Lectures on Criminology & Penology PDF

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See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/349642889 Lectures on Criminology & Penology Book · June 2019 CITATIONS READS 0 10,312 1 author: Mohammad Belayet Hossain Uttara University 56 PUBLICATIONS 104 CITATIONS SEE PROFILE All content following this page was uploaded by Mohammad Belayet Hossain on 27 February 2021. The user has requested enhancement of the downloaded file. !"#$ % " ! & ' & ( )*! & " " *)+,-! .! " / . 0,)1 % " ! & ' & ( LECTURES ON CRIMINOLOGY & PENOLOGY LECTURES ON CRIMINOLOGY & PENOLOGY By Mohammad Belayet Hossain School of Law, Chittagong Independent University of Bangladesh LLM in Commercial and Corporate Law (University of London, UK) LLB (Hons.) (University of Northumbria, UK) Diploma in Law (University of London, UK) Contact info: Mobile : +88-017 60 22 65 88 (Bangladesh) + 6-011 3301 6783 (Malaysia) Email : [email protected] Preface to the Second Edition I am so grateful to the Almighty Creator, who has made it possible to complete this manuscript and publish second edition of the book. The book ‘Lectures on Criminology & Penology’ explains the basic principles of Criminology & Penology and has been designed for those studying in law. The relevant laws of Bangladesh has been considered throughout the book. The author tried to simplify the topics of this book for better understanding of the students. He has designed each chapter of this book in an easiest way and applied different techniques to assist students for memorising various terms. This book especially includes facts and judgement of important cases, easy explanation of various important topics, sample questions for examination and so on. It is hoped that this book will assist students and legal practitioners to understand easily about crimes, criminology and punishment. It is sincerely hoped that this book will provide sufficient knowledge to both students and researchers on the subject matters. The Author wants to take this opportunity to thank the publisher of this book and those who has inspired throughout the completion of this manuscript. The Authors would welcome any kind of suggestions to improve this manuscript further. M. B. Hossain 5th February 2019 TABLE OF CONTENTS Chapter-1 CRIME AND CRIMINOLOGY 1.1 General Concept of Crime......................................................3 1.2 Definition of Crime.................................................................4 a) Statutory Definition...............................................4 b) Scholar’s Definition................................................4 c) Social Definition.....................................................6 1.3 Characteristics/Elements of Crime.......................................6 1.4 Classification of Crime.........................................................10 a) General classifications.........................................10 b) Scholar’s classification.........................................12 c) Classification under the Penal Code of Bangladesh 1860.......................................................................12 d) Mode of Trial........................................................13 1.5 The Criminals.......................................................................13 a) General definition................................................13 b) Classifications......................................................13 1.6 Origin of Criminal Law........................................................15 Basic Principles.....................................................15 (i) Theories..........................................................15 (ii) Elements.........................................................16 (iii) Parts …………..........................................16 1.7 History of Criminal Law in Indian Subcontinent..............17 Hindu period........................................................17 Muslim period......................................................18 British period.......................................................18 1.8 What is Criminology?...........................................................18 General definition................................................18 Scholar’s definition..............................................19 Branches of criminology.......................................20 1.9 Nature & scope of criminology.............................................20 1.10 Different theories of criminology.........................................21 1.11 Criminal Behaviour..............................................................22 1.12 Distinction between Criminal Law and Criminology.........23 1.13 Case references.....................................................................24 Chapter-2 SCHOOLS OF THOUGHT OR CRIMINOLOGY 2.1 Schools of Thought................................................................29 2.2 Pre-classical School...............................................................30 General Concept.....................................................30 Characteristics.......................................................30 Criticism................................................................30 2.3 The Classical School..............................................................31 General Concept.....................................................31 Characteristics.......................................................31 Criticism................................................................32 2.4 Neo-classical School..............................................................33 General Concept.....................................................33 Characteristics......................................................33 Criticism................................................................34 2.5 Positive School.......................................................................34 General Concept.....................................................34 Characteristics.....................................................35 Criticism...............................................................36 2.6 Psychiatric School.................................................................37 General Concept.....................................................37 Characteristics.......................................................37 Criticism................................................................38 2.7 Cartographic School..............................................................38 General Concepts...................................................38 Characteristics.......................................................38 Criticism................................................................39 2.8 Sociological School.................................................................39 General Concepts..................................................39 Characteristics......................................................39 Criticism................................................................40 2.9 Socialist School......................................................................41 General Concepts...................................................41 Characteristics.......................................................41 Criticism................................................................41 2.10 Clinical School.......................................................................42 General Concepts...................................................42 Characteristics.......................................................42 2.11 Modern School........................................................................43 General Concepts...................................................43 Characteristics.......................................................43 2.12 Labeling Theory School.........................................................44 2.13 Summary of schools of criminology......................................45 Chapter-3 CAUSATION OF CRIME 3.1 Crime Causation..................................................................51 a) General definition................................................51 b) Scholar’s definition..............................................51 3.2 Different approaches of criminology...................................52 3.3 Various causes of crime........................................................52 3.4 The relationship between causation and liability..............54 3.5 Establishing causation.........................................................55 3.6 Establishing factual causation............................................55 3.7 Establishing legal causation................................................56 3.8 Criminogenic factors............................................................56 a) Individual centric causes.....................................56 b) Society centric causes...........................................56 3.9 Crime and Heredity.............................................................58 3.10 Crime and Mental Disorder.................................................59 3.11 Insanity and Crime..............................................................60 3.12 Crime and Bio-physical factors...........................................62 3.13 Crime and Psychology..........................................................62 3.14 Crime and Gender (female).................................................64 3.15 Case references.....................................................................66 Chapter-4 BIOLOGICAL THEORY AND CRIME 4.1 Biological Explanation of Crime..........................................77 4.2 Physiognomy........................................................................77 4.3 Phrenology............................................................................78 4.4 Criminal Anthropology........................................................79 4.5 Body Type Theory................................................................80 4.6 Family Tree Studies.............................................................81 4.7 Twins Study..........................................................................81 4.8 Adoption and Criminality....................................................82 4.9 The XYY Chromosome and Criminality.............................83 4.10 Hormone and Criminality....................................................83 4.11 Diet, Vitamin, Minerals and Criminality...........................84 4.12 Alcohol, Drugs etc. and Criminality....................................85 Chapter-5 PSYCHOLOGICAL THEORY AND CRIME 5.1 Psychological Crime.............................................................89 5.2 Freud’s Psychoanalytical Theory........................................89 1. The ‘id’..................................................................90 2. The ‘ego’................................................................90 3. The ‘super ego’......................................................90 5.3 Oedipus Complex.................................................................91 5.4 Criticism of Psycho-Analytical/Freud’s theory...................92 5.5 Psychological Defences........................................................92 5.6 Theory of Learning...............................................................92 5.7 Theory of Cognitive Development.......................................93 5.8 Antisocial personality disorder............................................93 5.9 Sex.......................................................................................... 94 Chapter-6 SOCIOLOGICAL THEORY AND CRIME 6.1 Sociological Theory of Criminal Behavior...........................99 Criticism.............................................................100 6.2 Differential Association Theory........................................100 Criticism.............................................................100 6.3 Sociological Factors and Crime Causation.......................101 Mobility..............................................................101 Cultural conflicts................................................101 Family background............................................102 Political Ideology................................................103 Religion...............................................................103 Economic conditions...........................................104 Ecology of crime..................................................104 Mass Media........................................................105 Urban and Rural Areas.....................................106 Neighborhood.....................................................106 Chapter-7 ECONOMIC CONDITIONS AND CRIME 7.1 Economy and Causation of Crime.....................................110 a) General view..........................................................110 b) Scholar’s view.......................................................110 c) Relationship between economic conditions and crime...111 7.2 Marxists Theory.................................................................111 7.3 Bonger’s Economic Theory.................................................112 7.4 Criticism of Bonger’s Theory.............................................113 7.5 Case reference....................................................................113 Chapter-8 ORGANIZED CRIMES 8.1 Definition of organized crime............................................117 General definition..............................................117 Scholar’s definition............................................117 8.2 Classifications of organized crime.....................................118 General classification.........................................118 Scholar’s classification.......................................121 8.3 Formation of organized crime............................................121 8.4 Characteristics of organized criminals.............................122 8.5 Activities of criminal organizations..................................123 Assault...............................................................123 Murder...............................................................123 Ideological crime................................................124 Financial crime..................................................124 Remittance services............................................124 Counterfeiting.....................................................124 Tax evasion.........................................................125 Cybercrime..........................................................125 Copyright infringement......................................125 Cyber warfare.....................................................125 Computer viruses...............................................126 Corporate crime..................................................126 Labor racketeering.............................................126 Political corruption............................................127 Drug trafficking..................................................127 Human trafficking.............................................127 Contemporary slavery and forced labour..........127 8.6 Permanent immunity of organized crimes........................128 8.7 Remedial measures to prevent organized crimes.............128 8.8 Statistics.............................................................................130 8.9 Case reference....................................................................132 Chapter-9 WHITE-COLLAR CRIME 9.1 Definition of white-collar crime.........................................136 a) General definition..............................................136 b) Scholar’s definition............................................136 9.2 Elements of white-collar crime..........................................138 9.3 Causation of white-collar crime.........................................138 9.4 Characteristics of white-collar crime................................139 9.5 Implications of white-collar crime....................................140 Economic loss.....................................................141 Social damage....................................................141 Privileged class deviance..................................142 Trade unionists deviance..................................142 9.6 White-collar crime in different professions.......................142 Hoarding, Black Marketing and Adulteration.....142 Tax-evasion.........................................................143 Medical Profession.............................................143 Engineering........................................................143 Legal profession..................................................143 Educational Institutions...................................144 Business.............................................................144 Fake employment placement rackets.................144 9.7 Effects of white-collar crime..............................................144 Dangerous to society...........................................145 Crime against society.........................................145 Economic disbalance.........................................145 Adverse effect on future generation....................145 Loss to Government revenues.............................145 9.8 How to prevent white-collar crime?...................................145 9.9 Distinctions between White-collar crime and Blue-collar crime..............................................................................146 9.10 Case references...................................................................148 Chapter-10 ALCOHOLISM AND DRUG ADDICTIONS 10.1 What is Alcoholism and Drug Addiction?.........................162 Definition of alcoholism and drug addiction....162 Expert opinion....................................................162 Relationship with crimes...................................162 10.2 Characteristics of alcoholism and drug addiction............163 10.3 Impacts of alcoholism and drug addiction........................163 10.4 Classifications of alcoholism and drug addiction.............164 10.5 Diseases of alcoholism and drug addiction.......................164 10.6 Influential factors of causing alcoholism and drug addiction...165 10.7 Alcoholism or drug addictions and criminality.................165 10.8 Statistics............................................................................167 10.9 Remedial measures of preventing alcoholism and drug addiction.............................................................................168 10.10 Drug laws in Bangladesh..................................................168 Chapter-11 CYBER CRIMES 11.1 Definition of cyber crime......................................................177 Introduction.........................................................177 General definition................................................177 Scholar’s definition..............................................177 11.2 Causes of Cyber Crimes......................................................178 11.3 Different Types of Cyber Crimes........................................179 General categories...............................................179 Broad categories..................................................179 Traditional categories.........................................179 11.4 Various names of Cyber offences........................................180 Stalking...............................................................180 Hacking...............................................................180 Financial crimes..................................................181 Spam....................................................................181 Fraud..................................................................181 Cyber pornography.............................................182 Harassment..........................................................182 Cyber terrorism....................................................183 Intellectual property crime..................................183 Drug trafficking..................................................184 Online gambling................................................184 Threat..................................................................184 Computer vandalism...........................................185 Data diddling......................................................185 Webcam...............................................................185 11.5 Preventive Measures of Cyber Crime.................................185 11.6 Cyber crimes in Bangladesh...............................................186 11.7 Cyber Tribunal..................................................................188 11.8 Cyber Appellate Tribunal..................................................188 11.9 Case reference......................................................................189 Chapter-12 SEXUAL OFFENCES 12.1 Sex and Crime....................................................................194 What is sexual offence?.......................................194 12.2 Causation of Sexual Crimes.............................................195 1. Attraction to opposite sex...................................195 2. Industrial development.....................................195 3. Lack of religious education/knowledge.............195 4. Urbanization......................................................196 5. Family unhappiness...........................................196 6. Alcoholism and drug addiction.........................196 7. Sexual themes.....................................................196 8. Dissatisfaction in sex life...................................196 9. Lack of proof.......................................................197 12.3 Sexual offences in Bangladesh..........................................197 12.4 Laws relating to sexual offences in Bangladesh...............198 12.5 Statistics of sexual offences in Bangladesh......................202 12.6 Incest..............................................................................207 12.7 Extramarital sex................................................................207 12.8 Prostitution.........................................................................207 12.9 Human trafficking..............................................................209 12.10 Homosexuals.......................................................................211 12.11 How to Prevent Sexual Crimes?....................................... 211 12.12 Case references...................................................................212 Chapter-13 TERRORISM 13.1 The concept of terrorism...................................................216 General concept................................................216 Scholar’s concept................................................216 13.2 History of terrorism..........................................................217 13.3 Definitions of terrorism....................................................220 General definition...........................................220 Scholar’s definition...........................................221 Definition by United Nations...........................221 Definition by USA Home Ministry...................221 Definition by CIA..............................................222 13.4 Characteristics of terrorism.............................................222 13.5 Categories of terrorism.....................................................223 General classifications......................................223 Typological classifications...............................225 Activitism..........................................................226 13.6 Objectives of terrorism.....................................................226 13.7 Causes of terrorism..........................................................227 13.8 Funding............................................................................227 13.9 Terrorism in Bangladesh.................................................228 13.10 Terrorist Groups of Bangladesh......................................229 13.11 Anti-terrorism law in Bangladesh...................................230 13.12 Remedial measures...........................................................237 13.13 War on Terror...................................................................238 Chapter-14 THE PUNISHMENT 14.1 Definitions of punishment................................................242 a) General definition..........................................242 b) Definition given by scholar...............................242 14.2 Conditions of punishment................................................242 14.3 Concepts of punishment...................................................243 14.4 Objectives of punishment.................................................244 14.5 Elements of punishment..................................................245 14.6 Different theories of punishment.....................................246 (i) Deterrent theory..............................................246 (ii) Preventive theory.............................................249 (iii) Retributive theory............................................249 (iv) Reformative theory..........................................251 (v) Expiatory theory..............................................252 14.7 Punishments under Bangladesh Penal Code 1860.........252 14.8 Forms of punishment.......................................................253 (1) Flogging.........................................................253 (2) Mutilation.....................................................253 (3) Branding.......................................................254 (4) Stoning..........................................................254 (5) Pillory.............................................................254 (6) Fines...............................................................255 (7) Forfeiture of property.....................................256 (8) Banishment...................................................257 (9) Solitary confinement.....................................257 (10) Imprisonment...............................................258 (11) Capital punishment......................................259 (12) Arguments for & against capital punishment.....260 14.9 Effectiveness of punishment...........................................261 14.10 Punishment under Islamic law........................................261 a) hadd crimes.....................................................261 b) tazir crimes......................................................262 14.11 Case references.................................................................262 Chapter 15 THE PRISON 15.1 Introduction.....................................................................276 15.2 Definition of prison...........................................................276 a) General definition.............................................276 b) Scholar’s definition...........................................276 15.3 Objects of prison system...................................................276 15.4 Development of the prison system in Indian sub-continent....277 15.5 Functions of the prison....................................................280 15.6 International standard of prison.....................................280 15.7 Special types of prison......................................................282 Youth detention facilities................................282 Women's prisons...............................................283 Military prisons and prisoner-of-war camps...284 Political prisons and administrative detention 285 Psychiatric facilities.........................................286 15.8 Prison system in Bangladesh..........................................286 15.9 Types of prison in Bangladesh.........................................287 a) Central..............................................................287 b) District..............................................................287 15.10 Organizational structure of the prison in Bangladesh...288 15.11 Classification of prisoners................................................288 15.12 Capacity of prisons in Bangladesh..................................288 15.13 Jail Codes..........................................................................289 The Prisons Act 1894........................................289 The Prisoners Act 1900.....................................290 The Identification of Prisoners Act 1920..........291 Rules for superintendence and management of jails....................................................................291 Rules for the superintendence and management of subsidiary jails...................................................294 15.14 Human Rights violations in prisons................................294 15.15 Problems of prisons in Bangladesh..................................295 Overcrowding....................................................295 Under-trial prisoners........................................296 Discipline..........................................................297 Prisoners health...............................................298 Criminality in prison........................................299 Wages................................................................299 Privilege............................................................299 Female prisoners...............................................300 15.16 Right of the Prisoners.......................................................300 15.17 Resolving prison problems...............................................301 15.18 Case references................................................................302 Chapter 16 PAROLE AND PROBATION 16.1 Introduction......................................................................310 16.2 Definitions of parole.........................................................310 a) General definition.............................................310 b) Scholar’s definition...........................................310 c) Definition based on case law............................311 16.3 Origin and development of parole system.......................311 16.4 Essential elements of parole............................................312 16.5 Objectives of parole system.............................................312 16.6 Selection and conditions for parole system.....................313 Selection............................................................313 Essential conditions for parole.........................313 Violation of the conditions...............................314 16.7 Advantages & disadvantages of parole system...............314 Advantages.......................................................314 Disadvantages..................................................315 16.8 Definition of probation....................................................315 a) General definition.............................................315 b) Scholar’s definition...........................................316 16.9 Origin and development of probation..............................318 16.10 Essential ingredients of probation..................................319 16.11 Objectives of probation.....................................................319 16.12 General conditions for probation.....................................320 16.13 Advantages & disadvantages of probation......................320 Advantages.......................................................320 Disadvantages..................................................321 16.14 Differences between parole & probation.........................322 16.15 Revocation of probation....................................................323 16.16 Law relating to probation in Bangladesh........................323 16.17 Case reference.................................................................325 Chapter 17 THE POLICE 17.1 Definition of police..............................................................333 General definition.............................................333 Scholar’s definition...........................................333 17.2 Bangladesh police.............................................................334 17.3 Ranking of the Bangladesh police....................................334 17.4 Historical background of Bangladesh police....................336 17.5 Objectives of policing.......................................................337 17.6 Branches or classifications of Bangladesh police............338 Range& District Police.....................................338 Metropolitan Police...........................................339 Detective Branch (DB)......................................339 Special Weapons And Tactics (SWAT).............339 Traffic Police.....................................................339 Special Branch (SB)..........................................340 Immigration Police............................................340 Criminal Investigation Department (CID).......340 Railway Police...................................................340 Highway Police..................................................340 Industrial Police................................................341 Rapid Action Battalion (RAB).........................341 Police Bureau of Investigation (PBI)................341 Special Security and Protection Battalion (SSPB)......341 Armed Police Battalion (APB)..........................341 Airport Armed Police (AAP).............................342 Tourist Police.....................................................342 Police Internal Oversight (PIO)........................342 Marine Police.....................................................342 Police Telecom and Information Management........343 17.7 Duties & responsibilities or functions of Bangladesh police.....343 17.8 Problems of the Bangladesh police...................................345 17.9 Statistics............................................................................346 17.10 Citizen Charter of Bangladesh Police..............................346 17.10.1 Criticisms of Bangladesh Police......................................349 17.11 Reforms of Bangladesh Police..........................................350 17.13 Case references..................................................................354 Chapter 18 JUVENILE DELINQUENCY 18.1 Definition of Juvenile Delinquency...................................365 a) General definition..............................................365 b) Criminologists definition...................................365 18.2 Definition of children........................................................367 18.3 Characteristics or features of a delinquent juvenile........367 18.4 Different kinds of juvenile delinquency...........................369 18.5 Justifications of juvenile delinquent acts.........................369 18.6 Reasons of juvenile delinquency.......................................370 18.7 Crime theories applicable to juvenile delinquency..........370 Rational choice..................................................370 Social disorganization.......................................371 Strain................................................................371 Differential association.....................................372 Labeling..............................................................372 Social control......................................................373 18.8 Treatment of Juvenile Delinquents..................................373 i. Correctional and rehabilitation centres............373 ii. Strengthen the family unit.................................373 iii. Moral education.................................................373 iv. Community programmes...................................373 v. Identification of potential delinquency.............374 vi. Counteracting delinquent propensities.............374 18.9 Juvenile Delinquency in Bangladesh...............................374 Juvenile Development Institutes.......................374 Objectives of Juvenile Development Institutes........375 Training Programs of Juvenile Development Institutes.............................................................375 Development Programs of Juvenile Development Institutes.............................................................376 18.10 The Role of UNICEF.........................................................376 18.11 The Child Act 2013............................................................377 18.12 Criticisms...........................................................................384 18.13 Case references...................................................................384 Chapter-19 RECIDIVISM 19.1 Introduction........................................................................402 19.2 Definition of recidivism.......................................................402 a) General definition................................................402 b) Expert opinion.....................................................403 19.3 Categories of recidivist.......................................................403 Psychologically ill................................................403 Incompetent........................................................403 Psychologically normal.......................................404 Basic.....................................................................404 Hardened..............................................................404 Professional.........................................................405 19.4 Causes of recidivism............................................................405 19.5 Reformative theories...........................................................406 i.Meditation theory................................................407 ii.Moralizing theory................................................407 iii.Clinical method theory........................................407 iv.Group-relations theory........................................407 19.6 Remedial measures.............................................................407 Chapter-20 PREVENTION OF CRIME 20.1 Crime prevention.................................................................412 20.2 Crime Prevention Programs...............................................412 Identification of potential delinquency................412 Child guidance clinics.........................................413 Recreational measures.......................................413 Clubs and related activities.................................413 Redirecting conflict-gangs..................................413 Punishment.........................................................413 Educational and vocational instructions...........413 Permanent segregation of offenders...................414 Sterilisation.........................................................414 Surveillance and watch keeping.........................414 Externment and restrictive movement...............414 Collective liability................................................414 Preventive detention............................................414 Transcendental meditation.................................414 Employment opportunities..................................415 Public role............................................................415 Police role.............................................................415 Appendix: Sample Questions 417 TABLE OF CASES Page No. Cases No. 1. Adamji Umar Dalal v State (1952) 253 Akula Ravinder And Others v The State Of 2. Andhra Pradesh AIR 1991 SC 1142, II (1991) 68 DMC 53 SC, 1991 Supp (2) SCC 99 3. Anil Kumar v State of M.P. (2000) 292 A. R. Antuley v Union of India (1988) 2 SCC 4. 146 602 ASK and BLAST v Bangladesh and others 5. [‘Juveniles in Jail’ Case] - Writ Petition No. 382 6373 of 2007 6. Bachan Singh v State of Panjab (1980) 257 7. Bhikhabhai Devshi v State of Gujarat (1987) 316 8. Bimal Das v State, 46 DLR HCD, 460 372 BLAST & Another v Bangladesh & Others DLR 9. 347 (2003) 363-Writ Petition No. 3806 BLAST and Another v Bangladesh and others 10. ['Shukur Ali' Case] - Writ Petition No. 8283 of 385 2005 BLAST v Bangladesh and others [‘Child’s 11. Detention under SPA’ Case] 4 BLC (1999) 600 - 384 Writ Petition No. 4191 of 1998 12. Dharamvir v State of U.P (1979) 317 13. DPP v Smith (1960) 24 14. Durham v United States (1954) 66 Ediga Anamma v State of A.P. AIR 1974 SC 15. 260 799 16. Gaurav Jain v Union of India & Others (1997) 127 17. Hicklin’s case (1868)] 203 Jagmohan Singh v State of U.P. AIR 1973 SC 18. 258 947 19. Kartik Biswas v Union of India (2005) 255 Page No. Cases No. Kelly v Arriba Soft Corp 280 F3d 934(9th 20. 183 Cir2002) Kodali Puranchandra Rao v Police Prosecutor, 21. 346 A. P. (1975) Lakshmi Kant Pandey v. Union of India, 22. 381 2 SCC 244 23. Md Gaisuddin v State of A.P. (1977) 294 Munna & Others v State of U.P. & Others 24. (1982) AIR 806 1982 SCR (3) 47 1982 SCC (1) 374 545 1982 SCALE (1) 29 Murlidhar Meghraj Loya Etc v State Of 25. 147 Maharashtra Etc 1976 AIR 1929, 1977 SCR (1) 1 26. Musa Khan v State of Maharashtra (1976) 316 27. Naib Singh v State (1983) 254 28. Prabha Dutta v Union of India (1982) 295 Provident Investment Company v Income Tax 29. 143 Commissioner (1954) 30. P.V. Narasimha Rao v State (1998) 145 31. R v Hardie (1985) 1 WLR 64 161 32. R v M’ Naghten (1843) 66 33. R v Pittwood (1902) TLR 37 24 34. Rajendra Prasad v State of U.P. (1979) 295 35. Rajni Kanta v State of Orissa (1975) 342 36. Ramamurthy v State of Karnataka (1997) 292 37. R.D. Upadhyaya v State of A.P. & others (2006) 294 Ridiff Communication Ltd v Cyberbooth & 38. 184 Ramesh Nahata (2000) 39. Sanjay Suri v Delhi Administration (1988) 295 Satto & Others vs State of U.P (1979) AIR 40. 372 1519, (1979) SCR (3) 768 41. Shiplu & another v State, 49 DLR HCD, 53 372 Page No. Cases No. 42. Shreerangyee v State of Madras (1973) 110 Smt. Poonam Lata v Wadhawan & others 43. 314 (1987) 44. Som Parkash v State of Delhi 1974 AIR 989 151 State of Gujarat & another v Hon’ble High 45. 293 Court of Gujarat (1998) 46. State of Bihar v J.A.C. Saldhana (1980) 342 47. State v Chotelal (1959) AIR SC 15 61 48. State of Haryana v Yad Ram AIR 1987 P H 203 149 49. State of U.P. v Deoman Upadhyaya (1960) 345 Stree Atyachar Virodhi Parishad v Dilip 50. Nathumal Chordia & Another 1989 SCR (1) 70 560, 1989 SCC (1) 715 51. Sunil Batra v Delhi Administration (1978) 293 52. United States v Neil Scott Kramer (1983) 177 Vishal Jeet vs Union of India And Others 1990 53. 379 AIR 1412, 1990 SCR (2) 861 54. Yahoo! Inc. v Akash Arora (1999) 183 ABBREVIATIONS AC Court of Appeal AD Appellate Division AIR All India Reporter AIR SC All India Reporter, Supreme Court All Indian Law Reports, Allahabad Series ALL ER All England Law Reports ALL LR All India Law Reports BCL Bangladesh Case Laws BCR Bangladesh Case Reports BLC Bangladesh Law Chronicles BLD Bangladesh Legal Decisions CA Court of Appeal DB Division Bench DLR Dhaka Law Reports HCD High Court Division ILR Indian Law Reports KB Kings Bench LL.B Legum Baccalaureus/Bachelor of Laws LL.D Legum Doctor LLJ Lahore Law Journal LL.M Legum Magister/Master of Laws LR Law Reports MLR Madras Law Reports AC Court of Appeal MLR Monthly Law Reports MLR Modern Law Review PH Peremptory Hearing PLC Pakistan Legal Cases PLR Punjab Law Reporter PLR Pakistan Law Reports SC Supreme Court SCC Selected Cases in Chancery SCC Supreme Court Cases SC WR Supreme Court Weekly Reports SCR Supreme Court Reporter SJ Supreme Court Journal TLR Times Law Report WLR Weekly Law Reports Dedication This book is dedicated to my children Miss Rashmia Hossain Az-Zehra and Mr. Raeef Hossain Zareef M. B. Hossain Chapter-1 CRIME AND CRIMINOLOGY Chapter-1 CRIME AND CRIMINOLOGY 1.1 General Concept of Crime 1.2 Definition of Crime a) Statutory Definition b) Scholar’s Definition c) Social Definition 1.3 Characteristics/Elements of Crime 1.4 Classification of Crime a) General classifications b) Scholar’s classification c) Classification under the Penal Code of Bangladesh 1860 d) Mode of Trial 1.5 The Criminals a) General definition b) Classifications 1.6 Origin of Criminal Law (i) Theories (ii) Elements (iii) Parts 1.7 History of Criminal Law in Indian Subcontinent Hindu period Muslim period British period 1.8 What is Criminology? General definition Scholar’s definition Branches of criminology 1.9 Nature & scope of criminology 1.10 Different theories of criminology 1.11 Criminal Behaviour 1.12 Distinction between Criminal Law and Criminology 1.13 Case Reference “Crime is eternal – as eternal as society. It is best to face the fact that crime cannot be abolished except in a non- existent utopia” --- Mr Frank Tennenbaum * 1.1 General Concept of Crime * The word ‘Crime’ derived from Latin word ‘crimen’, which meant – “charge” or “cry of distress”. According to old English, the word ‘crime’ meant – “sinfulness” or “wickedness”. Islamic history states that, the first crime had occurred when the son of Prophet Adam, named Mr Kabil murdered his own brother Mr Habil. The criminal law of each country defines the criminal offences, such as - theft, rape, murder etc. and to maintain a desired social order, the Government or State could impose more formalized or stricter systems of social control. The Government or State could create a catalogue of crimes called the criminal code (but in some common law countries no such comprehensive statute exists) and compel its citizens to conform to codes. If any person is found guilty, the offender may be sentenced to punishment, such as - community sentence, imprisonment, life imprisonment, fine or even death. While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the State but could be enforced through civil procedures in the country. Therefore, ‘Crime’ is an action or illegal act which violates criminal law and may be prosecuted by the State and if found guilty will be punishable by law. ϯ Diagram of Crime Illegal act done Violation of law CRIME Prosecution by State Punishable by law A criminal act should have the following two cardinal principles of criminal liability: (i) Nullum crimen sine poena or no crime without punishment; (ii) Nulla poena sine lege or no punishment without law. * 1.2 Definition of Crime * Generally speaking crime is an unlawful act, which is punishable by Statutory or State law and it is considered as a subject matter of criminology, which technically means a form of anti-social behaviour that violates public sentiments to such an extent as to be forbidden by statute. a) Statutory Definition: The legal definition of crime is that it is the behaviour or an activity in violation of the legal code. According to section 40 of the Penal Code 1860, crime or offence is defined as follows: “Except in the chapters and sections mentioned in clauses 2 & 3 of this Code, the word ‘offence’ denotes a thing made punishable by this Code or under any special/local law”. b) Scholar’s Definition: ϰ Mr. Paul W. Tappan defined ‘Crime’ as: “An intentional act or omission in violation of criminal law, committed without defence or justification and sanctioned by law as felony or misdemeanour”1 Act done with intention Violation of criminal law No defence/justification CRIME According to Prof Sutherland: “Crime is a symptom of social disorganisation” According to Donald Taft: “Crime is a social injury and an expression of subjective opinion varying in time and place” Mr Cross & Jones defined crime as: “A legal wrong the remedy for which is punishment of the offender at the instance of the State” According to Raffeale Garafalo: “Crime is an act which offends the basic sentiments of ‘pity’ and ‘probity’ or an anti-social behaviour which is injurious to society” Examples of conduct crimes are: (a) Perjury (b) Theft (c) Making off without payment (d) Rape 1 Tappan, P. W. :‘Crime, Justice & Correction’, p. 80. ϱ (e) Murder (f) Robbery (g) Possession of drugs or a firearm etc. c) Social Definition: The social definition of crime is that it is behaviour or an activity that offends the social code of a particular community. Mr Caldwell has explained it as “an act or a failure to act that is considered to be so detrimental to the well-being of a society, as judged by its prevailing standards, that action against it cannot be entrusted to private initiative or to haphazard methods but must be taken by an organised society in accordance with tested procedures”. * 1.3 Characteristics/Elements of Crime * The following elements (all) must be present to consider an act as a crime: (i) The act must have harmful impact on people; (ii) The act must be done with intention to harm people; (iii) The act must be prohibited or forbidden by the penal law; (iv) There must be a ‘causal relation’ between harmful act and intention; (v) The offender has no defence/justification for committing the harmful act; (vi) Penal law must prescribe some kind of punishment for the harmful act. Actus Reus + Mens Rea Causation Prohibited by penal law No defence Punishment [R v Pittwood (1902) TLR 37] or [DPP v Smith (1960)] ϲ Generally there is no liability under criminal law unless there is a guilty of mind. The Penal Code of Bangladesh 1860 provides exceptions, which negate criminal liability due to lack of mens rea. These are: Sections 76: Nothing is an offence, which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. For examples: (a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. (b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. Section 79: Nothing is an offence, which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. For example: A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. Section 80: Nothing is an offence, which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. For example: ϳ A is at work with a hatchet; the head flies off and kills a man who is standing by. Here if there was no want of proper caution on the part of A, his act is excusable and not an offence. Section 81: Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation -It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. For examples: (a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C. (b) A, is a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with intention in good faith of saving human life or property. Here if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence. ϴ Section 82: Nothing is an offence, which is done by a child under 2[ nine] years of age. Section 83: Nothing is an offence, which is done by a child above 3 [nine] years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Section 84: Nothing is an offence, which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Section 85: Nothing is an offence, which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Section 86: In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. Sections 87, 88, 89 and 92: Acts done by the consent, express or implied, or without consent for saving of the sufferer’s interest. 2 The word “nine” was substituted, for the word “seven” by section 2 of the Penal Code (Amendment) Act, 2004 (Act No. XXIV of 2004). 3 The word “nine” was substituted, for the word “seven” by section 3 of the Penal Code (Amendment) Act, 2004 (Act No. XXIV of 2004). ϵ Sections 94: Act to which a person is compelled by threats. For examples: Explanation 1-A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2-A person seized by a gang of dacoits, and forced by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception. Sections 96-106: Act done in the reasonable exercise of the right of private defence of person or property. * 1.4 Classification of Crimes * In common law countries, crimes may be categorized into common law offences and statutory offences. In the US, Australia and Canada (in particular), they are divided into federal crimes and under state crimes. a) General classifications: Generally crimes could be classified in the following categories: (i) Violent crimes: Law involving an unlawful exercise or exhibition of force (esp. of an emotion or unpleasant or destructive natural force); using or involving physical force intended to hurt, damage, or kill someone or something: a violent confrontation with riot police, assault, battery, fighting, murder, dacoity etc. (ii) Crimes against property: An action or omission that constitutes an offense that may be prosecuted by the state ϭϬ and is punishable by law: shoplifting was a serious crime, theft, burglary etc. (iii) White collar and corporate crimes: Denoting nonviolent crime committed by white-collar workers i.e. those who work in an office or other professional environment: fraud, tax evasion, unethical professional practices, election crimes etc. (iv) Organised crimes: Arranged in a systematic way, esp. on a large scale: kidnapping, robbery etc. (v) Sexual crimes: A crime relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals: rape, prostitution, homosexuality etc. (vi) Economic crimes: Any crime relating to economics or the economy: embezzlement, smuggling, black marketing etc. (vii) Political crimes: When a person relating to the government or the public affairs of a country commits any crime: election crimes, treason, spying, passing secrets to enemy country etc. (viii) Public disorder crimes: A crime involves in the affairs of the community: unlawful assembly, begging, bootlegging, gambling, public drunkenness etc. (ix) Occupational crimes: Any crime relating to a job or profession: financial corruption, unethical professional practices etc. (x) Hate crimes: A crime motivated by racial, sexual, or other prejudice, typically one involving violence: communal violence etc. (xi) Crimes against Government/State: When a person commits an act, which goes against the interest of the country: waging war, espionage, spying, bugging, counterfeiting the currency etc. (xii) Drug, alcohol related crimes: Alcoholism & drug related offences being victimless crime, they fall in the category of public order crimes or consensual crimes: selling drugs, alcohol etc. ϭϭ (xiii) Super crimes: A crime is committed by the use of violence and intimidation in the pursuit of political aims: terrorism etc. (xiv) Modern crimes: crime conducted via the Internet or some other computer network or modern technology: cyber crimes, nuclear theft, human organ theft, foeticide etc. (xv) Religious crimes: making any statement against religious beliefs, putting fire on worship places etc. b) Scholar’s classification: Prof Sutherland has classified crimes on the basis of their atrocity and seriousness – felony and misdemeanor. The distinction between the two is made in terms of the sentences that can be imposed. Felonies are the more serious crimes for which a person can be imprisoned for a long period of time or sentenced to death. Misdemeanors are the less serious offences for which either a short-term confinement in a jail may be provided or a fine may be imposed. This classification is not so useful because some misdemeanors can be more dangerous than some felonies. Mr Bonger has classified crimes into four groups on the basis of their motives – economic, sexual, political and miscellaneous. It cannot be always maintained that all crimes are committed only with one motive. Mr Lemert has classified crimes as situational and systematic. The former are those, which are committed because of the pressure of situation while the latter are those, which are committed in a planned and systematic way. Mr Clinard and Mr Quinney have given six types of crimes – violent personal crime, occasional property crime, occupational crime, political crime, public order crime, conventional crime. c) Classification under the Penal Code of Bangladesh 1860: The Penal Code of Bangladesh 1860 has classified crime/offences in seven broad categories: ϭϮ (a) Chapter VI: Offences against State; [Sec: 121-130] (b) Chapter VIII: Offences against public tranquillity; [Sec: 141-160] (c) Chapter IX: Offences relating to public servants; [Sec: 161-171] (d) Chapter XIV: Offences affecting public health, safety etc. [Sec: 268-294] (e) Chapter XVI: Offences against person; [Sec: 299-377] (f) Chapter XVII: Offences against property; [Sec: 378-462] (g) Chapter XVIII: Offences relating to documents; [Sec: 463-489] d) Mode of Trial: The following classes of offence are based on mode of trial: ;ŝͿ Indictable-only offence; ;ŝŝͿ Indictable offence; ;ŝŝŝͿ Hybrid offence, aka either-way offence in England and Wales; ;ŝǀͿ Summary offence, aka infraction in the US. * 1.5 The Criminals * a) General definition: Legally speaking, a criminal is one of those convicted by a court for violating the law of the land. A person who is arrested by the police but is let off by the court cannot be designated as a criminal. According to dictionary, a criminal is ‘a person found guilty of an indictable offence’. b) Classifications: Criminals can be broadly classified into two types: (i) Occasional: those who commit few crimes; (ii) Professional or habitual: those who commit many crimes regularly. Mr Lombroso classified criminals into four types: ϭϯ (i) Born criminal: These are certain persons who take to crime without any objective provocation or crime-inducing circumstances or conditions. (ii) Insane or epileptic criminal: This type of criminals is a mental patient, who commits crimes due to mental imbalance and consequent loss of self-control over one’s impulses. (iii) Criminal by passion or casual criminal: Some persons are not criminally disposed and do not commit crimes often but under certain circumstances they feel the impulse to crime, which is not always successfully resisted. (iv) Sex criminal: Sex criminals are those who commit outrageous sex acts or outrage the modesty of others. Mr Eurico Ferri classified criminals into five types: (i) Insane criminal: The persons who indulge in criminal acts on account of total disintegration in personality and complete loss of will. (ii) Born criminal: Mostly such persons belong to the families, which have adopted crime as a profession. (iii) Habitual criminals: These persons do not inherit bad influences but in course of their lives develop some dirty habits, which force them into criminality. (iv) Criminals by passion: Those who take to crime wilfully and deliberately. (v) Occasional criminals: This is a type of criminals who are basically non-criminal and are at heart averse to crime; but on account of certain temptations, compulsions or associations are drawn to crime. ϭϰ Prof Sutherland’s classification of criminals is based on the economic status of the individual: (i) Economically indigent criminals: These persons usually commit crime under compulsion of extreme economic pressure. (ii) White collar criminals: Persons belonging to upper strata of society commit criminal acts abundantly but usually they escape detection. Mr Garofalo classified criminals into four types:4 (i) Strange or bizarre criminal: These types of criminals are of very strange and eccentric nature. The main impulsion to crime is their bizarre moral make up. (ii) Dangerous criminals: Those who are motivated to crime by a feeling of revenge, enmity or a desire to settle the score. (iii) Cruel and dishonest criminals: These criminals belong to families, which are professionally criminal. (iv) Loafers: Those who run away from homes and take to vagabondage. * 1. 6 Origin of Criminal Law* Criminal law provides the ultimate means to the society for the partition of its individuals and institutions. Criminal law has to be string congas, both in its content as well as in its implementation, without being harsh and arbitrary. a) Theories: The origin of criminal law has four principal theories, which are: 4 Garofalo, R. : ‘Criminology’, Little Brown & Co., Boston, 1970. ϭϱ (i) Torts: it was originated in ‘torts’ i.e. wrong done to individuals and the reaction was self-redress by the victim or his family; (ii) Rational processes: the origin was in ‘rational processes’ of a unified society i.e. when a wrongdoer did any harm to another person, the State had taken action and made regulations to prevent their repetition. Thus it was regarded as ‘will of the people’ or ‘public opinion’; (iii) Mores: it was originated in the ‘mores’ i.e. customs developed and achieved ethical values. Reaction to the violation of such ethical values was expressed in the form of criminal law with penal sanctions; (iv) Group conflict: it was originated in the ‘conflict between interest groups of the society’ i.e. conflict between the State and any rival group who violates the law. b) Elements: There are three elements in criminal law, which are: (i) Politicality: it means that the violation of laws attracts penalty, which is made by the State and violation of any other laws does not attract penal provisions of criminal law; (ii) Specificity: it means that only certain specific acts of delinquency are treated as crime and not all; (iii) Uniformity: it means that the law must be applied equally to all regardless their personal status in the society. c) Parts: The criminal law consists of two parts, which are: (i) Substantive law: the Penal Code contains definition of offences and punishment for them; ϭϲ (ii) Procedural criminal law: the Code of Criminal Procedure contains the procedure for investigation, trial, prevention of crimes etc. * 1.7 History of Criminal Law in Indian Subcontinent* Hindu period: The history of criminal law in India had started after the Aryans settled here, who fully developed a mature legal system. During the period of 1000 to 1200 A.D. the guilt or innocence of the accused was established by five kinds of ordeals, which were5: (i) Balance: the accused was weighed against a stone and if the latter was lighter, the charge was considered to be false but if it was otherwise, the charge was proved. (ii) Water: the accused was brought to a deep and rapidly flowing river or a deep well full of water. Then he was thrown into the water, if he was not guilty, he would not drown or die. (iii) Fire: It had four main forms, which were: (1) Going through nine circles with red-hot iron-ball in hand; (2) Walking over burning fire; (3) Lifting up a piece of iron from boiling oil; (4) Licking the red-hot iron bar with tongue; If the accused was not hurt, then his innocence was proved. (iv) Poison: the accused was required to drink poison or take out a living black serpent from a pot. If he survived harmless, he was considered to be innocent. (v) Kosa: the accused was taken to a temple and then the priest poured water over the deity (idol) and that holy water was 5 Dr. Pendse, S. N. : ‘Oaths and Ordeals in Dharamsastra’, M.S. University, Baroda Publications, 1985. ϭϳ given to the accused for drinking. If he were guilty or false, he would at once vomit blood. Muslim period: During the Muslim period, based on Quran, Hadith, Ijma, Kiyas, there were four kinds of punishments: (i) Qisas or retaliation; (ii) Diyut or blood money; (iii) Hadd or punishment which cannot be increased/reduced; (iv) Tazar and Siyasa or discriminary and exemplary punishment. British period: During the British period, codification of law started with the Charter of 1833 and Penal Code 1860 received the assent of the Governor General on 6th October 1860 and came into force on 1 st January 1861. The Penal Code, being the general code of criminal law in the country, covers a variety of offences, such as – murder, kidnapping, rape, theft, criminal intimidation, cheating, criminal breach of trust, defamation. * 1.8 What is Criminology? * Introduction: The genesis of the term criminology is from the Latin word ‘crimen’ (crime) and from Greek word ‘logia’ (science), therefore, criminology is the science, which deals with crime and criminals. General definition: Criminology generally means - ‘the scientific study of the nature, causes, control, extent and prevention of criminal behaviour’. ϭϴ Criminology Nature of Causes/ How to The degree to How to prevent Criminal reasons control the which criminal the criminal act act behind the criminal act act has spread or behaviour criminal act Criminology is an interdisciplinary field in the behavioral sciences, drawing especially upon the research of sociologists, psychologists, psychiatrists, social anthropologists, as well as scholars of law. The term criminology was coined in 1885 by Italian law professor Raffaele Garofalo as criminologia. Later, French anthropologist Paul Topinard used the analogous French term criminologie. So, easily, we can say that the text, which deals with crime and provides knowledge about crime & criminal that is criminology. Scholar’s definition: Prof. E. H. Sutherland describes criminology as: “The body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, of breaking laws and of reacting towards the breaking law”6 According to Mr Taft: “Criminology is largely for the study of crime and criminals as defined by law; also the study of ‘near crimes’ and ‘quasi- criminals’ because they are part of the cause of crime”7 According to Mr Elliott: “Criminology is a science of crime and its treatment”8 6 Sutherland, E. H. and Cressey, D. R. : ‘Principles of Criminology’, p. 3. 7 Taft, Donald R. : ‘Criminology – A cultural interpretation’, p. 9. ϭϵ At present, criminology science glitters as a landmark in the annals of history taking its fold the following disciplines – anthropology, biology, psychology, sociology, police science, political science, economic, divinity, pathology, jurisprudence, law, psychiatry and so on. In view of Justice V. R. Krishna Iyer “criminology is for the community and criminologists are the unacknowledged legislatures of the world”.9 Branches of criminology: According to Mr. Sutherland and Mr. Cressey, there are three main branches of criminology:10 (i) Sociology of law; (ii) Criminal Etiology; (iii) Penology. (i) Sociology of law: Criminologist examines and evaluates the origin, nature, application and modification of penal laws. (ii) Criminal Etiology: Criminologist try to identity the relevant/main causes of criminal behaviour. (iii) Penology: Criminologist explores various mechanisms of punishing the offenders and penal policies. * 1.9 Nature & scope of criminology * The interests of criminologists include the study of nature of crime and criminals, origins of criminal law, aetiology of crime, social reactions to crime, and functioning of law-enforcement agencies and penal institutions. It can be said that broadly 8 Elliot, M. A. : ‘Crime and Modern Society’, p. 9. 9 Krishna Iyer J. : ‘Inaugural Address – Perspective in Criminology’, edited by Mr Rao, S. V. 10 Sutherland, E. H. and Cressey, D. R. : ‘Principles of Criminology’. ϮϬ criminology directs its enquiries along three lines: first, it investigates the nature of criminal law and its administration and conditions under which it develops; second, it analyses the causation of crime and the personality of criminals; and third, it studies the control of crime and the rehabilitation of offenders. Therefore, criminology includes within its scope the activities of legislative bodies, law-enforcement agencies (police), judicial institutions (courts), correctional institutions (prisons) and educational, private and public social agencies. * 1.10 Different theories of Criminology * As advancements have taken place, new terminologies have been coined for various criminology theories: (i) Radical criminology: According to Mr W. J. Chambliss “Acts are defined as criminal because of the interest of the ruling class enjoy immunity and subject class are penalized for violation. Crime diverts attention of the lower class people from capitalists’ exploitation. Crime is a reaction to the life condition of person’s social class”.11 (ii) Marxist criminology: According to Mr Taylor, Walton and Young “Radical criminology views the State and law as instruments used by the wealthy and powerful to dominate and exploit the weak. It views traditional criminological theory as an ally of the wealthy and powerful because it concentrates on the offenders and assumes that they, rather than the ‘system’ are the problem”. 12 (iii) Critical criminology: According to Mr Don C. Gibbons, “Crime, racism, sexism and international exploitation are 11Chambliss, W. J. : ‘Toward a Political Economy of Crime’. 12Encyclopedia of Crime and Justice, Editor-in-Chief – Kadish, Sanford H. , Vol - 1, p. 349. Ϯϭ manifestations of the inherent contradictions of the political- economic organisation of monopoly capitalism”. 13 (iv) New criminology: According to Mr Taylor, Walton and Young “Criminology should be fully social and should take into account of economic and structural social forces. The cause of crime is social and economic rather than individual”.14 (v) Clinical criminology: According to Mr Etienne De Greeff, Lyon “Diagnosis, prognesis, clinically oriented treatment of the delinquent and criminal. Formation of personality of the criminal, analysis of pre-delinquent situations, dynamics of criminal acts and interaction of criminogenic factors”. * 1.11 Criminal Behaviour* Prof. Sutherland and Mr D.R. Cressey explained the criminal behaviour as follows:15 (i) Circumstances or the situation at the time of commission of crime, i.e. ‘mechanistic’, situational or dynamic; (ii) Processes operating in the earlier history of the criminal, i.e. ‘historical’ or ‘genetic’. According to Mr Walter C. Reckless, the total spectrum of criminal behaviour can be depicted in the phenomenological perspective as follows:16 (a) Epilepsy and psychotic episodes: the disturbances in the emotional, perceptual and ideational systems are sometimes 13 Gibbons, Don C. : ‘Society, Crime and Criminal Careers – An Introduction to Criminology’. 14 Encyclopedia of Crime and Justice, Editor-in-Chief – Kadish, Sanford H. , Vol - 1. 15 Sutherland, E. H. and Cressey, D. R. : ‘Principles of Criminology’. 16 Reckless, Walter C. : ‘Crime Problem (5th Ed.), 1973, New York. ϮϮ translated into bizarre as well as dangerous behaviour, e.g. manic, hallucinatory and paranoid behaviour; (b) Symptomatic behaviour: activation of deep residues, often triggered by the flow of events in the life of a person; (c) Faulty personality and development: the combination of characteristics or qualities that form an individual's distinctive character, which is faulty and no positive development; (d) Inadequacy: poor endowment, deprivation, gross lack of opportunity, cultural shortages, poverty stricken; (e) Norm erosion and alienation: violation of conventional norms of the society; (f) Behaviour consequent to conflict: group conflict resulting in the commission of crime; (g) Interactional explosion: in the company of two or more, spontaneous behaviour as often generated leads to delinquency and crime due to tension, conflict, imitation etc.; (h) Following certain models: gang leader; (i) Occupational matters: crime is learned from the nexus of the profession in which one is engaged. * 1.12 Distinctions between Criminal Law and Criminology* Criminology always directs the way of criminal law. Therefore, both are dependant of each other. Still there are following differences between them: Ϯϯ No. Criminal Law Criminology Knowledge of criminal law is Criminology is the (i) essential to understand the scientific study of crime activities of criminals. and control of crime. Criminal law is the collection It is the analytical study (ii) of those laws whose purpose of the development of is to maintain law and order. law of crime. Law of crime can be altered It analyses the changes with the help of criminology. of society and (iii) establishes new values of life. Principles of criminal law are It is determined on the (iv) dynamic. They are affected by basis of new tendencies the time. of law of crime. * 1.13 Case References * [R v Pittwood (1902) TLR 37 – The defendant was employed by a railway company to the main gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver. The defendant was liable for the death of the train driver as it was his contractual duty to close the gate.] [DPP v Smith (1960) – A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged in order to get the police office off the car. The defendant argued he did not intend to harm the policeman. The policeman was knocked onto the path of an oncoming car and killed. The defendant was convicted of murder. The trial judge directed the jury as follows: ‘If you are satisfied that... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder.... On Ϯϰ the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable man have contemplated that grievous bodily harm would result to the officer in consequence of his actions - well, then, the verdict would be guilty of manslaughter.’ The jury convicted of murder and the defendant appealed on the grounds that this was a mis-direction and that a subjective test should apply. The Court of Appeal quashed his conviction for murder and substituted a manslaughter conviction applying a subjective test. The prosecution appealed to the House of Lords who re-instated the murder conviction and held that there was no miss-direction thereby holding an objective test was applicable.] Ϯϱ Ϯϲ Chapter-2 SCHOOLS OF THOUGHT OR CRIMINOLOGY Ϯϳ Chapter-2 SCHOOLS OF THOUGHT OR CRIMINOLOGY 2.1 Schools of Thought 2.2 Pre-classical School General Concept Characteristics Criticism 2.3 The Classical School General Concept Characteristics Criticism 2.4 Neo-classical School General Concept Characteristics Criticism 2.5 Positive School General Concept Characteristics Criticism 2.6 Psychiatric School General Concept Characteristics Criticism 2.7 Cartographic School General Concepts Characteristics Criticism 2.8 Sociological School General Concepts Characteristics Criticism 2.9 Socialist School General Concepts Characteristics Criticism 2.10 Clinical School General Concepts Characteristics 2.11 Modern School General Concepts Characteristics 2.12 Labeling Theory School 2.13 Summary of schools of criminology Ϯϴ Ϯϵ * 2.1 Schools of Thought * General Concept: The present form of criminology is a result of studies, researches and contribution of the eminent scholars and criminologists of the world. The followers of the thought and ideals of some prominent criminologists, who propounded the new thought or theory in this field, are collectively called ‘school’. The founder of modern criminology Mr. Cesare Bonesana Marchese de Beccaria at first started to study criminals on a scientific basis. From the study of Mr. Beccaria, ‘theories of criminology’ or ‘the schools of criminology’ originated. Mr Sutherland explained the meaning of ‘School of Criminology’ and pointed out that it connotes the system of thought, which consists of an integrated theory of causation of crime and of policies of control implied in the theory of causation. Different schools of thought have developed during mid-18th century to mid-20th century, which are:- (a) Pre-classical (b) Classical (c) Neo-classical (d) Positive (e) Psychiatric (f) Cartographic PC-NP-PC-SSC-ML (g) Sociological (h) Socialist ** Short technique for memorization (i) Clinical (j) Modern k) Labelling ϯϬ Every school represents the social attitude of people towards crime and criminal in a given time. They also explain crime in its own manner and suggest punishment to prevent those crimes. * 2.2 Pre-classical School * General Concept: This school explained the causation of crime in terms of demonology, witchcraft and supernatural powers. It was dominated by the scholasticism of St. Thomas Acquinas. During 17th and 18th century in Europe, it was believed that people committed crime due to the influence of ‘devil’ or ‘demon’ but not from his own free will. Characteristics: The King was believed to be the representative of God and had the Divine Right to give punishment to the criminals to keep them away from sinful or criminal acts. To relieve the victim (criminal) from the influence of the devil, people used to do worship, sacrifices, ordeals. The oaths and ordeals played a very important role to determine the guilt of the accused. With the lapse of time and the advent of the reformers, such as - Mr Hobbs, Mr Donte, Mr Machiavelli, Mr Martin Luther etc., who questioned the validity of trial by ordeal, as a result, the school vanished from the scene of criminology. Criticism: The pre-classical school was criticised on various grounds, such as: (i) The causes of commission of a crime cannot be due to the influence of any evil spirit or damn but various ϯϭ psychological, moral and social factors are held responsible for it; (ii) The demonological approach, if accepted will not serve any purpose to find out the real causes of crime because it is neither practical nor scientifical; (iii) The basis of this theory is purely imaginary and hypothetical because nobody has ever seen devil spirits. * 2.3 The Classical School * General Concept: The classical school of thought was based on ‘hedonism’ i.e. a person governs his behaviour by consideration of pain and pleasure. In 1775, the ‘hedonism’ theory was firstly introduced by Mr. Cesare Beccaria and later developed by Mr. Jeremy Bentham. According to the hedonistic doctrine, the criminals are simply punished in the prescribed ways by the State. The basic idea was that the crime would be minimal if the fear of the State agents is maximal. Mr John Locke propounded that the aim of punishment should be ‘not to torment and afflict a sentient person but it is to prevent the criminal from doing more damage to his co-citizens and to deter others from doing likewise’ and pleaded for the abolition of the death penalty. Characteristics: The main characteristics are:- (i) All people have ‘free will’ to choose how to act; (ii) ‘Pain and pleasure’ motivates people to commit crime; ϯϮ (iii) Punishment should be limited, certain and swift only to control criminals behaviour; (iv) The criminal justice system needs to be organized to prevent crime rather than punishing the criminals. The greatest achievement of this school was that it suggested a substantial criminal policy, which was easy to administer without resort to the imposition of arbitrary punishment. Mr Beccaria’s view provided a background for the subsequent criminologists to come out with a rationalised theory of crime causation, which eventually led the foundation of modern criminology & penology. This school came about at a time when major reform in penology occurred, with prisons developed as a form of punishment. Also, during this period saw many legal reforms, the French Revolution, and the development of the legal system in the United States. Criticism: (i) The main defect of the school was that it proceeded on an abstract presumption of ‘free will’ and relied solely on

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