking away the physical
power of injury, diverting the course of dangerous desires, decreasing
susceptibility to temptations, general education, a code of morals similar to a
code of laws, and other things.

Ferri, a member of the Italian school, in the last part of the 19th century paid
considerable attention to the prevention of crime. He had a doctrine of criminal
saturation, namely, that a group has the crimes it deserves in view of the type of
people and the conditions of the group, and that as long as the type of people and
the condition remain constant, crime will remain constant regardless of methods,
of punishment. Consequently he insisted that penal substitutes, or methods of
modifying the conditions and traits of people, should be used. He outlined a long
list of these, including free trade, reduction in consumption of alcohol, metal
(instead of paper) money, street lights, reduction in hours of labour, lower interest
on public securities, local political autonomy, and many other things.16

15
Ahmad Siddique’s Criminology & Penology, p.247-48
16
54 Goswami,B.K., A Critical Study of Criminology and Penology,p.192
a) Role of Civil Society in Crime Prevention Formal and Informal
Responses to Crime
Civil society has an important role to play in crime prevention and law
enforcement. Criminal laws increasingly adopt provisions accommodating the
people’s participation in the administration of justice. Apart from prevention of
crimes and assistance in investigation and trial, the amended criminal procedure
code encourages settlement of criminal cases through compounding and plea
bargaining. In the matter of juvenile delinquency, the participation of civil society
organisations is critical for justice to children and protection of society. Similarly,
in cases of what are called social welfare offences, enforcement agencies can do
very little without the involvement of the neighbourhood community, school,
family etc.

Taking note of the importance of civil society in criminal justice administration,

future legislation should find ways and means to accommodate and facilitate
public participation. The concepts of honorary policemen, honorary probation
officers, justices of peace and assessors to assist courts, need to be invoked more
and more if criminal justice is to succeed in future.

Today, the people are increasingly alienated from the system because of
bureaucratic apathy, corruption, delays and humiliation. Law enforcement
agencies, by themselves, are unlikely to succeed in enlisting public support in
law enforcement work in the prevailing circumstances. As such, legislative
provisions may be needed to make it possible and functional. Of course,
vigilantism is to be prevented which can be done by incorporating appropriate
provisions in the legislation itself. A Law Enforcement Assistance Squad involving
senior citizens and trained youth in different wards can help, if properly
coordinated and streamlined with clear guidelines. Even in criminal justice reform,
these bodies can be of help to the state apparatus.

In due course, decentralised system of criminal justice has to be put in place as

part of Panchayat Raj administration. Some routine aspects of criminal justice
would naturally be vested in local bodies. Grameen Nyayalayas or equivalent
bodies will be involved in resolving criminal disputes locally and in managing
law enforcement of the locality. The policies of criminal justice administration
should, therefore, aim towards a decentralised, localised system except for dealing
with serious and complex crimes.17

b) Local Community Organisations

Though punishment is one method of building up anti-criminal attitudes in the
general public, it is not the most efficient method for preventing crime. The
development of habits and attitudes by education, by the spreading of traditions,
by the contacts and interactions between those who appreciate the values and
those who do not is probably a more efficient method. As we find out more
about crime causation, we shall have a better basis for the determination of specific
policies for this purpose. These policies, if carried out consistently may be
expected to protect society from crime

The closest approximation for a formula for the control of delinquency that can
be made at present is that delinquency mast be defined as undesirable by the

17
Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home
Affairs, Government of India, July, 2007, p.51 55
Basic Issues personal groups in which a person participates. Policies for prevention of
delinquency and crime, therefore, should be directed primarily at these personal
groups. In this sense, control of delinquency and crime lies within the local
community.

c) Case work with near-delinquents

Two principal agencies have developed in the attempt to turn these near-
delinquents away from their trend towards delinquency, namely, child guidance
clinics and visiting teachers.

d) Group work with near-delinquents

One of the significant developments in social work during the last two decades
is group work; (1) An individual is induced to become a member of a group, as
a means of satisfying his needs as a person. (2) A second type of group work
consists in re-directing the activities of a group of persons, all or nearly all of
whom are delinquent or near-delinquent.

e) Co-coordinating Councils
Traditionally, case-work agencies, group work agencies, child guidance clinics,
and character building organisations have worked separately and independently
toward achievement of the common goal, delinquency prevention. During the
last generation this tradition has broken down in many communities and the
work of the various agencies and organisations, both public and private, has
been integrated by means of local ‘co-coordinating councils’. These councils are
based on the theory that local community resources must be mobilised if the
community needs are to be met.

While general institutional reorganisation may be desirable, its relation to the

control of delinquency is highly speculative at present. Those who are interested
in the control of delinquency can find more justification for approaching their
problem in the “local community” than in the general institutional structure.
Within a given institutional structure, wide variations are found from one
community to another, and these variations in delinquency rates seem to be related
to the local rather than national conditions.

Self Assessment Question

6) What informal measures can be adopted to prevent the crime and
delinquency in the society?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................

Conclusion
Thus protection against crime would be secured by modifying those who could
be modified by available techniques, segregating those who could not be so
56
modified, and correcting or segregating in advance of crime those who were Formal and Informal
Responses to Crime
proved to be most likely to commit crime, and attacking and eliminating the
social situations which were most conducive to crime. Such policies would be
as much evidence that the civil society disapproved of crime as would punishment,
and it is this disapprobation, rather than punishment of individual criminals,
which tends to deter the large majority of the population from crime.

Furthermore, it must be recognised that it is highly dubious, even from a purely

theoretical view point, whether any interference with normal living can ever be
completely non-punitive. Punishment and treatment are so integrated as to be
inseparable. Even the most kindly treatment imaginable, confinement in the Ritz,
with very solicitous attentions on the part of the jailor-has its punitive element;
any normal person would oppose it. In fact, the notion that it is possible to
administer medical and psychological treatment without at the same time applying
punishment would disappear on any acquaintance with even the best asylums
for mentally diseased offenders-confinement and close supervision are punitive
regardless of the attitude of the attendants. Just as treatment is to some extent
punitive, so punishment, if wisely administered, also rehabilitates. Moreover,
both the sensations of pain and pleasure can be utilised profitably during the
process of rehabilitation. It is not then, a question of whether there should be one
or the other of these sensations, or whether there should be treatment or
punishment, but rather how both treatment and punishment can be most
judiciously balanced to produce the best results in the modification of behaviour.

One must admit, however, that in our complex culture the deterrent “and
retributive effects of punishment are indirect and uncertain in many cases, while
the return of almost all criminals to society is a real and indisputable fact”. It is
evident that the emphasis in our system of punishment should be placed upon
the reformation of the prisoner; our society should do everything within its power
to understand criminals and to create and foster in them such tendencies as make-
for constructive and useful lives. This is not only the most sensible and profitable
way of dealing with our criminals, but also the most effective method of expanding
the knowledge we already have regarding crime causation and crime prevention.

From the above discussion it should not be interpreted to mean that the criminal
should be cuddled or pampered or kept in a ‘prison palace’. We are not in anyway
confronted with the problem of having to choose between granting leniency or
inflicting pain. As has been explained, the process of reformation inevitably
involves suffering, and since liberty is highly prized in modern society,
imprisonment may be an exceedingly painful experience. But the essential point
here is that the process of reformation should be based upon a detailed study of
what the prisoner is physically, mentally, and emotionally, as measured by the
best available knowledge.

Moreover, a system of punishment in which reformation is the principal purpose

does not have to interfere in any way with aggressive law enforcement and
effective criminal prosecution. Nor does it entail the elimination of any to the
discomforts, inconvenience, and disgrace involved in the arrest, trial and
conviction of a criminal. Consequently, with such a system it is still possible to
satisfy society’s desire for retribution and to have whatever deterrence can be
secured by exciting fear in others.

57
Basic Issues But far more important than an understanding of this shift in the emphasis in
punishment is the recognition that punishment itself is only one element in the
much larger system of social control that exists in society. In this larger system it
is not the fear of legal penalties that keeps the great majority of persons from
violating the law, but rather the desire to find love, respect, and security among
relatives, friends, and business associates. This is the principal form of social
control, and it will always function regardless of what methods are used in dealing
with criminals.

No government can guarantee total elimination of crime as criminality is part of

human nature. However, every government is expected to convey the message
that crime does not pay and criminals howsoever highly placed in society will be
apprehended and punished according to law and the procedures. Criminal Justice
is a measure of civility in a society and the way it is managed by the state
determines the character and performance of the state and its governance system.

(Refer to MLE-011: Criminal Justice System Block 4: Correctional Processes

MLE-014: Criminal Justice Administration Block 2: Prison Also)

3.7 SUMMARY
• The Criminal Justice is concerned with prevention and control of crime,
maintenance of public order and peace, protection of the rights of victims
as well as persons in conflict with the law.
• The object of the criminal justice system is to reform the offender, and to
ensure the security of society and its people by taking steps against the
offender and rehabilitation of those adjudged guilty of committing crimes.
• Crime control and criminal justice management are the products of a fair,
efficient and effective criminal justice system which is itself the product of
multiple sub-systems such as the police, the prosecution, the judiciary, the
prisons and a number of co-existing social control mechanisms outside the
formal state system (education, family, media etc.)
• Earlier penological approach held imprisonment to be the only way to curb
crime,
• The modern penological approach has brought in new forms of sentencing
whereby the needs of the community are balanced with the best interests of
the accused.
• Compensation, parole, release on admonition, probation, imposition of fines,
community service etc. are few such techniques used for reforming the
criminal.
• Punitive response to crime devised a great variety of methods for the
punishment of criminals. The most common ones have been death, physical
torture, mutilation, branding, public humiliation; fines, forfeiture of property,
banishment, transportation, and imprisonment, but each of these had many
forms.
• The principal purposes of punitive response are retribution, reformation (or
rehabilitation), and deterrence.
58
• With growing humanitarianism, increasing impersonality in social Formal and Informal
Responses to Crime
relationships and growing, belief in the powers of science, capital and
corporal penalties became unacceptable and ineffective and have been largely
replaced with imprisonment, probation and parole as therapeutic response
to crime.
• In modern times our prisons have been converted into the correctional
institutions to develop a sense of discipline and security among prisoners,
and to reform and rehabilitate them.
• Prisons in India provide requisite medical equipment for the treatment and
diagnostic facilities in prisons. Besides, vocational training provides
opportunities to the prisoners to engage themselves in fruitful pursuits during
their prison term and even after their release from the prison.
• In many jails, inmates including hardcore criminals and women have joined
various courses offered by IGNOU and other State Universities.
• The open prison system has come as a very modern and effective alternative
to the system of closed imprisonment.
• Probation and parole, intelligently and imaginatively administered
considerably eases the ills of the prison system and promote prospects for
rehabilitation and re-integration of convicts.
• The probation is intended to be used to prevent young persons from being
committed to jail, where they may associate with hardened criminals.Section
562 of the Code of Criminal Procedure, 1898, was the earliest provision to
have dealt with probation. After amendment in (2 of 1974) it stands as Section
360 of The Code of Criminal Procedure, 1973.
• In 1958 the Legislature enacted the Probation of Offenders Act, which lays
down for probation officers to be appointed who would be responsible to
give a pre-sentence report to the Magistrate and also supervise the accused
during the period of his probation.
• Parole is the release of an offender from the prison before the expiration of
the term of imprisonment.
• Civil society has an important role to play in crime prevention and law
enforcement. Criminal law should increasingly adopt provisions
accommodating the people’s participation in the administration of justice.
• A Law Enforcement Assistance Squad involving senior citizens and trained
youth in different wards can help in preventing the crime, if properly
coordinated and streamlined with clear guidelines.
• Grameen Nyayalayas, Local Community Organisations, Co-coordinating
Councils or equivalent bodies to be involved in resolving criminal disputes
locally and in managing law enforcement of the locality.
• It is not the fear of legal penalties that keeps the great majority of persons
from violating the law.
• Desire to find love, respect, and security among relatives, friends, and
business associates are the principal form of social control, and it will always
function regardless of what methods are used in dealing with criminals. 59
Basic Issues
3.8 TERMINAL QUESTIONS
1) Discuss in detail meaning, object and theories of punishment.
2) What is the role of civil society in preventing crime and criminal tendencies
in the society?

3.9 ANSWERS AND HINTS

Self Assessment Questions
1) The object of punishment is not only retribution and deterrence, but
reformation and rehabilitation also. Only a combination of it with right
emphasis can serve the purpose of crime. Refer to Sub-section 3.4.2(c)
2) Prisons in India are not considered a house for incarceration to deter criminal
behaviour, but correctional houses, where vocational training etc. is provided
for the rehabilitation of the criminals in society after their release from the
prison. Refer to Sub-section 3.5.1(a), 3.5.1(a) and 3.5.1(d).
3) Refer to Sub-section 3.5.1(d)
4) The object of probation is to prevent young persons from being committed to
jail, where they may associate with hardened criminals. Section 562 of the
Code of Criminal Procedure, 1898, was the earliest provision to have dealt
with probation. After amendment in (2 of 1974) it stands as S.360 of The
Code of Criminal Procedure, 1973. Refer to Sub-section 3.5.2 of the material.
5) Under Indian jail laws, a prisoner may be released on parole in certain
emergency situations only. Refer to Sub-section 3.5.2(g).
6) Taking away the physical power of injury, diverting the course of dangerous
desires, decreasing susceptibility to temptations, general education, a code
of morals similar to a code of laws, and other things can be adopted as
informal methods for preventing crime and delinquency in the society. Refer
Section 3.6 of the unit.
Terminal Questions
1) Refer to Section 3.4 of reading material
2) Refer to Section 3.6(a) of the reading material

3.10 REFERENCES AND SUGGESTED READINGS

1) Report of the Committee on Draft National Policy on Criminal Justice,
Ministry of Home Affairs, Government of India, July, 2007.
2) Ahmad Siddique’s Criminology & Penology, 6th Ed, Eastern Book Co.
Lucknow, 2009.
3) Vibhute, K.I., “Criminal Justice” Eastern Book Co. Lucknow, 2004.
4) Govt. of India, Ministry of Home affairs, National Crime Records Bureau,
“Crime in India”, 2008.
5) Goswami, B.K., A Critical Study of Criminology and Penology, Allahabad
Law Agency, n.d.
6) Sutherland,E.H., Principles of Criminology, New York, 1961
7) Taft and England, Criminology, New York, 1964
60