Definition of Crime:
According to 0xford
Advanced Learner’s dictionary activities that involve breaking the law: (Ref. PP-297, Oxford Advance Learn Dictionary.)
Crime: Lectures on the Penal Code with
leading cases.
Crime:
The word “Crime” has
not been defined in the Bangladesh Penal Code. In its broad sense, however, it
may be explained as 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 the law.
According to Osborn,
crime is an act or default which tends to the Prejudice of the community, and
forbidden law on pain of punishment inflicted at the suit of the State. In its
legal sense, therefore, crime includes such offences being acts or defaults
which have been made punishable by the Bangladesh penal code.
It is apparent from
the above that there is nothing which by itself is a crime, unless it has
declared by the legislature as punishable.
The authors of the Code observed:
“We can not admit
that a penal Code is any means to be considered as a body of ethics, that the
Legislature aught to punish acts merely because those acts are immoral, or
that, because an act is not punished at all it follows that the Legislature
considers that act as innocent. Many things which are not punishable are
morally worse than many things which are punishable. The man who treats a
generous benefactor with gross ingratitude and insolence deserves more severe
reprehension than the man, who aims a blow in a passion, or break’s a window in
a frolic; yet we have punishment for assault and mischief, and none for
ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature
from death may be a far worse man than the starving wretch, who snatches and
devours the rice, yet we punish the letter for theft, and we do not punish the
former for hard heartedness”.
Crime is, therefore, relative
conception. Different societies view different acts of commission and defaults
as crime in different ages and according to different localities and
circumstances. There are examples in History where heresy, i.e. religious
belief other than that recognized by the State, has been treated is an offence
punishable with death, but no nation can today think of prescribing punishment
merely for holding such views.
Similarly, adultery
is a civil offence against the law of matrimony England and leads to divorce,
the husband having claim to compensation from the co-respondent. But in
Bangladesh it is a crime within the meaning of section 497 of the Penal Code
and is punishable with imprisonment of either description for a term which may
extend to five years, with both the Code however absolves the wife from
punishment as an abettor and excuses her infidelity on account of some
peculiarities in the state of society in this country where, according to the authors
of the Code, a woman is sometimes married while still a child and is neglected
for other lowers while still young. They were therefore, reluctant to make laws
for punishing the inconstancy of the wife, while the law admitted the privilege
of the husband to polygamy. We may profitably quote here the observation of the
framers of the Code:
Though we well know
that the dearest interests of the human race are closely connected with the
chastity of women and the sacredness of the nuptial contract, we can not but
feel that there are some peculiarities in the state of society in this country
which may well lead a human man to pause before he determines to punish the
infidelity of wives. The condition of the women of this country is unhappy,
very different from that of the women of England and France; they are married
while still children; they are often neglected for other wives while still
young. They share the attentions of a husband with several rivals. To make laws
for punishing the inconstancy of the wife, while the law admits the privilege
of the husband to fill his Zanana with women, is a course which we are most
reluctant to adopt. We are not so visionary as to think of attacking, by law,
an evil so deeply rooted in manners of the people of this country as polygamy.
We leave it to the slow, but we trust the certain, operation of education and
of time. But while it exists, while it continues to produce it’s never failing
effects on the happiness and respectability of women, we are not inclined to
throw into a scale, already too much depressed, the additional weight of the
Penal Law.
The recognition of a
crime, therefore, Varies with public opinion of a given society at a given time
and there can not be any rigid or absolute criterion to determine it. Ideas may
be change; standards of ethical morality may differ, and with them may differ
the recognition of any offence by the Legislature within the ambit of its Penal
Code. It has, therefore been rightly said the crime is not a static quantity,
nor can it be considered in absolute terms. There is actually no such thing as
a crime in sea or crime by itself. Tort or civil wrong may be distinguished
from crime. Tort differs from crime both in principle and procedure. In the
first place, the former constitutes an injury or breach of duty to an
individual or individuals concerning his or their private or civil rights,
while the latter constitutes a breach or public rights and duties affecting the
whole community considered as a community. In the second place, in tort the
wrong doer has to compensate the aggrieved party, but in crime he is punished
by the State in view of the interests of the society.
In the third place,
in tort the action is raised by the aggrieved party, but in crime the State is
supposed to be injured by wrong to the community and as such the proceedings
are conducted in the name of the State, and the guilty person is punished by
it.
And, lastly, in tort
or civil wrong intention on the part of the wrong doer is immaterial, but
criminal intention is an essential element in crime.
Although these two
kinds of wrongs are clearly distinguishable, yet many crimes include a tort or
civil injury; but every tort does not amount to a crime, nor does every crime
include a tort.
For example,
conversion, private nuisance, wrongful distress, etc, are merely torts.
Similarly, forgery, perjury, bigamy, homicide, etc. are examples of crimes but
not torts; where as assault, false imprisonment, false charge, defamation, etc.
are crimes as well as torts. In all cases where the same wrong constitutes both
a crime and a tort, the criminal and civil remedies are concurrent. The wrong
doer may be punished a criminally and also compelled in a civil action to pay
damages to the injured person.
There is no
limitation to prosecute a person for an offence. Nullum tempus occur it regi
(Lapse of time does not bar the right or the crown). As a criminal trail is
regarded as an action by the Government, it may be brought at any time. It
would be odious and fatal, said Bentham, to allow Wickedness, after a certain
time, to triumph over innocence. No treaty should be made with malefactors of
that character. Let the avenging sword remain always hanging over their heads.
The sight of a criminal in peaceful enjoyment of the fruit of his crimes,
protected by the laws he has violated, is a consolation to evil doers, an
object or grief to men of virtue, a public insult to justice and to morals. The
Roman Law, however, laid down a prescription of twenty years for criminal
offences as a rule. There is no period of limitation for offences which fall
within the four corners of the Penal Code.
Ref:
- Tappan Paul W: Crime, Justice and Correction, P-80
- Gillin J.L : Criminology and Penology, 3rd
Ed. P-6 - William Blackstone: Commentaries, Vol-iv, P-5.
According to Kenny “
Crimes are wrongs 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”. But this definition has evoked criticism on the ground that there are
indeed a number of compoundable offences that are remissible by the consent of the
parties.
Expressing his view
on definition of crime, Roscoe Pound commented that “a final definition of
crime is impossible, because law is a living and changing thing, which may at
one time be based on sovereign will and at another time on juristic science,
which may at one time be uniform and at another time give much room for
judicial discretion, which may at one time be more specific in it’s
prescription and at another time much more general.”
Cross & Jones
define crime as a legal wrong the remedy for which is punishment of the
offender at the instance of the State.
John Gillin defines
crime as an act that has been shown to be actually harmful to the society, or
that is believed to be socially harmful by a group of people that has power to
enforce its beliefs and that places such at upon the ban of positive penalties.
Thus he considers crime as an offence against the Law of the Land.
According to
Blackstone, a crime is an act committed or omitted in violation of a Public Law
either forbidding or commanding it. He, however, realized at a later stage that
this definition may be proved to be misleading because it limits the scope of
crime to violations of a “Public Law” which normally covers political offences
such as offences against the State. Therefore, he modified his definition of
crime and stated,” a crime is a violation of the ‘Public rights and duties’ due
to the whole community, considered as a community”.
Stephen, the editor
of Blackstone’s commentaries, further modified the above definition and said “a
crime is a violation of a right, considered in reference to the evil tendency
of such violation as regards the community at large”
Thus both, Blackstone
and Stephen stress that crimes are breaches of those lows which injure the
community’.
Stephen further added
that ‘crime is an act which is both forbidden by law and revolting to the moral
sentiments of the Society”.
Rejecting this
judicial concept of crime, the well known Italion criminologist Raffeale
Garofalo Preferred sociological definition of crime and stated that crime is an
act which offends the basic sentiments of ‘pity’ and ‘probity’. Yet another
view about crime is to treat it as an anti social behavior which is injurious
to society.
Supporting this
contention Sutherland characterizes crime as a symptom of social
disorganization. The tendency of modern sociological penologists is, therefore,
to treat crime as a social phenomenon which receives disapprobation of the
society.
According to Donald
Taft, ‘Crime is a social injury and an expression of subjective opinion varying
in time and place”.
In the words
Halsbury, ‘Crime as an unlawful act which is an offence against the public and
the perpetrator of that act is liable to legal punishment.”
Tappan has defined
crime as, ‘an intentional act or omission in violation of criminal law,
committed without any defense or justification and penalized by the law as felony
or misdemeanor.’
A precise definition
of ‘Crime’ is by no means an easy task. Generally speaking, almost all
societies have certain norms, beliefs, customs and traditions which are
implicitly accepted by its members as conducive to their well-being and heathy
all round development. Infringement of these cherished norms and customs is
condemned as antisocial behaviour. Thus many writers have behavior. Thus many
writers have defined ‘Crime’ as an antisocial, immoral, or sinful behaviour.
However, according to the legal definition, ‘Crime’ is any form of conduct
which is declared to be socially harmful in a State and as such forbidden by
law under pain of some punishment.
Ref: Rekh Balu’s
article on cyber crime published in Futurist, dated Jan-17, 2001.
From the foregoing
definitions, it may be said that a crime is a wrong to society involving the
breach of a legal wrong which has criminal consequences attached to it i.e.
Prosecution by the State in the Criminal Court and the possibility of
punishment being imposed on the wrongdoer.
It is significant to
note that though the legal definition of crime has been criticized because of it’s
relatively and variable content yet Halsbury’s definition is perhaps the most
acceptable one as compared with other definitions because of its elaborate and
specific nature and element of certainty. Further, it also provides for the
machinery and produce to determine the violations and to identify the
offenders.
CLASSIFICATION OF CRIMES:
The existence of
crime in a society is a challenge to its members due to its deleterious effect
on the ordered social growth. In fact, it leads to a colossal waste of human
energy and an enormous economic loss. Therefore, with the advance in the field
of criminology and behavioral sciences, efforts are being constantly made to
work out a commonly acceptable classification of crimes and criminals for
providing a rational basis of punishment for various categories of offenders.
There are a variety
of crimes such as –
- Violent personal crimes;
- Occasional property crimes;
- Occupational crimes;
- Political crimes;
- Public order crimes;
- Conventional crimes, Organized crimes;
- Professional crimes;
- White collar crimes;
- Sexual crimes;
- Crimes against property;
- Crimes against person;
- Crimes against decency;
- Crimes against public order etc.
Broadly speaking,
these may be categorized into three heads, mainly,
I.
Offences falling under Code of Criminal Procedure;
II.
Offences under local or special laws or enactments.
Some writers have
preferred to classify crimes into-
I. Legal crimes:
Legal crimes can be termed as traditional crimes such as-
- Theft;
- Robbery;
- Docoity;
- Rape;
- Hurt and
- Rioting etc.
II. Political Offences:
The Political
offences are those which are motivated politically or committed in the
violation of the election Laws or norms set out for the politicians in course
of their political activities or to achieve something by way of illegal means.
III. Economic crimes:
The
Economic crimes include white collar offences such as –
- Tex;
- Evasion;
- Smuggling;
- Prostitution;
- Gambling;
- Foreign
exchange violations;
III.
Social
Crime:
Social
crimes are those which are committed under social legislation such as-
·
The Child Marriage Restraint Act, 1978;
·
The Protection of civil Rights Act, 1955;
·
The Immoral Traffic Act, 1956;
·
The Indecent Representation of women Act, 1986;
·
The Dowry Prohibition Act, 1961;
·
The Juvenile Justice Act, 2000;
·
The Scheduled Castes and Schedule Tribes Act, 1989 etc.
V. All other
remaining crimes which are committed under local or Special Acts, are termed as
miscellaneous crimes, for example, offences under the Prevention of Food
Adulteration Act, 1954; Drugs Act, 1940; Consumer’s Protection Act, 1986;
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988 etc.
III Classification of
offences under the Penal Code:
Under the Penal Code,
Various offences have been classified into seven broad categories on statistical
basis. They are:
- 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 servants.
This classification
seems to be more rational and elaborate from the points of view of
administration of criminal law and penal justice.
EARLY CONCEPT OF CRIME:
The Concept of Crime:
Man by nature is a
fighting animal hence to think of a crimeless society is a myth. Truly speaking
there is no society without the problem of crime and criminals. The concept of
crime is essentially concerned with the social order. It is well known that man’s
interests are best protected as a member of the community. Everyone owes
certain duties to his fellow men and at the same time has certain rights and privileges
which he expects others to ensure for him. This sense of mutual respect and
trust for the rights of others regulates the conduct of the members of society.
Although most people believe in ‘Live and let Live’ policy yet there are a few
who for some reason or the other, deviate from their normal behavioral pattern
and associate themselves with antisocial elements. This obviously imposes an
obligation on the State to maintain normally in society. This orduous task of
protecting the law abiding citizens and punishing the law breakers vests with
the State which performs it through the instrumentality of law. It is for the
reason that Salmond has defined law as ‘rule of action’ regulating the conduct
of individuals in society. The conducts which are prohibited by the existing
law at a given time and place are known as wrongful acts or crimes whereas
those which are permissible under the law are treated as lawful. The wrong-doer
committing crime is punished for his guilt under the law of the land.
Early concept of Crime:
Ever since the down
of human civilization crime has been a baffling problem. There is hardly any
society which is not beset with the problem of crime. Commenting on this aspect
of crime problem, Emile Durkheim in his treatise ‘Crime as a normal
phenomenon’s says, “a society composed of persons with angelic qualities would
not be free from violations of the norms of that society. In fact, crime is a
constant phenomenon charging with the social transformation. He argues that
crime is a necessary feature of every society as it is a fundamental condition
of social organization. Different groups have different and often incompatible
interest in the society which gives rise to conflicts which eventually result
in the incidence of crime.
Historically, the
concept of crime seems to have always been changing with the variations in
social conditions during the evolutionary stages of human society. This can be
illustrated by the fact that early English Society during 12th and
13th centuries included only those acts as crimes which were
committed against the State or the religion. Thus, treason, rape and blasphemy
were treated as crime whereas ‘murder’ was not a crime.
Ref: See Oppenhimer
on Rationale of punishment’.
Primitive societies
did not recognize any distinction between the law of crime and torts but only
knew law of wrongs. Commenting on this point Fedrick, Pollock and Maitland
observed that the English society prior to tenth century confused crimes with
torts because the bond of family was for stronger than that of the community,
the injured party and his kindred could avenge the wrong by private vengeance
and self-redress. During this period, recourse to legal remedy was considered merely
an optional alternative to self redress. The wrong-doer was supposed to offer
compensation to the person wronged, the quantum of which depended on the extent
of the wrong caused and the status of the sufferer. The payment of compensation
known as ‘bot’ (payment of compensation to the victim) washed away the guilt of
the wrongdoer and relegated him to a position as if he had done no wrong. The
early Anglo-Saxon Lau’s contained minutest details of compensation which was
payable for different wrongs with a view to helping the person wronged in
seeking redress.’
However, if ‘bot’ was
refused, the law had no other means to enforce its payment. In that event it
was for the victim or his kindred to prosecute a ‘blood-feud’ against the
wrongdoer and law could help him only by declaring the wrongdoer as an ‘outlaw’
who could be chased and killed by anyone like a wild beast.
Besides the offer
which could be atoned by ‘bot’ (payment of compensation to the victim) there
were certain other wrongs which entailed additional fines payable to the king.
That apart, there were certain botless offences for which no amount of
compensation could wipe out the guilt and the wrongdoer had to undergo
punishment. Such cases were punishable with death, mutilation or forfeiture of
property to the king. House breaking, harboring the outlaws, refusing to serve
in the army and breach of peace etc; were some of the early ‘botless’ offences
which entailed compulsory punishment under the law of the State.
As a matter of fact
it is from these ‘botless’ offences that the modern concept of crime has
emerged. The number of ‘botless’ offences increased considerably after twelfth
century. Thus a distinct line of demarcation could be drown between the wrongs
which could be redressable by payment of compensation and those which were not
so repressible by money compensation and for which the wrongdoer was to be
punished by the king. In course of time the former came to be known as civil wrongs
or ‘tort’s while the latter as ‘crime’.
It can, therefore be observed that the law did not play compelling part
in regulating the Social relations in early days as it does today. The modern
legal system provide that as soon as an offence is committed, the law is set
into nation and once irrespective of the wishes of the injured partly, whereas
in early societies the law was administered only if both the parties agreed to
submit themselves to the verdict.
Another
characteristic feature of this period of 1000 to 1200 A.D in the history of
crime was the preponderance of the system of ordeals by fire or by water to
establish the guilt or innocence of the accused. This was perhaps due to the
dominance of religion in early days and superstitutions of the people who
believed that their social relations were governed by some supernatural power
which they regarded Omnipotent.
Ref: 1. Radcliffe and
cross: The English legal system (1954) P.6
According to
Dharamsastra writer’s ordeal was a living institution in India. Epigraphic and
legal records show that ordeal was practiced strictly according to the Dharamsastra
rules since times immemorial in the Indian history. Ancient writers have
referred to the ordeals as divine methods with various names such as Samayakriya,
Sapatha, Divya, or Pariksa, Ordeals were treated as a divine means of proof
about guilt or innocence of the accused. The two important aspects of ordeals were:
i.
They indicated the
diving aspect of trial, and
ii.
The basic idea underlying this method of trial was the need
of divine intervention at a crucial moment in dispensing justice. Thus ordeal
was an antique institution, a deep rooted custom, practiced by the people in
ancient India. Yajnavalkya mentions five kinds of ordeals Balance, Fire, Water,
Poison and Kosa.
In the Balance
ordeal, the accused was weighed against a stone and if the latter was lighter,
the charge was considered to the false, but if it was otherwise, the charge
stood proved.
The fire ordeal
consisted of four main forms, namely,
i)
going through nine circles with red hot iron ball in hand
ii)
walking over burning fire
iii)
Lifting up a piece of iron from boiling oil,
iv)
Licking the red-hot iron bar with tongue.
In water ordeal, the
accused was brought to a deep and rapidly flowing river or a deep well with such
water. Then he was to speak to the water; ‘since though belongest to the pure
angels and knows both what is secret and the public, kill me if I lie and
angels preserve me if I speak the truth. Then five men took the accused and
threw him into the water. If he was not guilty, he would not drown or die.
The poison ordeal was
also used as a method of investigation. The accused was made to eat the poison
or take out a living black serpent from a pot. If he survived harmless, he was
supposed to be innocent otherwise he would be deemed guilty.
The kosa form of ordeal
was the mildest ordeal meant for Universal application. The accused was taken
to a temple. Then the priest poured water over the deity and this holy water
was given to the accused for drinking. If he was guilty or false, he would at
once vomit blood.
The first three
ordeals were based on nature and on the principle of divine judgment. They
however, fell into disuse in course of time.
Ref: 1. Dr. Pendse
S.N: Oaths and Ordeals in Dharamsastr a (M.S university, Brroda Publication) P.
24.