In 1984, the Council of Europe inquired about alternative penal measures to imprisonment, receiving responses from 13 member nations in 1985. The results showed that alternatives like fines, suspended sentences, and probation were already in use, with newer practices including community service. While not always replacing imprisonment, these alternatives often did. Evaluations indicated noncustodial sentences were more effective in reducing recidivism than imprisonment. However, further studies are needed on costs, feasibility, and administration, as well as guidelines for noncustodial sanctions. The Seventh Conference of Directors of Prison Administrations adopted a statement on the need for more research in this area.
KEY WORDS
Alternative imprisonment,Probation,Plea bargaining,Fine,Victim
INTRODUCTION
Imprisonment in India has limitations as a means of punishment and rehabilitation, with issues like overcrowding, negative influences, and a lack of focus on rehabilitation. To address these concerns, alternative modes of punishment have been explored, including plea bargaining, compounding of offenses, absolute or conditional discharge, probation, and fines. These alternatives aim to reduce imprisonment, promote rehabilitation, and provide a more effective and humane approach to criminal justice, prioritizing the reintegration of offenders into society.
LEGAL PROVISIONS
Section 360 of Crpc
This section of the law allows a court to release an offender on probation instead of imposing a punishment, considering factors like age, character, and circumstances of the offense. This applies to:
- Offenders under 21 years old convicted of minor offenses
- Women convicted of non-serious offenses
- First-time offenders
The court may release the offender on probation, requiring them to enter a bond and appear in court when called, instead of imposing a sentence. This aims to give offenders a chance to reform and reintegrate into society without serving time.
Section 360(3)
In cases of minor offenses, the court may release the offender without punishment if they have no previous convictions and the offense is trivial or committed under extenuating circumstances. The court considers the offender’s age, character, and physical or mental condition, and instead of sentencing them, gives a warning or admonition, allowing them to go free. This is a lenient approach to help the offender reform without serving time.
ALTERNATIVE TO IMPRISONMENT
The alternative mode of punishment in the current criminal justice system in India which have been discussed in this article are, a)Admonition b) Plea Bargaining, c) Compounding of Offences, d) Absolute or Conditional Discharge, e) Probation, f)Fines
Admonition
The Probation of Offenders Act, 1958, allows a court to release an offender with a warning or reprimand, known as admonition, instead of sentencing them. This applies to minor offenses like theft, dishonesty, or fraud, punishable with up to 2 years’ imprisonment or fine. If the offender has no previous convictions, the court considers the offense’s nature and the offender’s character, and may release them on probation or with an admonition, giving them a chance to reform without a sentence.
Basikesan v. The State of Orissa, AIR 1967 Ori 4 In this case, a 20-year-old was found guilty of an offence under Section 380 of the Indian Penal Code,1860. It was held that the youth had committeed the offence not deliberately and so the case must be applied for Section 3 of the Probation Act and be released after admonition.
Release after admonition with compensation/ Release on probation of good conduct with compensation.
Under the Probation of Offenders Act, 1958, even if an offence is considered minor enough for an admonition, the court can still order the offender to pay compensation to the victim for any loss or injury, in addition to the admonition. The amount of compensation is at the court’s discretion and can also include the costs of the proceedings.
Rajeshwari Prasad v. Ram Babu Gupta, AIR 1961 Pat 19: This case establishes that the amount of compensation is solely at the court’s discretion, and the court can require payment and costs if it finds it reasonable.
Probation on good conduct
Section 4 of the Probation of Offenders Act, 1958 allows a court to release an offender on probation for good conduct, but only if the offence is not punishable with death or life imprisonment. The court considers the case’s circumstances, nature of the offence, and the offender’s character before passing a supervision order for a minimum of one year. A probation officer is assigned to supervise the offender, and the court may require the offender to execute a bond to appear and receive sentence if called upon during the probation period.
Smt. Devki v. The State of Haryana, AIR 1979 SC 1948 – In this case, it was observed that Section 4 would not be extended to the abominable culprit who was found guilty of abducting a teenage girl and forcing her to sexual submission with a commercial motive.
Plea bargaining
Plea bargaining is a process where the accused and public prosecutor negotiate a lesser sentence in exchange for a guilty plea, aiming to reduce court backlog and expedite justice delivery. Introduced in India through the Code of Criminal Procedure (Amendment) Act, 2005, it’s applicable to cases with imprisonment of less than 7 years, excluding criminal cases against women and children.
State of Gujarat V. Natwar Harchanji Thakor, wherein a division bench of the Gujarat High Court ruled that the very object of law is to provide easy, cheap and expeditious justice and therefore fundamental reforms like plea bargaining are inevitable and necessary.[5]
Compounding of offences
Section 320 of the Criminal Procedure Code allows for compounding of offences, where the court permits settlement between the injured parties and the accused in exchange for some gratification. Certain minor offences like mischief and assault can be compounded without court permission, while more serious offences like theft and cheating require court approval. The Supreme Court has held that high courts can quash criminal proceedings in cases of a civil nature or personal capacity, promoting friendliness and peaceful settlement in non-severe cases.
The state of Madhya Pradesh v Lakshmi Narayan wherein the court held that in cases where the offence is primarily of a civil nature the High Court may under inherent jurisdiction under Section 482 compound a non-compoundable offence also.
Absolute or conditional discharge
A discharge under Section 360 of the Code means the court releases the offender without punishment, despite finding them guilty. This can be absolute or conditional, with the latter requiring the offender to sign a bond to appear for sentencing if called upon in the future. The court uses this provision when the offender poses no threat to society, aiming to protect young offenders from being influenced by hardened criminals in prison and promoting their rehabilitation.
Keraj Singh V State of Punjab,the court held that when the character of the offender shows nothing to indicate that he may be a threat to the society and when he is a first time offender and has no past criminal history, the courts shall give him the benefit of the doubt and discharge him under Section 360.
Fine and compensation
Fines are a form of punishment for small-time offenders, aiming to avoid imprisonment and promote rehabilitation. Despite their benefits, such as reducing jail overcrowding, generating state revenue, and adjustable amounts based on the offender’s means, fines are often overlooked. Courts can impose fines considering the offender’s ability to pay, as seen in the case of State v Basappa, where the court ruled that fines should be proportionate to the offender’s financial capacity.
AIMS OF ALTERNATIVES TO IMPRISONMENT
- Avoid unnecessary use of incarceration
- Avoid the negative effects of imprisonment such as institutionalization;
- Rationalize criminal justice policies;
- Provide greater flexibility consistent with the requirements of social justice, the nature and gravity of the offence, the rehabilitative needs of the offender, and the protection of society;
- Encourage and enable changes in people’s lives;
- Provide greater community involvement in the management of criminal justice;
- Develop a sense of responsibility to the community;
- Avoid institutionalization by promoting early release and reintegration into society;
- Enhance the prospects of social inclusion;
- Reduce recidivism;
- Reduce costs.
POTENTIAL RISK OF ALTERNATIVE TO IMPRISONMENT
- Community sanctions may be considered a ‘softer’ option by judges;
- The underlying ideological base, as well as the aims and objectives of non-custodial measures may not be clear;
- A lack of financial support and organizational infrastructure to support and oversee the implementation and monitoring of community measures;
- The problem of stigmatization when imposing alternatives to imprisonment;
- Lack of popularity among politicians and the media;
- Lack of public confidence in the effectiveness of community sanctions;
- Net widening effect and increased social control, which arises when community sanctions are imposed in cases where no sanction would have been imposed (adapted from Stefani et al., 2014
LEGAL VALIDITY OF ALTERNATIVE TO IMPRISONMENT
- Recognized under CrPC: Alternatives like plea bargaining, compounding of offenses, and probation are recognized under the Code of Criminal Procedure (CrPC), giving them legal validity.
- Court upholdance: Courts in India have upheld these alternative modes of punishment, acknowledging their role in reducing imprisonment and promoting rehabilitation.
- Legislative backing: The Indian legislature has introduced amendments and provisions to support alternative modes of punishment, demonstrating a shift towards a more humane approach to criminal justice.
- Focus on rehabilitation: These alternatives prioritize rehabilitation over punishment, aligning with the broader goal of the criminal justice system to reform offenders and reintegrate them into society.
RECENT DEVELOPMENT
- .SC sends couple to 6 months in jail for bigamy, orders alternate prison time to protect child
- Community Service’ Under The BNS – An Incomplete Yet Promising Penologocial Advancement.The BNS, 2023, has for the first time introduced ‘Community Service’ as an alternate to imprisonment[1]. This welcome step marks a significant shift in the sphere of penology under the Indian criminal justice system.
CONCLUSION
India’s criminal justice system is transitioning towards alternative sentencing, but its infrastructure requires strengthening. Courts should liberally apply discharge provisions, establish robust probation supervision, and utilize fines with flexible payment options. Additionally, introducing community service as a penalty can benefit society and aid offender rehabilitation, aligning with global best practices.
PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
WRITTEN BY: Koustav Ghosh
