Kerala High Court
Raman And Anr. vs Francis And Ors. on 19 October, 1987
Equivalent citations: 1988CRILJ1359
ORDER Chettur Sankaran Nair, J.
1. The petition at the instance of the injured in C.C. 184/84 in the court of Judicial Magistrate of First Class, Cochin is to 'enhance the sentence'. Court below found that on 17-6-83 at 11.30 p.m., respondents in furtherance of their common intention trespassed into the property of first petitioner and caused grievous hurt to him, requiring hospitalisation for about four weeks (committing?) offences punishable under Sections 447, 323, 324 and 326 read with Section 34 IPC. First petitioner, inter alia, sustained a fracture of the nasal bone. The Magistrate thought that a sentence of imprisonment till the rising of court would meet the ends of justice; petitioners thought otherwise, and moved this Court under Section 482 of the Code. Counsel for accused-respondents submitted that the case be remitted to the trial court for imposing an appropriate sentence instead of revising in calendar.
2. A question of importance touching an area of extreme sensitivity arises for consideration. Sentencing policy is of vital importance in the dispensation of criminal law, and its resonant timbre determines the quality of sentencing jurisprudence.
3. Criminal law has a social purpose to achieve and, it is in the realms of corrective jurisprudence. In the words of Roscoe Pound:
Law regulates social interests, arbitrates conflicting interests, claims and demands. Criminal law reflects the wishes of interest groups Friedman (Law in Changing Society) observed:
State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of a society Jerome Hall (Studies in Jurisprudence and Criminal Theory) states:
Security of person and property of all citizen is an essential requisite of good Government, and this can be achieved through the instrumentality of criminal law
4. Having brought into sharp focus, the norms of criminal justicing system, its modalities and the manner in which sentencing system should be oriented should be considered. The corrective machinary makes itself felt through its sentencing process, by deft modulation of sentences, stern where it should be, and tempered with mercy where it warrants to be. This is an area where precise scales or evaluation standards are not available. A computerised situation cannot be thought of. Changing vicissitudes have reigned the sentencing scene. From a draconian sentencing process which led to the hanging of a 9 year old girl in the 16th century, extreme attitudes of reformation and curative process had gained currency. But sanctions have always evoked responses. As Jack Gibbs in "Crime Punishment and Deterrence" stated:
Any legal theory of behaviour must assume that people by and large do not want to be punished and will act so as to avoid fines, jail, whipping or electric chair. That means a threat of real punishment will deter Evil of punishment must exceed the advantage of the offence. The classical school of criminology was based on hedonistic psychology. Man governs his behaviour by considerations of pleasure and pain. John Spenser said (White Collar Crime):
Algebric sum of pleasure and pain must be balanced The first known theory of criminal behaviour was that of Baccaria, which was the hedonistic doctrine of criminology.
5. There is a cross cultural conflict. The area of crime is enlarging. Gilded crimes and white collar offences are new additions. Narcotic peddling and white slave traffic, professional terrorism and mafia crimes have gained currency. Living law must find answers to new challenges. Courts have evolved new heads of public policy. Viscount Simonds, highlighted the imperatives and identified new heads of Public Policy in what is known as the Lady's Directory Case (1961) 2 All ER 446 Shaw v. D.P.P. Reformative and curative jurisprudence have been found to be not entirely responsive. Deterrence is surely a component of the sentencing system. Even the refutation of hedonistic psychology would not justify rejection of deterrence argument. In the words of E. A. Ross (Social Control):
If one rascal out of 20 men might aggress at will, the higher forms of control would break down. Man after man would be detached from the honest majority. This deadly contagion of lawlessness would spread till social order lay in ruins. Law therefore is still the cornor-stone of the edifice of order Deterrence must form part of sentencing process. In the words of Parker, C.J., protection society and stamping out of criminal adventure must be the object of law and this must be achieved through a proper sentencing policy. The same view was voiced by Butler, J. of the U.S. Supreme Court in Nice v. Minnesota 283 U.S. 697 (sic). It was said:
Society could not long endure under such threats. If the courts did not protect the injured, the injured parties would then resort to private vengeance Overzealous judicial dispensation can invite ridicule.
6. Even countries which had experimented with soft sentencing norms are beating a retreat. "Dangerous offenders - the exclusive target of justice" (Harward University, 1984) notices the spurt of crimes in America and need for deterrence. It is said that one half of the people in metropolitan areas are afraid to go out alone at night. 35 to 40% of Americans have to own a gun for protection. 150 Million Americans pay 11 Billion dollars for insurance, and 2.6 billion dollars were spent on private security agencies in 1977. In Stacks v. Boyle (1951) 342 US 1, Warren C.J. referred to the high rate of crimes and its impact. Rand Prison Survey indicated that deterrence has its impact on the crime situation. American violence and public policy (Lynn A Curtis Yale University 1985), also noticed the increase in violent crime rate in the last 15 years and highlights the need to react to crime, to control it. Attorney General's Task Force on Violent Crimes (1981) noticed the alarming and continuous increase in violent crimes, and doubted the efficacy of the sentencing system. This was identified as a national first priority (Katzen Black Commission).
7. The Supreme Court of India has laid stress on the need for deterrent sentences. Pronouncements of the Supreme Court of this decade bear proof to this. In State of Punjab v. Mann Singh , A.P. Sen, J. observed:
It is the duty of the court in every case to award a proper sentence having regard to the nature of the offence, and the manner in which it was committed Supreme Court in early 1980s, more than once pointed out that inadequate sentences can invite disrespect for law. Again, in State of Karnataka v. Krishna , the court highlighted the damage that 'flea-bite' sentences can cause. In Mahesh v. State of M.P. , Khalid, J. commenting on inadequate sentences said:
To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
Still later, in Asharfi Lal & Sons v. State of U.P. , it was observed:
Failure to impose a death sentence in such grave cases where it is a crime against thesociety... will bring to naught the sentence of death provided by Section 302 I.P.C. As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death... is confirmed
8. Same strain of thought is reflected elsewhere Modern Law Review 1978 Vol. 41 P. 544:
A minimum requirement in a rational system is that there should be some degree of correspondence between the crime committed and crime for which the defendant is convicted. As Kuh put it 'responsibility must be for what one has done and not for something far less serious... when the two fail to be Jibe, scorn and disrespect for the folly of law is likely to be the harvest.
Streatfield committee and Green on 'Judicial attitude on sentencing' also throw light on this aspect - It is relevant to ask, 'who should be the principal beneficiary of criminal punishment, the community or the offender?' Long term institutional effects cannot be lost sight of.
9. Inadequate sentences can do harm to the system. Law must meet the challenges that criminalisation offers. Maudlin sentiments, bordering on tottering weakness cannot masquerade or reformative sentiments cannot do service for a rational sentence system. Misconceived liberalism cannot be countenanced. It is well to bear in mind the counsel of Benjamin Cardozo, J. in the exercise of discretion to the Judge:
He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodised by analogy and disciplined by system (The Nature of Judicial Process.) The court must plainly discharge its duties, and the role of deterrence could be in no doubt after the Supreme Court has spoken.
10. Judged in the light of these principles, the sentence imposed has been 'flea bite' or worse, and the magistrate below in his sentencing disposition, has failed in his responsibilities. The sentence imposed by the court below is set aside, and the case is remitted to the trial court, for imposition of an appropriate sentence. The Registrar of this Court will cause a copy of this order to be communicated to the magistrate concerned, wherever he is.