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Criminal Justice System Through Years

Emile Durkheim in his treaties 'crime as a normal phenomenon' says a society composed of person with angelic qualities would not be free from violations of the norms of the society. Crime is a concept which changes with social transformation. He argued that crime is an essential element of society as it is fundamental condition of social organization.

The concept of crime seems to be changing always with the variations in the stages social condition of human society, in the historical view. During 12th and 13th centuries the crime were only those acts which were committed against the state or the religion.

Frederick Pollock and Maitland commented, that the English society before 10th century crime was confused with torts because the bond of family was better than community.

Another characteristic of crime in 1000 to 1200 AD was preponderance of system of ordeals by fire or water to establish the guilt or innocence of accused. And the reason behind this was religion dominance and superstitions people believed in that their relations governed by supernatural powers.

Thus, ordeal was an old institution, which was deep rooted custom, performed by people in ancient India.

In 18th and 19th centuries, European countries has witnessed a miraculous change in criminological thinking, the earlier study of crime was abandoned and a fresh start was done on the scientific basic. Due to that it was seen that the concept of crime is closely related to social policy, with change in ideologies the concept of crime also changes.

Crime
Almost every society have certain norms, beliefs, customs and traditions which are accepted by its members for well-being and healthy development, crime is an anti- social, immoral or sinful behavior of society.

Crime derived from Latin word 'crimen', which meant 'charges' or 'cry of distress' and according to English the word 'crime mean sinfulness'. However according to legal definition 'crime is any form of conduct which declared socially harmful and is forbidden by law.

Crime, means an act of commission or omission which is harmful to the society in general. But all acts tending to prejudice the community are not crime unless they are punishable under law. [1]

According to Indian Penal Code crime is an act prohibited by law of the land.

Therefore, criminologist, defined crime as intentional act or omission in violation of criminal law done without any justification and penalized by the law as felony or misdemeanour[2].

'crimes are wrong whose sanction is punitive, and is in no way remissible by any private person, but is remissible by the crown alone, if remissible at all[3].'

But this definition is being criticized that there are number of compoundable offences that are remissible by the consent of the parties.

Where in Roscoe Pound commented that 'a final definition of crime is impossible, because it is a concept which keeps on changing according to society. [4]

Austin, stated that a wrong which is pursued at the discretion of the injured and his representatives is a civil injury, but when wrong is pursued by the sovereign is a crime result in punishment. [5]

Halsbury defined crime as an unlawful act which is an offence against the public and the perpetrator of that act is liable to legal punishment. [6]

On The Basis Of Definition Given By Different Writers, Crime Has Three Character:

  • It is a harm brought by some anti-social act, which state desire to prevent.
  • There are preventive measures taken by state.
  • There are criminal laws which governs the legal proceeding for determining the guilt.


There are many criticism of legal definition of crime because of its relativity and variable content, still the most acceptable definition is given by Halsbury, because of its elaborative and specific nature.

There are variety of crime such as violent personal crimes, occasional property, occupational crimes, political crimes, public order crimes, conventional crimes, white collar crimes, sexual crimes, crime against property, person, public order and etc.

The Above Mentioned Crimes Can Be Specifically Categorized In Three Main Heads:

  • Offences falling under Code of Criminal Procedure.
  • Offences under Indian Penal Code.
  • Offences under local or special law or enactments.


Classification of crimes into political, legal, economic, social and miscellaneous are done by different writers.

These Crime Is Being Divided Into Different Categories Under Indian Penal Code, On The Base Of Their Gravity Or Atrocity, Such As:

  • Offences against person
  • Offences against property
  • Offences relating to documents
  • Offences affecting mental order
  • Offences against public tranquility
  • Offences against state
  • Offences relating to public servant


Crime and Morality
Earlier, crime was considered acts which is morally not appropriate. Moral means any behaviour which is right or wrong, according to experience. But now with change in time and advancement in legal science, crime is defined as an act forbidden and punishable by law irrespective of moral or immorality of the act.

The most recent example of change in legal field can be seen in the verdict handed by Supreme Court in Navtej Singh Johar & ors. V Union of India [7], in this case section 377 of Indian Penal Code was in question, and court declared as unconstitutional, as now sex between homosexual (or gay sex, GTBTQ) is no longer an offence under this section.

Changes in laws which is not related to moral because according to people belief this concept of same gender relation is still not morally correct, so these changes are according to advancement in the society so that other rights provided to citizen won't be infringed and the balances between the rights are maintained.

Because in case Naz Foundation v Government of NCT Delhi [8], the court declared section 377 of Indian Penal Code as unconstitutional, as it violates the Art 14, 21 and 15 of Indian Constitution . But supreme court in Suresh Kumar Kaushal v Naz Foundation[9], over ruled the Delhi High Court judgment and said section 377 is not ultra vires in nature.

Another case is Josheph Shine v. Union of India [10], in this section 497 of Indian Penal Code was challenged as indiscriminative because it was punishable with imprisonment up to 5years for men, but now it is gender neutral ground for divorce and act as restriction on married couple's sexual freedom.

Development in the field of psychology, sociology, and other behavioral science have brought changes in criminological trends.

Criminal Justice System
Criminal justice system, is a system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing and punishing those who are suspected or convicted of criminal offences. The enactment and implementation of different kinds of institutionalized decisions concerning crimes and their punishment, is the main motive of criminal justice system.

There is different concept which need to be studied for understanding a criminal justice system:

  1. Criminology
    Analyze different aspects of crime and measures for treatment of criminals to help them to resocialisation and rehabilitation in the society. Thus, criminology is a branch of study which leads to welfare of community as whole.

    The word 'criminology' originated in 1890. This term derived from the combination of two Latin words 'crime' and Greek word 'logia', which means scientific study of nature, extent, causes, and control of criminal behavior.

    Generally, it means scientific study of crime, criminal and penal institutions.

    Prof. Kenny, analyzed 'criminology is a branch of criminal science which deals with crime causation, analysis and prevention of crime'. It is branch of knowledge which is related to conduct of human behavior which is prohibited by society. [11]

    According to Coleman and Norris, it is the analysis of nature of crime, the causes of crime, the formulation of criminal laws and law-enforcement, and the ways that crime can be controlled.[12]

    The concept of criminology serves as effective guidelines for formulation of penal policy, it also involves the use 'scientific method to study the variation in criminal law, the reason behind crime and the way individual will react to it. To develop the field of criminology, the most important role is played by sociologists, and it is also drawn on other aspects like psychology, economics, anthropology, biology, statistics and etc, for explaining the causes of criminal behavior and how can be prevented. Study of criminology also involve penology, the main purpose behind this study to reform the relationship between criminal law and criminal justice system.

    Some significant attributes of criminology are:
    • Criminology, concern for crime and criminals, it assumes that no one is bore criminal, and can be corrigible if offered adequate opportunities.
    • It offers background for profession opportunity for police, lawyers, attorneys and judges etc.
    • It also creates conditions to social solidarity as it tries to point out what behaviours are obnoxious and anti-social.
    • It is noted that advancement of scientific knowledge and technology, the complexities of life have also increased.

    Therefore, a socio-legal study which seeks to discover the reason behind criminality and provide suggestions for remedies to reduce crime. After considering the concepts under criminology, it provides effective guidelines for formulations of penal policy.
     

  2. Penology

    Penology is the study of punishment in relation with crime. It is science which deals with the principles and methods of punishments. So it is about theories and methods of punishment for criminal acts.

    Dr P.K. Sen defines it, 'penology lay down the fundamental principles that should guide the state, or the sovereign authority in framing the schemes of punishments.'

    Crime is an act which is prohibited by the state and if still any individual does such act that person with be held liable for punishment.

    Here in this context, punishment means pain, suffering, loss, confinement or any kind of penalty inflicted on a person for an offence committed by hi/her.

    HLA Hart defined, punishment with other jurist named Mr. Bean and Prof. Flew, with five elements such as: [13]
    • It must involve pain or other consequences normally considered unpleasant
    • It must be to an actual or supposed offender for his offence.
    • It must be intentional, administered by human being other than the offender.
    • It must be imposed and administered by an authority constituted by a legal system against offender.

    Different types of punishment which can be awarded by court to a convicted person on under section 53 on Indian Penal Code are death penalty, imprisonment of life, imprisonment which is either descriptive, rigorous or simple, forfeiture of property and fine.

    In early time when there was no proper criminal justice system, the punishments given to the offenders were flogging, mutation, beheading, chopping of limbs, branding, stoning a person to death, pillory, banishment from the society, house arrest and amercement(fine). But when proper studies were done, then it was found that there was no relation between the punishment given to an offender and the crime he/she has committed. In other word the punishment was not in the accordance or we can say there was no logic behind the punishment given.

    And the main problem was that in early period, the types of crimes or the act which comes under the ambit of crime were less and the only theory which was mostly followed for punishing the offender was retributive theory.

    The principal aims of penal science:

    • To bring to light on the ethical bases of punishment, along with the motives and purpose.
    • To make a comparative study of penal laws and procedures through history and between nation.
    • Penology represent a grouping a studies, some of which, dealing with aims and the moral or social justification of punishment.
    • Penology May Also Be Approached From Various Point Of View
    • Administrative penology - study of different institution related
    • Scientific penology - study the techniques which are scientific in nature like rehabilitative
    • Analytical penology - in this the existing penal policies are studied

    The main function of penology is to look after the criminal's mind when is in prison to avoid further crimes.

    Dr. P.K. Sen, a well-known authority on Indian penology has given a comparative account of the old and new penal system.

    The observation is that penology embodies the fundamental principles upon which the states formulation its scheme of punishment. He also pointed out that punishment always lack in exactness because it is concerned with human conduct which is constantly varying according to the circumstances.

    So, he suggested that punishment must dives from case to case, this would not lead to rigidity and can help in modification with changing in society or social change.

    That is why the study of penology is important so, that punishment and the circumstance can be analogized properly, while granting and kind of punishment to convicted.


Changes in Criminal Justice System
After analyzing the concepts of criminology and penology, the need for some changes in the criminal justice system can be felt when both the studies are done together, the lacuna in the system comes into limelight, as we have seen in above study. The main motive of earlier criminal justice system is to give punishment to the wrong doer that to without logic but with the time passes new theories were introduced. Due to which, different factors were considered before granting any punishment to offenders, and the most important growth was that punishment is given in proposition to the crime.

The only aim of older criminal justice system was to provide justice to the victim. But now modification in criminal field has been done, and now the concept of justice doesn't only mean to provide justice to victim but justice to accused is also taken consideration. There are different kinds of rights given even to accused because the society we follow is welfare state and that includes accused also. Further there are defence which provided in certain circumstance which provides kind of immunity to the accused if he/she falls under Indian Penal Code, chapter IV General Exceptions from section 76 to 106.

They are also known as excusable acts, means the one which can be excused for the act committed, for example act done by person who is unsound mind, act committed in intoxication, insanity, infancy or honest mistake of fact earlier none of these factors mattered.

As per legal principle, one is considered innocent until proven guilty.

The reason behind providing rights to accused is that every person has basic human rights. The right given to accused are divided in different stage:

  1. The right of an arrested person before his/her trail begins
    • Right to know about the accusations and charge under Criminal Procedure Code, 1973 in this the accused is entitled to know the details of the offences and charges filed against him/her, section 212.
    • Right against wrongful arrest- the rights of accused are only applicable on Indian when warrant is issued. Section 57 of CrPC and Art 22(2) of constitution provided accused rights that he/she should be produced with 24 hours before judicial magistrate.

    In Joginder Kumar v State of UP and ors[14], Supreme Court held , the arrest should not merely on suspicion about the commission of crime, and police officer should fulfil all required process which is there for bail. Dairy should be maintained and arrest should be avoided except in cases of heinous crime.

    Sangangouda Veeranagovda and ors v State of Karnataka[15], an accused was arrested and died in police custody that too beyond 24hours. He was not presented before magistrate with in prescribed time. So, it was held that it was there duty to produce the accused before magistrate, petitioners were held liable.

    • Right to accused of privacy and protection against unlawful searches, the police officials cannot search any property belonging to accused without warrant.
    • Rights against self-incrimination- under Art 20(3) of constitution a person cannot be compelled to be witness against himself/herself.
      The State of Bombay v Kathi Kaku Oghad and ors [16], in this case it was held that if accused makes a confession without any inducement it won't come under Art 20(3) of constitution.
    • Right against double jeopardy - under art 20(2) of constitution, the accused cannot be punished for one offence again.

      In SV Venkatarama v Union of India[17], an enquiry was made on commissioner Public Service Enquiry act, 1960. He was dismissed later on he was charged under IPC and Corruption Act. So court held, that first process of enquiry was mere an enquiry so here concept of double jeopardy won't be applicable.
       
    • Bail as the right of accused in India[18]- this right provide accused person to be released from jail custody as right.

      Justice V.R in Gudikanti Narasimhulu case 1977[19], stated ' the issue of bail is one of liberty justice, public safety and burden of public treasury, all of which insist that developed jurisprudence of bail is integral to socially sensitized judicial process.'

      In Aftab Ahmad v State of UP[20], court held that an indigent person may be discharged on executing bond with sureties.
       
    • Right to legal aid[21] - the right of an accused person allows him/her to hire a lawyer to defend themselves and if accused cannot afford the state will provide.

      Khatri and ors v State of Bihar and ors[22], when accused who are incapable of engaging lawyers, held that, state is constitutionally bound to provide such aid at every stage. Such rights should not be denied just because of financial constraints or accused did not ask.
       
    • Right to free and expeditious trail[23]- accused have right to fair and fast trail.
       
  2. Rights Of The Accused During Trail
    • Right to be present during trail, section 273 of CrPC, that every document should be recorded in front or presence of accused.

      In case State of Maharashtra v. Praful B. Desai[24], it was held that if by any reason person is not able to be in court physically then video conferencing can be used for satisfying the provision of section 273.
       
    • Right to get copies of documents[25]:
      Accuse have right to get copies of every necessary related to trail. This right is even applicable at the stage when trail haven't started.

      P. Gopalkrishnan v. State of Kerala [26], in this case it was held that right to have copies of documents comes under the right of free and fair trail which an constitutional right under art 20.

      Except the right there are other facilities which are provided to accused or convicted offenders, such as correctional facility, juvenile facility, military prison, political prison, medical facility, open jail system, recreational services, borstal system, prole system, probation, community services and temporary or work release program.


The main reasons for providing these rights to accused are:
Firstly, the misuse of the facilities provided to people, people filing false complaint which makes the accused as victim at the end of the trail because they are the one who has suffered from loss like loss of job, loss of respect and dignity in society and even some time loss can be related to medical or mental.

In case Rajiv Bajaj vs Malkiat Kaur & Another[27], in this case a complaint was filed under section 420 and 406of IPC against the complainant and was arrested without any inquiry or investigation . But later it was found false in nature, due to misuse of laws provided to citizen the complainant had to pass a night in jail, suffered economically and that leads to harm to his reputation as well.

Secondly, after proper interaction with accused it is found that there is reason behind the act they have committed, for example someone has committed murder in self-defence or due to provocation by the victim and also prove that it was just matter of time otherwise that individual is a law abiding person of society who need another chance which can be provided by criminal justice system in form of different program as mentioned above.

After such changes, it is evident that criminology, penology and criminal law are inter-related and cannot function separately. The working of criminal policy essentially depends on the concept of criminology and penology, because the object of criminology is to study crime and criminal behaviour whereas object of penology is study punishment and the treatment of offenders, studying these concepts simultaneously has leads to improvement in the criminal justice system, which include police, court, investigation agencies and lawyers etc.

References:

  • Prof. N.V. Paranjape - Criminology & Penology 18th edition.
  • R.V. Kelkar - Criminal Procedure 6th edition.
  • The Constitution of India - Bare Act.
  • Criminal Procedure Code- Bare Act.
  • Latestlaw.com
  • Criminology. (2009). Retrieved from https://chilot.files.wordpress.com/2011/06/criminology.pdf
  • Criminology Faculty Of Law. (n.d.). Retrieved from - file:///C:/Users/sonia/Desktop/criminology/Material%20CRIMINOLOGY%202017%20for%20upload.pdf
  • SCC online
  • https://scc-amity.refread.com/Members/NoteView.aspx?enc=KDIwMDUpIDEyIFNDQyA0NjgmJiYmJjQwJiYmJiZTZWFyY2hQYWdl
  • https://scc-amity.refread.com/Members/SearchResult.aspx
  • http://scc-amity.refread.com/DocumentLink/Mdg6Qvj4
  • http://scc-amity.refread.com/DocumentLink/tpyrp943
  • http://scc-amity.refread.com/DocumentLink/8gd9DlY2
  • http://scc-amity.refread.com/DocumentLink/381qNjbV
  • http://scc-amity.refread.com/DocumentLink/K2IeA4r7
  • http://scc-amity.refread.com/DocumentLink/9g3mt67S
  • http://scc-amity.refread.com/DocumentLink/4gf8d4vP

End-Notes:

  1. Prof. N.V. Paranjape - Criminology & Penology 18th edition
  2. Paul Tappan, Prof. N.V. Paranjape - Criminology & Penology 18th edition
  3. Professor Keeny
  4. Ibid ,1
  5. Ibid ,1
  6. Ibid ,1
  7. Navet singh Johar & ors v Union of India (2018) 10 SCC 1
  8. Naz Foundation v Government of NCT Delhi 2010 Cri L.j 94 (Del)
  9. Suresh Kumar Kaushal v Naz Foundation AIR, 2014 SC 563,
  10. Josheph Shine v. Union of India (2019) 2 SCC 39 (35) online 1676
  11. Ibid,1
  12. Ibid,1
  13. Ibid,1
  14. Joginder Kumar v State of UP and ors, 1994 AIR 1349
  15. Sangangouda Veeranagovda and ors v State of Karnataka (2005) 12 SCC 468
  16. The State of Bombay v Kathi Kaku Oghad and ors 1961 AIR 1808, 1962 SCR (3)
  17. SV Venkatarama v Union of India 1954 AIR 375
  18. Section 436, Crpc
  19. Gudikanti Narasimuhulu and ors v Public Prosecutor HC, 1978 AIR 429
  20. Aftab Ahmad v State of UP 1990 Cri LJ 1636
  21. Art 22(1) and 39A, Constitution of India
  22. Khatri and ors v State of Bihar and ors (1981) 1 SCC 627
  23. Art 21, Constitution of India and Section 304, CrPc
  24. State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601
  25. 207. Supply to the accused of copy of police report and other documents, CrPC
  26. P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161
  27. Rajiv Bajaj vs Malkiat Kaur And Another 2013

Written By Sonia Kakran

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