DEFINITION OF CRIME
The word Crime has not been defined in the Bangladesh Penal Code. In it’s 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.
Definition of Crime:
According to …,0xford Advanced Learner’s dictionary activities that involve breaking the law:<href=”#_ftn1″ name=”_ftnref1″ title=””>
According to Black’s Law Dictionary: An Act that the makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.<href=”#_ftn2″ name=”_ftnref2″ title=””>
According to Legal and Commercial Section: Ordinarily a crime is a wrong which affects the security or well being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question.<href=”#_ftn3″ name=”_ftnref3″ title=””>
The word “Crime” has not been defined in the Bangladesh Penal Code. In it’s 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 Penal 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 previlege of the husband to polygamy. We may profitably quote here the observation of the framers of the Code:<href=”#_ftn4″ name=”_ftnref4″ title=””>
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 ploygamy. 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 its 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 occurit 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.
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.<href=”#_ftn5″ name=”_ftnref5″ title=””>
According to Blackstone, a crime is an act committed or omitted in violation of a Public Law either forbidding or commanding it<href=”#_ftn6″ name=”_ftnref6″ title=””>. 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.<href=”#_ftn7″ name=”_ftnref7″ title=””>
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 defence 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 it’s members as conducive to their well-being and heathy all round development. Infringement of these charished norms and customs is condemned as antisocial behabiour. 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.
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 criticised because of its 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.
EARLY CONCEPT OF CRIME:
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 organisation. Different groups have different and often incompatible interest in the society which give 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 crime which were committed against the State or the religion. Thus, treason, rape and blasphemy were treated as crime whereas ‘murder’ was not a crime.
Primitive societies did not recognise 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 ‘oullaw’ 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.<href=”#_ftn8″ name=”_ftnref8″ title=””>
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.
According to Dharamsastra writers 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, proctised 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 knowest 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.<href=”#_ftn9″ name=”_ftnref9″ title=””>
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 inter se. 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.
Criminal Law: Nature and Elements
The Importance of criminal law in relation to crime need hardly be emphasised. Dr Alleh has defined law as something more than a mere command. He observed: it is the force of public opinion which attempts to enforce, as far as possible, good morals for the benefit of the society and its members. Marett views law as the authoritative regulation of social relation. It therefore follows that law is a relative term and pervasive in nature. In other words it is a varying concept which changes from society to society and time to time. The divergence between the Hindu and Mohammedan personal law of marriage, divorce, succession, legitimacy, legislation on prohibition, abortion <href=”#_ftn10″ name=”_ftnref10″ title=””>COFEPOSA<href=”#_ftn11″ name=”_ftnref11″ title=””>, etc can be cited in support of this contention. Thus the criminal law of a place can be defined as the body of special rules regulating human conduct promulgated by State and uniformly applicable to all classes to which it refers and is enforced by punishment. It should, however, be noted that law is simply a means to an end and should not be treated as an end it itself. Its ultimate object is to secure maximum good of the community.
In order to be effective, criminal law must have four important elements viz,
(iii) Uniformity and
(iv) Penal sanction.
Politically implies that only the violation of rules made by the State are regarded as crime.
Specificity of criminal law connotes that it strictly defines the act to be treated as crime. In other words, the provisions of criminal law should be stated in specific terms.
Uniformity of criminal law suggests its uniform application throughout the country without any discrimination, thus imparting even handed justice to all alike. The purpose is to eliminate judicial description in the administration of criminal law. It must however be noted that recent legislations are providing scope for more and more judicial discretion through judicial equity to attain offenders reformation which is the ultimate goal of criminal justice.
Finally, its is through penal sanctions imposed under the criminal law that the members of society are deterred from committing crime. No law can possibly be effective without adequate penal sanctions.
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, Organised 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 categorised 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-
- 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 –
- Foreign exchange violations;
IV Social Crimes:
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. Other Crimes:
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 tranquillity;
- 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.
CHARACTERISTICS OF CRIME
Characteristics of Crime
There are certain characteristics of a crime which make an unlawful act or omission punishable under the law of the land. The main characteristics of a crime are as follows
1. External consequences: Crimes always have a harmful impact on society may it be social, personal, emotional or mental.
2. Act: there should be an act or omission to constitute a crime. Intention or mens-rea alone shall not constitute a crime followed by some external act Generally, omitting to do will not amount to actus reus or an offence. The criminal law punishes individuals for positive conduct and not for inaction. There are however, some notable exceptions. For example, a police officer may, a duty to act to prevent an assault and if he does not, he will be liable to be punished under the law.
3. Mens-rea or guilty mind- Mens-rea is one of the essential ingredients of a crime. It may, however, be direct or implied. The implied is otherwise termed as constructive mens-rea.
Mens-rea implies that there must be a state of mind with respect to an actus, that is, an intention to act in the proscribed fashion. It is, however, important to distinguish mens rea from motive. Thus if a person steals away a few loaves of bread from someone’s kitchen to feed a child who is dying of hunger, the motive here may be honourable and understandable, nevertheless the mens rea being to commit the theft, the person would be convicted for theft. His motive may, however, be taken into account in sentencing and he may be less severely punished because of his good motive. In short, motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens rea.
4. Prohibited act: The act should be prohibited or forbidden under the existing penal law. An act, howsoever immoral, shall not be an offence unless it is prohibited by law of the land.
5. Punishment: The act, in order to constitute a crime should not only be prohibited by the law but should also be punishable by the State. The punishment is usually set out in terms of a maximum and the actual punishment in any particular case is left to the discretion of the judge. Both, the defence and the prosecution have a right to appeal against the quantum of sentence.<href=”#_ftn12″ name=”_ftnref12″ title=””>
CAUSATION OF CRIME
Causation of Crime:
Crime has been a baffling problem ever since the dawn of human civilization and mans efforts to grapple with this problem have only partially succeeded. There is hardly any society which is not beset with problem of crime and criminality. As rightly pointed out by Emile Durkheim, crime is a natural phenomenon which is constantly changing with the social change.
Mental Disorder and Criminality
The term ‘mental disorder’ is also referred to as mental abnormality. It denotes that the mind is in a state of confusion or is suffering from some disease. Studies have shown that there is no evidence to prove that the crimes committed by criminals were induced by their mental disorder. On the country, crime statistics showed that quite a large number of criminals were persistent offenders and more that 66 percent of them had a past criminal record and 44 percent of them had previously been in a prison undergoing sentence.
Be that as it may, law does take mental illness or insanity into account while determining the criminal liability of the offender. It is also taken into account in sentencing offenders where they are subjected to clinical treatment rather than being sentenced. Insanity has been recognized as defence in most Penal laws.<href=”#_ftn13″ name=”_ftnref13″ title=””>
The rules recognizing the defence of insanity in criminal law were first laid down in 1843 in the historic M’ Naghen’s case.<href=”#_ftn14″ name=”_ftnref14″ title=””>
Insanity under Bangladeshi Criminal Law
Under the Penal Code of Bangladesh insanity has been accepted as a defence to a charge of crime. Section 84 of the Penal Code of Bangladesh give immunity from criminal liability to a person, who, by reason of unsoundness of mind, is unable to know the nature of the act or is unable to know that he is doing either wrong or contrary to law”.<href=”#_ftn15″ name=”_ftnref15″ title=””> In recognising a state of mind on the part of the accused as a complete defence criminal responsibility, the law postulates that it is futile to punish a person who does not know the nature of his act, or that what he is doing is either wrong or contrary to law. “The mind, in the real sense, does not accompany the physical act. To punish the conduct of such a person would be abuse of law without any practical utility. If a person does not possess knowledge about the nature of the act, then he will not appreciate what he is being punished for. And, if he does not appreciate that much, then the objective of punishment will not be achieved. In fact, punishment is intended to ac: on the mind of the person punished and to alter the direction in which his mind has been working so far. If the mind was not in substance a party to the conduct, then the question of changing the direction of mind cannot arise.
In cases where the defence of insanity is set up under Section 84 of P.C., it is material to consider the circumstances which have preceded, attended and followed the crime; whether there was deliberation and preparation for the act, whether it was done in a manner which showed a desire to concealment of consciousness of guilt and whether the accused made any efforts to avoid detection and whether after arrest he offered false excuses or made false statements etc.<href=”#_ftn16″ name=”_ftnref16″ title=””>
Where in the morning the accused behaved normally, went to and came from his office alone, wrote an application for leave and at 01.45 PM killed a child and stabbed two others and on his arrest soon after 2.45 pm gave normal and intelligent answers to the Investigative officers, it was held that the accused was not insane at the time of commission of offence and therefore can not be allowed the defence of insanity under section 84 of penal code.<href=”#_ftn17″ name=”_ftnref17″ title=””>
Freud’s theory of criminal behavior
Psychopaths contend that offenders lend into criminality on account of functional deviations and mental conflicts. Sigmond Freud (1856-1939), exp1ained mental conflicts in the personality of criminals in terms of id ego and ‘super ego’. He asserted that ‘id’ generates basic biological and physiological urges and impulses in a person such as sexual desire, hunger, affection for kith and kinds, lust for power etc. while ego refers to the conscious person a: say of which the individual is aware. That is to say, although the desire for sex pleasure and hunger are basic urges of a person he is all the time conscious that only the righteous means to fulfill these / desires protect has personality and any deviation from the normal course shall cast aspersions on his personality. Super ego according to Freud is the force of self-criticism and control inherent in every person. Thus there is a constant conflict between ‘Id’ (basic urges of men).ego and super-ego. Freud, therefore, contends that crime is the substitute of symbolic behaviour of a person. Thus the desire for coin motion suicide (self-murder) is out of the feeling of inferiority, frustration, depression or anxiety. Again, theft is committed out of the sense of financial inferiority and to get rid of the feelings of spite and dependence etc.
Psychological concept of crime
Psychology includes within it the study of mind and behaviour attitudes etc. It is the study of individual characteristics such as personality reasoning, thought perceptions, intelligence, imagination, memory creativity and so on.
Psychologists treat crime as a behaviour learnt by the criminal in whose of his contact with different persons. Thus like sociologists, they seek to explain crime in terms of environmental circumstances.
As stated earlier, Lonibroso attributed criminality to atavism which meant that criminals have savagery ancestral history an& criminality in :hem is hereditary. Similar assertions were made by Goring who pointed out that criminality traits in criminals are imbibed by heredity and through instinctive patterns and, therefore, environmental conditions are of little importance. Subsequent researches by psychologists and sociologists have, however, demonstrated beyond doubt that it is not the heredity but the psychological influences operating in delinquent families that makes one criminal. The child consciously imbibes criminality traits from the family background of the delinquent parents and subsequently turns into a confirmed criminal. Also, children who are removed away from their parents at an early age tend to follow criminality for want of proper parental care and lack of affection which develops the feelings of inferiority complex, frustration and humiliation in them. Thus, it has been rightly commented by Sutherland that the resemble and between -father and son as regards criminality is not due to contagion but it is because of peculiar human psychology of learning things, observation and association that makes them -follow criminal behavior if placed in circumstances which are conductive to crime.
Aristotle’s Four Laws of Association
It shall be pertinent to mention here the four classical laws of association which the great Greek Philosopher Aristotle enunciated centuries ago. He stated that
(iii) succession in time and
(iv) co-existence have a close bearing on the psychological concept of crime. Each of these factors greatly influence the behavioral pattern of the criminal.
As to the law of similarity, Aristotle holds that persons following similar criminal traits come closer and associate themselves into bigger gangs. Again, the beginners learn patterns of their seniors and associate themselves with their criminal activities. Thus the psychological tendency to act in way by observing or imitating the behaviour of others can, make persons follow criminality in Likewise, contrast between criminals and non-criminals as to their association and behaviour also leads to strifes and clashes which ultimately aggravate crime. Speaking about the Laws of succession in time, Aristotle suggests that human conduct is a phenomenon that persists through unbroken links. That is to say, various behavioural -norms are followed from generation to generation in succession. Although with the change in time and circumstances these patterns may undergo a change, nevertheless, their basic values remain unchanged. Aristotle asserted that criminality is one of such norms which has been continued all over the world from ages although in varying ‘degrees with changes in time and place. Finally, he stressed that it is the desire for co-existence which causes delinquenty to form their associations for helping each mother in their ‘criminal pursuits. Evidently, these trends have psychological effect which lends’ a person into criminality.
The mounting toll of criminality and alarming rise in juvenile delinquency has become a problems of national concern all over the world. Most countries now recognize that prevention of crime and treatment of offenders is not an isolated problem that social defence and correction can not be cosidered as unrelated to the total culture and the social and economic fabric of society.<href=”#_ftn18″ name=”_ftnref18″ title=””> This is evident from the fact that the “battle against crime does not end at the court room door but continues through imprisonment to release and beyond.”
Currently, the approach of penologists to crime prevention centers round five major considerations, namely:
(i) The offender is essentially a human being. Therefore, greater stress should be on individualization of the offender for his reformation;
(ii) The object of imprisonment is to bring about prisoner’s re-socialisation through the process of rehabilitation.
(iii) There is greater need for legislative participation in the shaping of correctional policy and subjection of correctional theory and practice to rule of law in the administration of criminal justice.
(iv) Control of delinquency implies ecological interpretation of sociological problems. Therefore, in order to hold in check the incidence of crime, the conditions conducive to criminality must also be kept under control.
(v) There is need for ‘socializing’ the administration of criminal justice by greater public participation and intervention by representatives of the community, both in criminal court proceeding and in the execution of sentences. Thus, criminal justice and the community must be brought closer together, since those who judge and those who are judged are both parts of the same society. Social participation in the administration of criminal justice is possible through introduction of jury system, honorary magistrates, people’s assessors, technical advisers and administrative Boards.
Suggested changes in Criminal Law & Procedure
From the point of view of social perspective and suppression of criminality, the following changes in the Bangladesh criminal law and procedure may be suggested to make it responsive to the needs of the Society of Bangladesh-
(i) The existing law does not sufficiently provide for reparation or compensation to victims of the crime for injuries caused or loss suffered by them due to the offender’s criminal act. Punishment of the accused may offer some consolation to the victim but it offers no pecuniary satisfaction to him. It is, therefore, desired that compensation be awarded to the injured parties particularly, in cases of crime relating to property. The payment of compensation may be made from the money recovered by the State from the offender by way of fine.<href=”#_ftn19″ name=”_ftnref19″ title=””>
2. Salving : “Rule of law in Criminal Justice” in ESSAYS IN CRIMINAL SCIENCE (1961 Ed.) Chap. 5
(ii) The existence of double sets of law for creation offences present difficulties for the magistracy to determine punishment for offenders in such cases. To take a concrete illustration , the law relating to bribery in Bangladesh. is governed by two different sets of laws, namely. Section 161 of the Bangladesh Penal Code<href=”#_ftn20″ name=”_ftnref20″ title=””> and the prevention of corruption Act, 1988. So also in the case with the offences relating to trafficking in girls and minors for immortal and illegal purposes.<href=”#_ftn21″ name=”_ftnref21″ title=””>
(iii) In view of the changed socio-economic conditions of the present time, there is an urgent need to re-classify the offences contained in the Bangladesh Penal Code. With the growing political indiscipline in the country and criminalisation of Bangladesh politics, it has become necessary that political offences be included in the Penal Code under a separate chapter.
(iv) Crimes relating to person should be punished with a term of imprisonment while those relating to property should be punished with fine or reparation of damages to the affected parties. Unnecessarily long terms of sentences should be avoided to make rehabilitation of the offender possible after his release. Likewise, too short a sentence will also defeat the object of punishment.
(v) The modern western trend favours deletion of all such offences from the Penal Code which are solely dependent on morality. Thus in England, homosexuality is no longer an affiance if committed in non-public place. So is the case with gambling and “Satta” etc. which have become a common menace these days. It is true that there are many offences which can not be suppressed by legal penalties alone unless the members of society voluntarily begin to think that what they are doing is morally wrong and against social interest.
(vi) Though the Habitual offenders Act in various States provide for regulatory measures such as reporting by the habitual offender about his whereabouts or residence at fixed intervals, domiciliary visits of police officers to the residence of potential offenders, externment, security bond under section 110 of the Code of Criminal Procedure, 1973, etc.<href=”#_ftn22″ name=”_ftnref22″ title=””>
(vii) As to the retention or abolition of capital punishment the generally accepted view is that its abolition should not be over emphasized. The retention of death sentence undoubtedly serves as an efficient deterrent for recidivists and hardened criminals. The retention of this penalty in the statute book is further there justified on the ground of protection of society from dangerous and incorrigible offenders. It would therefore , be expedient to retain death penalty, though in practice, it may be sparingly used in rarest of rare cases as held by the supreme court in historic case of Bachan Singh Vs State of Punjab.<href=”#_ftn23″ name=”_ftnref23″ title=””>
(viii) It has been realized that vagrancy may be a potential source of criminality. The English and the American Criminal law have made statutory provisions in their vagrancy laws to keep the suspects and undesirable persons well under control and prevent them from indulging into disorderly behaviour.
(ix) Frequent interference in investigation of cases by politicians or politically motivated prosecuting machinery headed by politician lawyers who are more interested in party in power, has distorted the image of criminal law administering agencies, particularly the police. Therefore, there is a manifest need for determined efforts to deal with this problem more effectively.
(x) Crime reporting in Bangladesh continues to be faulty even to this day. As a result of this, crimes are either Suppressed, minimized or not reported. The reporting procedure, therefore, needs to be overhauled
Despite legal, social, psychological and penal measures for combating crime, the problem still persists in alarming dimensions. With the change of time, new crimes are coming up and the traditional crimes are vanishing fast. The advancement in knowledge of human behavour and growth of commerce and industries have brought in their wake new complexities in life. These complexities account for the rising incidence of criminality. It is therefore apparent that crime. There is no reason to be upset with the present increase in crime rate. Nor should it create a misleading impression that the penal programmes have totally failed or proved ineffective. It must be stated that criminality in Bangladesh is for less than in many other countries of the world. The reason being that Society of Bangladesh still retains the virtues of the tolerance, mutual respect and co existence through its social institutions such as religion, family, parental control etc.
Before concluding, a word must be said about the general tendency among people to keep away from agencies administering criminal law and justice. The root cause of this apathy is to be found in common mans distrust for law, justice, prosecutors and the members of the bar. Instances are not wanting when people watch a crime being committed in their resence but they never report in to the police because of the fear of the procedure. A commoner always prefers to avoid police or law courts even at the cost of suffering a slight harm or injury. He refrains from instituting criminal proceedings against the offender to avoid the botheration of contacting police or visiting law courts. This apathy of people towards law conforcement agencies provides fertile ground for offenders to carry on their criminal activities underterred which hinders the cause of crime prevention. It must be accepted that there is a great divergence in practice and precepts. So far working of police and law courts is concerned. The problem of the day, therefore is to restore confidence among the public for these agencies of justice through an extensive propaganda and convince people that these institutions are meant to help and not to harass them. Prevention of crime should be treated as everyone’s concern. Unless this broader outlook is developed among the members of society, elimination of crime seems rather difficult. In general, the state of lawlessness indicates lapses on the part of the State agencies and the abuse of State power by corrupt coteries and their immoral behaviours by way of deviating from professional standard and accepted norms both within the organization and the society. This obviously causes the public to harbour a feeling to distrust and contempt for the law enforcement agencies and authorities on whom the responsibility of crime prevention devolves. It is, therefore, necessary that the traditional outlook that crime prevention is solely the concern of law conforcement agencies, must be changed and it should be treated as a social cause necessitating involvement of every citizen. It is only then that the measures to prevent crimes and criminals can succeed and public tranquility maintained in the community.
1. Hornby, A.S, Oxford Advanced Learner’s Dictionary, 6th Edition (Oxford University Press: 2000, UK) 297.
2. Bryan A. Garner, Black’s Law Dictionary, 8th Ed( West Publishing Co:2004, US) P. 399
3. Saha, A.N., Mitra’s legal and commercial Dictionary, 5th Ed. (Eastern Law House: 2001, New Delhi) P-187
- Kabir, Dr., The Penal Code, 2nd Edition (Ain Prokashan, 2008, Dhaka) Page-6.
- Gillin J.L : Criminology and Penology, 3rd Ed. P-6
- William Black Stone : Commentaries, Vol. iv, Page-5
- Sutherland and cressy.,Tthe Principles of Criminology, 6th Ed. (J.B. Lippincott company: 1960, New York) P-30
- Paranjape, Dr. N.V, Criminology and Penology, 12th Ed. (Central Law Publication : 2005, Allahabad) P-3
- Dr. Pendse S.N: Oaths and Ordeals in Dharamsastr a (M.S university, Brroda Publication) P. 24.
10. DLR., The Penal Code, Ist Ed. (Esrarul Huq Chowdhury; 2003, Dhaka. P-99
- R.v.M’ Naghten (1843) 10 CL & F, 200.
12. Ratan Lal and Dhirajlal., The Indian Penal Code, 28th Ed ( Editorial Board, 1998, Nagpur), P-90
13. State v. Chotelal, AIR 1959 M.P. 203.
14. Jai 1.01 v. Delhi Administration, AIR 1969 SC 15
15. Paranjape, Dr. N.V, Criminology and Penology, 12th Ed ( Central Law Publication, 2005, Allahabad) P-60
16. See Neelbati Behra V. State of Orissa, AIR 1993 SC 1960: Gauri Shanker Sharma V. State of UP, AIR 1990, Saheli V. Policy Commissioner, Delhi, (1990) 1 SCC 422.
17. Islam, Md. Zahurul., The Penal Code, 1st Ed. (Law Book Company, 2005, Dhaka) P-262.
18. The relevant provisions are contained in Section 372 of the Bangladesh Penal Code.
19. Haque, Md. Johirul, The Code of Criminal Procedure, 1st Ed. (Sums Publication, 2008, Dhaka). P-110.
20. Bachan Singh Vs. State of Punjab, AIR, 1980 SC 898.
<href=”#_ftnref1″ name=”_ftn1″ title=””> Hornby, A.S, Oxford Advanced Learner’s Dictionary, 6th Edition (Oxford University Press: 2000, UK) 297.
<href=”#_ftnref2″ name=”_ftn2″ title=””> Bryan A. Garner, Black’s Law Dictionary, 8th Ed( West Publishing Co:2004, US) P. 399
<href=”#_ftnref3″ name=”_ftn3″ title=””> Saha, A.N., Mitra’s legal and commercial Dictionary, 5th Ed. (Eastern Law House: 2001, New Delhi) P-187
<href=”#_ftnref4″ name=”_ftn4″ title=””> L. Kabir, Dr., The Penal Code, 2nd Edition (Ain Prokashan, 2008, Dhaka) Page-6.
<href=”#_ftnref5″ name=”_ftn5″ title=””> Gillin J.L : Criminology and Penology, 3rd Ed. P-6
<href=”#_ftnref6″ name=”_ftn6″ title=””> William Black Stone : Commentaries, Vol. iv, Page-5
<href=”#_ftnref7″ name=”_ftn7″ title=””>Sutherland and cressy.,Tthe Principles of Criminology, 6th Ed. (J.B. Lippincott company: 1960, New York) P-30
<href=”#_ftnref8″ name=”_ftn8″ title=””>Paranjape, Dr. N.V, Criminology and Penology, 12th Ed. (Central Law Publication : 2005, Allahabad) P-3
<href=”#_ftnref9″ name=”_ftn9″ title=””>. Dr. Pendse S.N: Oaths and Ordeals in Dharamsastr a (M.S university, Brroda Publication) P. 24.
<href=”#_ftnref10″ name=”_ftn10″ title=””> Medical Termination of pregnancy Act 1971
<href=”#_ftnref11″ name=”_ftn11″ title=””> Conservation of Foreign Exchange & Prevention of Smuggling Activities Act 1974.
<href=”#_ftnref12″ name=”_ftn12″ title=””>Paranjape, Dr. N.V, Criminology and Penology, 12th Ed. (Central Law Publication : 2005, Allahabad) P-10
<href=”#_ftnref13″ name=”_ftn13″ title=””>DLR., The Penal Code, Ist Ed. (Esrarul Huq Chowdhury; 2003, Dhaka. P-99
<href=”#_ftnref14″ name=”_ftn14″ title=””>R.v.M’ Naghten (1843) 10 CL & F, 200.
<href=”#_ftnref15″ name=”_ftn15″ title=””>Ratan Lal and Dhirajlal., The Indian Penal Code, 28th Ed ( Editorial Board, 1998, Nagpur), P-90
<href=”#_ftnref16″ name=”_ftn16″ title=””>State v. Chotelal, AIR 1959 M.P. 203.
<href=”#_ftnref17″ name=”_ftn17″ title=””>Jai 1.01 v. Delhi Administration, AIR 1969 SC 15
<href=”#_ftnref18″ name=”_ftn18″ title=””>Paranjape, Dr. N.V, Criminology and Penology, 12th Ed ( Central Law Publication, 2005, Allahabad) P-60
<href=”#_ftnref19″ name=”_ftn19″ title=””> See Neelbati Behra V. State of Orissa, AIR 1993 SC 1960: Gauri Shanker Sharma V. State of UP, AIR 1990, Saheli V. Policy Commissioner, Delhi, (1990) 1 SCC 422.
<href=”#_ftnref20″ name=”_ftn20″ title=””>Islam, Md. Zahurul., The Penal Code, 1st Ed. (Law Book Company, 2005, Dhaka) P-262.
<href=”#_ftnref21″ name=”_ftn21″ title=””> The relevant provisions are contained in Section 372 of the Bangladesh Penal Code.
<href=”#_ftnref22″ name=”_ftn22″ title=””>Haque, Md. Johirul, The Code of Criminal Procedure, 1st Ed. (Sums Publication, 2008, Dhaka). P-110.
<href=”#_ftnref23″ name=”_ftn23″ title=””>Bachan Singh Vs. State of Punjab, AIR, 1980 SC 898.