CRIME AND PUNISHMENT

The concept of punishment is a socio-legal concept. It aims and objectives are derived from
sociological perspective and it gets valid recognition and enforceability through a legal
framework. “In any given society, there are a set of norms conceived through the social set up
which are later recognized by laws and converted into statutory laws which require an
institution of regulation to protect the compliance of these socio-legally established norms.”1
“Punishment is not considered as a corollary of law but of law breaking.”2 “It is here, when
the concept of punishment seeks to protect and regulate the institution of norms and ensures
sanctioning in case of any transgression from it by imposing unpleasant consequences on the
offender.”3 “It is considered as a medium of expression of social values as well as helps to
meet penological ends.”4 This troublesome result highlights different motives and contexts
which can be identified as goals of punishment which it exhibits and seeks to achieve.
The important components of punishments as suggested by H. L. A. Hart: “the offender
should be inflicted with pain and troublesome outcome, the pain must be linked with the
offence committed by the offender, shattering of the societal norms must be the response, and
the administration must be done by legal authority by following full procedure”.5 A lot of
criticism have been done as this definition is unable to recognize the elements which
differentiate the punishment which are facilitated for civil wrong vis-à-vis criminal wrong as
these might be having variant characteristics & a different intensity which totally depends
upon the characteristic of the offence committed with the first being indemnifying in nature
whereas latter being penal. However, in regards of the present research, the definition given
facilitates a fine start so as to get a fair view about what is punishment all about.
With the development in society the type and manner of punishments keep on changing. If
we talk about previous time the punishments were very brutal and harsh due to which they
were banished on the humanitarian grounds. In previous times for committing even smallest
of crime capital punishment was given, but with changing times the punishments were given
according to the nature of crime. In the case of Hazara Singh v. Raj Kumar (2013) 9 SCC
516, the court has observed that “it is the duty of the courts to consider all the relevant factors

1
Spohn, C., How do judges decide? The search for fairness and justice in punishment (2nd ed.,1939) Thousand
Oaks, CA: Sage.
2
Mabbott, J. D. “Punishment” “Mind”, (1939)48(190), 152-167.
3
Greenawalt, K., “Punishment” “The Journal of Criminal Law and Criminology”, (1983)74, 343- 362.
4
Ashworth, A. ,Sentencing and criminal justice (5th ed., 2012). Cambridge, UK: Cambridge University Press.
5
Ibid 1.
to impose an appropriate sentence.”6 Much discretion with regard to sentencing policy has
been given to the judiciary by the parliament with the condition that full care and caution
must be followed. The gravity punishment given must totally correlate the characteristic and
the type of the offense. The landmark cases, precedence and laws can be used to calculate the
magnitude of offence and then offer punishment in accordance so as to give an impartial
verdict. It has been further observed by the court, the “cardinal principle of sentencing
policy”7 which reflects the proportionality of punishment with the gravity of crime. Much
stress has been laid by the Supreme Court frequently on the “cardinal principle of sentencing
policy”8 in various cases. The concept of Punishment is rotatory as the relevance of it is
signified by the present concepts and ideas of the “penal acts and social justice at a given
point in the society.”9
Taking the present-day scenario in India, there are variety of penalties being enlisted and
mentioned under “Section 53 of the IPC, 1860”10 such as “death, life imprisonment, simple or
rigorous imprisonment, fine, and property forfeiture.”11 The felicitousness of these
punishments rely on the gravity of the act which has been performed and the results which
are intended to be achieved. The basic aim of this project is, “fine” which will be used to
show its major importance in the field of offence i.e. its infliction in field of punishments.
“To analyze the role and efficiency of fine as a punishment in criminal law, it is essential to
understand the dynamics of “fine” as a concept and to put it through the jurisprudential test of
penological goals.”12
Penalty is used differently in different field of law (e.g., civil and criminal). “However,
because the generic goals of punishment differ depending on the nature of the offense, so
does with respect to fines as a form of punishment.”13
The definition is “Fine” is a sum paid for certain wrongful behaviour. “One of the field
studies was conducted on the parents in a day care school where in the initial weeks, there
was no fine imposed if the parent came late to take its children; however, for the next few
weeks, a certain amount of fine was imposed, which, interestingly, resulted in the hike in

6
Hazara Singh v. Raj Kumar (2013) 9 SCC 516.
7
Ibid 6.
8
Ibid 6.
9
Ibid 9.
10
Section 53 of the IPC, 1860
11
Section 53 of the IPC, 1860
12
Anupama Sharma, ‘Fines as a Punishment in Indian Penal Code, 1860: A Jurisprudential Failure or
Commodification of an Offense?’ 2016, Vol. 32(3) 243 Journal of Contemporary Criminal Justice, 263.
13
Ibid 9.
number of parents coming late.”14 It can be concluded from the pretext that fine can have an
imposition favourably or unfavourably on the activity of the people who are made a part of
the society in which they function. It has been studied and analysed in various literature that
the field of study i.e. infliction of penalty mainly highlights the deduction in the field of
present literature in the endeavour of commission rather than focusing on the various other
effects, “which is the increase in the law breaking when punishment is treated as a price paid
for the offence leading to its commodification, as has happened in the above discussed field
study.”15
In the earlier times, before the foundation of criminal laws, imposition of compensation had a
major and important role to play so as to resolve any dispute. The disputes which were held
Privately were resolved through compensatory fine settlement which was very strong that it
not only made up for the losses suffered but also avoided the retaliation to not just make up
for the loss but also the quarrels which may be too harsh. The imposition fines had a dual role
to play i.e. both reimburse as well as penal. “The Mosaic law, early Roman laws, and Anglo
Saxon laws exhibited the similar framework where even if private disputes were given a
public regulation, still the dominant remedy was compensatory through monetary
sanctions.”16 Due to the new regulations hitting the development of society the state was
deemed to be the wrongdoer for the private offences. “With the subtle development of public
regulation, the idea of treating few private wrongs as wrongs toward public/state was
accepted, which demanded compensation to the state as a remedy because the injury was now
deemed to be caused to the state.”17 “With the new change in conquests, trend started to
change, and soon in the reign of William, the conqueror, punishment took a harsher leap
where as a result of commission of a wrong, the guilty was left at the mercy of the king.”18
As a result of all this the concept of permanent termination of liberty of the person so as to
make a hault to such kind of wrongs came into picture. “This “permanent” imprisonment
however in the early common law could be reduced to an early release through a private
settlement with the kings by paying price which was formally termed as “fine.””19 “This was
used as a strategy by kings to furnish themselves funds rather than to meet any penological

14
Gneezy, U., & Rustichini, ‘A fine is a price’ (2000) The Journal of Legal Studies, 29, 1-17.
15
Ibid 9.
16
Pollock, F., & Maitland, F., A history of English law (2nd ed., 1895) Cambridge, UK: Cambridge University
Press.
17
Ibid 9.
18
Ibid 13.
19
Ibid 9.
objectives or theoretical purposes of punishment.”20 The enforceability of Penal act an act of
1383 which certified the change in the character of fine from being a settlement mechanism
came into picture. “The linguistic changes were soon observed in other statutes and
commentaries.”21 The imposition of Fines or monetary punishments has been under the
concept of civil wrong from ages. It has been a wider belief that the criminal wrong is related
to imposition of punishment and civil wrong is related to imposition of fines. The especial
feature of criminal law is imprisonment. “In the Indian context, going by the ancient criminal
laws based on religion, the punishment given to the accused was not pecuniary in nature;
instead it was imprisonment and death penalty, and cases where monetary sanctions (fines)
were inflicted, it used to be in form of fine and not compensation as it would go to the royal
treasury.”22 If we talk about the present day scenario even fines are imposed on commission
of criminal wrong due to the changes in the ideologies and the changing societal concept.
“Censure formed a very important type of punishment where verbally the outrage toward the
offender was exhibited, and this component lacked in fine as a punishment.”23 According to
Mr. J. R. Lucas fine and penalty can be differentiated, but in practical application these two
things are equated. According to him penalty encloses fine. He says that, mala in se offenses
engulf punishments and mala prohibita engulfs penalty. R. J. Spjut highlights that for
characterisation of the offences which have infliction of punishment and penalties are
restricted only to qualitative differentiation, then the differentiation on the basis of “mala in
se and mala prohibita classification”24 fails to take a stand. “In that case, the difference will
be of degree (severity) wherein punishment is considered to be severe and penalty less
severe.”25 Yet another kind of classification is punishment is for right in personam whereas
fine is for right in rem. “Because penalties relate to transgression of standard of conduct
relating to specific obligation, it does not indicate the existing reluctance to abide by the
rules, thereby failing at censuring the transgression.”26 “Feinberg too, in his article on
expressive function of punishment dwells in the question of difference between punishment
and penalty.”27 Feinberg is of the opinion that punishment inflicts a lot of hardship and pain.
“This consequentially disallows speed tickets, fines which are comparatively less severe (than

20
Westen, D. A., Fines, imprisonment, and the poor: “Thirty dollars or thirty days.” California Law Review,
(1969), 57, 778-821.
21
Ibid 13.
22
Gupta, R. P. D. (2007). Crime and punishment in ancient India. New Delhi, India: Bharatiya Kala Prakashan.
23
Ibid 18.
24
Ibid 9
25
Spjut, R. J., “Criminal law, punishment, and penalties”, Oxford Journal of Legal Studies, 5, 33-46.
26
Ibid 21.
27
Ibid 9.
imprisonment) to be considered as punishment and rather would fit appropriately in the
category of penalty.”28 The word penalty maybe called a price tag, so whosoever is willing to
commit an act of civil nature has to pay the price in form of penalty. “He further points that
penalty carries a miscellaneous character, whereas punishments carry a specific characteristic
which is an expressive function of resentment and indignation.”29 Punishment may
sometimes result in revengeful results by the one who is been inflicted with punishments.
“Another difference is in the regulative and punitive approach, where penalty is largely
regulatory, whereas punishment carries the punitive approach.”30
“It is often argued that fine is an ideal penal measure as it has the potential of exhibiting
varied degrees of severity and liability.”31 Judith A. Greene proposed that if fines are
efficiently structured, they can be successfully employed as an intermediate penalty (Greene,
1988). “Fines have the potential of carrying deterrence, compensatory, and other goals of a
punishment. It is flexible enough to adjust according to the severity of the offense and also
carries less administrative and supervisory costs.”32 “However, if a punishment has to flow in
form of a fine, then the fine should be of equivalent worth to satisfy the means which are
achieved by imprisonment.”33

28
Feinberg, J., “The expressive function of punishment” The Monist, (1965), 49, 397-423.
29
Ibid 24.
30
Ashworth, A., Sentencing and criminal justice (5th ed., 2012), Cambridge, UK: Cambridge University Press.
31
Ibid 26.
32
Hirsch, A. V., & Ashworth, A., Principled sentencing (1992), Boston, MA: Northeastern University Press.
33
Posner, R. A., An economic theory of the criminal law, Columbia Law Review, (1985), 85, 1193-1231.