# ' • HIRALAL MALLICK v. STATE OF BIHAR

- **Citation:** [1978] 1 S.C.R. 301
- **Court:** Supreme Court of India
- **Decided:** 1977-08-16
- **Case number:** Criminal Appeal No. 256 of 1977
- **Bench:** V. R. Krishna Iyer, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hiralal-mallick-v-state-of-bihar-7277
- **Pages:** 14

## Headnote

301
Indian Penal Code, sections 302 and 34-Vernier scale of mens rea, reason-
~ble and probable consequences of the Act-Degree of criminality gauged by
personalised approach to circumstances of involvement, doli capax, age and ex~
pectation of consequences by offender-Desideratum of sentence-Welfare and
therapeutic orientation of jus juvenalis-Correction and rehabilitation of luvenile
.delinquent.
Hiralal MaJJick was 12 years old when he along with his two elder brothers,
was convicted by the Trial Court under s. 302 read with s. 34, I.P.C.,
and
sentenced for life.
In appeal, the High Court directed the conversion of the
convictions from s. 302 into one under s. 326 read with s. 34, I.P.C., and the
appellants sentence was reduced to 4 years in consideration for his young age.
The appellant contended that his participation in the crime could
only
attract s. 324 I.P.C.; that be was too infantine to understand the deadly import
of the sword wounds delivered by him, that his involvement had been ctrcumstanced by the fraternal company, and that he had only inJlicted superficial injuries showjng a lesser degree of intent.
Dismissing the appeal, but prescribing guidelines for the appellant's treatment
in iail. the Court.
HELD : ( 1) The vernier scale of a man's mens rea is, the pragmatic one
of the reasonable alld probable consequences of his act. Except in pronounced
categories, the intent is spelt out objectively by the rough-and-ready test of the
prudent man l!Ild not with psychic sensitivity to retarded individuals. [303F, GJ
Observation :
Man is a rational being, and law is a system of behavioral cybernetics where
noetic niceties, if pressed too far, may defeat its societal efficacy. [3031''1
(2) When a crime is committed by the concerted action of a plurality of
persons, the degree of criminality may vary, depending not only on the injurioUs
sequel but also on the part played and the circumstances present, a personalised
approach '\vith reference to each participant has to be made regarding the circumstances of involvement, his doli capax, age and expectation of consequences.
[304-A, CJ
Observation :
(i) Adult intent. automatically attributed to infant mens is an error, but at
the same time, doli capax is not so much measured by years and days as by
the strength of the delinquent's understanding and judgment.
[304H, 305A]
Criminal Pleading, Evidence & Practice by Archibold; An Introduction in
Criminal Law by CrosJ and Jones; R. v. Owen [1830] 4 C & P 236; R. v. Kershaw [1902] 18 T.L.R. 357; Criminology Problems and Perspective, page 127 by
Ahmad Siddique; referred to.
,
(ii) The ultimate desideratum of most sentences is to 1nake an offender a
non-offender.
The Indian legal system must be sensitized by juvenile justice:
The Bench ai'nd the Bar should be alerted about jus juvenalis. The compassion
of the penal law for juvenescents cannot be reduced to jeunity by forensic indifference, since justice to juvenile justice desiderates more from a lively judicial
process.
The establishment of ·a \Velfare oriented jurisdiction over juveniles is
predicated and over-judicialisation and over-formalisation of Court proceedings
is contra-indicated.
Correctionally speaking, the perception. of de1inquency as
indicative of the person's underlying difficulties, inner tensions and explosive
stresses similar to those of mal-adjusted children, and the belief that court atmosphere is psychically traumatic and socially stigmatic, argues in favour of mor..r
A
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G
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302
SUPREME COURT REPORTS
[1978] 1 S.C.R.
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informal treatment by a free mix of professional and social workers and experts
operating within the framework of the law. Our nation can never be dee1riminalised until the St~tes legislate a children Act, set up the curial and other 1ntrastructure and give up retributivism in favour of restorative arts in the jurisdiction
of young deviants, and the crime of punishing them is purged legislatively, administratively and judicatively.
[305D·

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HIRALAL MALLICK
v.
STATE OF BIHAR
August 16, 1977
[V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.
301
Indian Penal Code, sections 302 and 34-Vernier scale of mens rea, reason-
~ble and probable consequences of the Act-Degree of criminality gauged by
personalised approach to circumstances of involvement, doli capax, age and ex~
pectation of consequences by offender-Desideratum of sentence-Welfare and
therapeutic orientation of jus juvenalis-Correction and rehabilitation of luvenile
.delinquent.
Hiralal MaJJick was 12 years old when he along with his two elder brothers,
was convicted by the Trial Court under s. 302 read with s. 34, I.P.C.,
and
sentenced for life.
In appeal, the High Court directed the conversion of the
convictions from s. 302 into one under s. 326 read with s. 34, I.P.C., and the
appellants sentence was reduced to 4 years in consideration for his young age.
The appellant contended that his participation in the crime could
only
attract s. 324 I.P.C.; that be was too infantine to understand the deadly import
of the sword wounds delivered by him, that his involvement had been ctrcumstanced by the fraternal company, and that he had only inJlicted superficial injuries showjng a lesser degree of intent.
Dismissing the appeal, but prescribing guidelines for the appellant's treatment
in iail. the Court.
HELD : ( 1) The vernier scale of a man's mens rea is, the pragmatic one
of the reasonable alld probable consequences of his act. Except in pronounced
categories, the intent is spelt out objectively by the rough-and-ready test of the
prudent man l!Ild not with psychic sensitivity to retarded individuals. [303F, GJ
Observation :
Man is a rational being, and law is a system of behavioral cybernetics where
noetic niceties, if pressed too far, may defeat its societal efficacy. [3031''1
(2) When a crime is committed by the concerted action of a plurality of
persons, the degree of criminality may vary, depending not only on the injurioUs
sequel but also on the part played and the circumstances present, a personalised
approach '\vith reference to each participant has to be made regarding the circumstances of involvement, his doli capax, age and expectation of consequences.
[304-A, CJ
Observation :
(i) Adult intent. automatically attributed to infant mens is an error, but at
the same time, doli capax is not so much measured by years and days as by
the strength of the delinquent's understanding and judgment.
[304H, 305A]
Criminal Pleading, Evidence & Practice by Archibold; An Introduction in
Criminal Law by CrosJ and Jones; R. v. Owen [1830] 4 C & P 236; R. v. Kershaw [1902] 18 T.L.R. 357; Criminology Problems and Perspective, page 127 by
Ahmad Siddique; referred to.
,
(ii) The ultimate desideratum of most sentences is to 1nake an offender a
non-offender.
The Indian legal system must be sensitized by juvenile justice:
The Bench ai'nd the Bar should be alerted about jus juvenalis. The compassion
of the penal law for juvenescents cannot be reduced to jeunity by forensic indifference, since justice to juvenile justice desiderates more from a lively judicial
process.
The establishment of ·a \Velfare oriented jurisdiction over juveniles is
predicated and over-judicialisation and over-formalisation of Court proceedings
is contra-indicated.
Correctionally speaking, the perception. of de1inquency as
indicative of the person's underlying difficulties, inner tensions and explosive
stresses similar to those of mal-adjusted children, and the belief that court atmosphere is psychically traumatic and socially stigmatic, argues in favour of mor..r
A
B
c
D
E
F
G
H
302
SUPREME COURT REPORTS
[1978] 1 S.C.R.
A
informal treatment by a free mix of professional and social workers and experts
operating within the framework of the law. Our nation can never be dee1riminalised until the St~tes legislate a children Act, set up the curial and other 1ntrastructure and give up retributivism in favour of restorative arts in the jurisdiction
of young deviants, and the crime of punishing them is purged legislatively, administratively and judicatively.
[305D·E, 306C, 307 A-DJ
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'Sentencing and Probation' (published by : National College of the
State
Judiciary, Reno, Nevada, U.S.A.); Kent v. United States, 383 U.S.
541,
556
[1966]; Social Defence, Vol. VII No. 25, July 1971 (published by : the Central
Bureau of Correctional Services, Department of Social Welfare, Government of
India) referred to.
-
Direction :
It is essential that the therapeutic orientation of the prison system, vis-a-vis
the appellant, must be calculated to release stresses, resolve tensions and restore
inner balance. Work designed constructively and curatively with special reference to the needs of the person involved, may have a healing effect and change
the personality of the quondam criminal. It is correctionally desirable to grant
parole to prisoners periodically, and it is important for the prison department
to explore, experiment and organise gradually some reformative exercise like
Transcendental Meditation, in order to eliminate recidivism, and induce rehabilitation. The brooding presence of judicial vigilance is the institutional price of
prison justice. The sentencing process should be reformed with flexibility humanity, restoration and periodic review informing the system and involving the
court in the healing directions and corrections affecting the sentencee whomjudicial power has cast into the 'cage'. !310G-H, 313A-E. 314A-B]
Guidelines for sentencing (published by : the National Probation and Parole
Association, New York 1957); Rigveda 1-89-i; Bhavan's Journal, July 17, 1977,
page 57; Kentucky L. J., Vol. 60 1971-72 No. 2; Universi.'y of Maryland Law
Forun1, Vol. III, No. 2, Winter 1973; State of Arizona v. Jean Coston Presley
(€ase No. 6878) Judgment dated 5-3-76; and United States of America v. Robert
Charles Rusch Jr. (Criminal Action No. 4-8-1750 in the U.S. District Court for
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Eastern District of Michigan) referred to.
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 256
of 1977.
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Appeal by Special Leave from the Judgment and Order dated
29-10-76 of the Patna High Court in Criminal Appeal No. 464 of
1971.
D. Goburdhan for the Appellant.
U. P. Singh and S. N. Iha for the Respondent.
The following Judgments. were delivered :
KRISHNA IYER, J.-This appeal involves an issue of crin1inal culpability presenting mixed questions of fact and law and a theme of juvenile justice, a criminological Cinderella of the Indian law-in-action.
Hiralal Mallick, the sole appellant before us, was a 12-year old
lad when he toddled into crime conjointly with his two elder brothers.
The three, together, were charged with the homicide of one Arjan
Mallick which ended in a conviction of all under s. 302 read with s. 34
IPC.
The trial judge impartially imposed on each one a punishment of
imprisonment for life.
On appeal by all the three, the High Court,
taking note of some pecularities, directed the conversion of the convictions from s. 302 (rea<i with s. 34) into one under s. 326 (read
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HJRALAL v. B!HAR (Krishna Iyer, /.)
303
withs. 34) IPC and, consequently, pared down the punishment awardA
ed to the co-accused into rigorous imprisonment for 8 years.
The third
accused, the appellant before us, was shown consideration for his
tender age of 12 years (at the time of commission of the crime) and
the court, in a mood of compassion, softened the sentence on the boy
into rigorous imprisonment for 4 years.
A close-up of the participatory role of the youthful offender, as distinguished from that of his elder brothers, discloses a junior partnership for him.
For, argued Shri Goburdhan, while accused 1 and 2
caused the fatal stabs, the appellant was found to have inflicted superficial cuts on the victim with a sharp weapon, probably angered by the
episode of an earlier attack on their father, induced by the stress of the
reprisal urge and spurred by his brothers' rush after the foe, but all
the same definitely helping them in theit aggression. That he was too
infantine to understand the deadly import of the sword blows he delivered is obvious; that he inflicted lesser injuries of a superficial nature
is proved; that he, like the other two, chased and chopped and took
to his heels, is evident.
The immature age of the offender, the fraternal company which circumstanced his involvement, the degree of intent
guaged by the depth of the wounds he caused and the other facts surrounding the occurrence, should persuade us to hold that this juvenile
was gu!lty-not of death-dealing brutality-but of naughty criminality,
in a violent spree.
Measured by his intent and infancy, his sinister
part in the macabre offence ran upto infliction of injury with a cutting
weapon attracting s. 324 IPC, not more. Such was the mecaronic
submission of counsel anxious to press for an extenuatory exoneration
from incarceration.
This mix-up of degree of culpability and quantum of punishment
is unscientific and so we have first to fix the appellant's guilt under
the Penal Code and then tum to the punitory process.
Criminality
comes first, humanist sentence next.
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Ordinarily, the vernier scale of a man's mens rea is the pragmatic
one of the reasonable and probable consequences of his act.
The weaF
pon he has used, the situs of the anatomy on which he has inflicted the
injury and the like, are inputs. If that be the mental standard of the
turpitude, the offender's faculty of understanding becomes pert;nent.
Man is a rational being and law is a system of behavioral cybernetics
where noetic niceties, if pressed too far, may defeat its societal efficacy.
So, except in pronounced categories, which we will advert to presently,
the intent is spelt out objectively by the rough-and-ready test of the
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prudent man and not with psychic sensitivity to retarded individuals.
Viewed in this perspective, the materials present in the case, especially
the medical evidence, shows that this young offender armed himself
like his brothers with a cutting instrument and set upon the victim
using the sword on his neck.
The autopsy evidence discloses that the
injuries caused by the appellant were not the lethal ones; but multiple
sword cuts on the neck of a man, leave little room for doubt in the
H
ord;nary run of cases as to the intent of the assailant.
When three
persons, swords in hand, attack a single individual, fell h;m on the
ground and strike on his neck and skull several times with a sharp
304
SUPREME COURT REPORTS
[1978] 1 S.C.R.
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weapon, it is not caressing but killing, in all conscience and commonsense.
The turpitude cannot be attenuated, and the inference is inevitable that the least the parties sought to execute was to endanger the
life of the target person.
In this light, the malefic contribution of the
appeilant to the crime is substantially the same as that of the other two.
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When a crime is committed by the concerted action of a plurality
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of persons constructive liability implicates each participant, but the
degree of criminality may vary depending not only on the injurious
sequel but also on the part played and the circumstances present,
making a personalised approach with reference to each.
Merely because of the fatal outcome, even those whose intention, otherwise
made out to be far less than homicidal, cannot, by hindsight reading,
be meant to have had a murderous or kindred mens rea.
We have,
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therefore, to consider in an individualised manner the circumstances
of the involvement of the appelant, his nonage and expectation of consequences. When a teenager, tensed by his elders or provoked by the
stone-hit on the bead of his father, avenges with dangerous sticks or
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swords, copying his brothers, we cannot altogether ignore his impaired
understanding, his tender age and blinding environs Biid motivations
causatory of his crime.
It is common ground that the appellant was twelve years old at the
time of the occurrence.
At common law in England, as noticed by
Archbold in Criminal Pleading, Evidence and fractice, a child under
14 years is presumed not to have reached the age of discretion and to
be doli incapax; but this presumption may be rebutted by strong and
pregnant evidence of a mischievous discretion. . . for the capacity to
commit crime, do evil and contract guilt, is not so much measnred by
years and days as by the strength of the delinquent's understanding and
judgment.
Cross & Jones in 'An Introduction to Criminal Law' state : "It is
conclusively presumed that no child under the age of ten years can be
guilty of any offence; a child of ten years or over, but under the age
of fourteen, is presumed to be incapable of committing a crime, but
this presumption may be rebutted by evidence of 'mischievous discretion' i.e., knowledge that what was done was morally wrong." R. V.
Owen (1830) 4 C & P. 236. Cross & Jones further state : "The rebuttable presumption of innocence in the case of persons between the
age of ten and fourteen is still wholly dependent on the common law.
The Crown cannot, as in most other cases, rely on the actus reus as
evidence of mens rea; other evidence that the child knew it was doing
something morally wrong must be adduced." : R. v. Kershaw (1902)
18 T.L.R. 357.
In English Law, when an adolescent is charged with an offence,
the prosecution has to prove more than the presence of a guilty mind
but must go further to make out that 'when the boy did the act, he
knew that he was doing what wrong-not merely what was wrong but
what was gravely wrong, seriously wrong' (emphasis added).
Adult intent, automatically attributed to infant mens, is itself an
adult error. It is everyday experience that little boys as a class have
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HIRALAL v. BIHAR (Krishna Iyer, J.)
305
_less responsible appreciation of dangers to themselves or others by injurious acts and so it is that the new penology in many countries immunises crimes committed by children of and below ten years of age and
those between the ages of 1 O and 14 are 'in a twilight zone in which
they are morally responsible not as a class, but as individuals when they
know their act to be wrong'.
The Indian Penal Code, which needs updating in many portions, extends total immunity upto the age of seven
(s. 82) and partial absolution upto the age of twelve (s.
83). The
latter provision reads :
"83. Nothing is an offence which is done by a child above
seven 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.
The venal solicitude of the law for vernal offenders is
essentially a
modern sensitivity of penology although from the Code of Hammurabi,
the days of the Hebrews and vintage English law, this clement disposiA
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tion is a criminological heritage, marred, of courne, by some periods
and some countries.
Dr. Siddique mentions that there have been
instances in England where children of tender years were given death
sentences like the case where two kids of eight or nine years were given
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capital punishment for stealing a pair of shoes (p. 127, Criminology :
Problems & Perspectives, by Ahmad Siddique : Eastern Book Co.) .
At least as mankind is approaching the International Year of the Child
(1979), the Indian legal system must be sensitized by juvenile justice.
This conscientious consciousness prompted us to counsel counsel to
examine the statutory position and criminological projects in the 'child'
area.
We had to make-do with what assistance we got but hope that
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when a near-pubescent accused is marched into a criminal court, the
Bench and the Bar will be alerted about jus juvenalis, if we may so
call it.
The compassion of the penal law for juvenescents cannot be
reduced to jejunity by forensic indifference since the rule of law lives
by law-in-action, not law in the books.
Unfortunately, at no stage,
from the charge-sheet to the petition for special leave, has awareness
of s. 83 of the Panel Code, the Probation of Offenders Act, 1958 or
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the Bihar Children Act, 1970, been shown in this case.
May be, the
offence charged being under s. 302 IPC and the guilt ultimately found
being of an offence punishable with life imprisonment, account for this
non-consideration.
Even so, justice to juvenile justice desiderates
more from a lively judicial process.
Back to Hiralal Mallick and his crime and punishment.
Was he
guilty under s. 326 IPC as the High Court has found, or was he liable
only under s. 324 as Shri Goburdhun urges
He was twelve; he wielded a sword; he struck on the neck of the deceased; he rushed to avenge;
he ran away like the rest.
No evidence as to whether he was under
twelve, as conditioned by s. 83 IPC is adduced; no attention to feeble
understanding or youthful frolic is addressed.
And we are past the
judicial decks where factual questions like this can 15e investigated.
The prima facie inference of intent to endanger the life of the deceased
wlth a sharp weapon stands unrebutted.
Indeed, robust realism easily
imputes doli capax to a twelver who cuts on the neck of another with
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[1978] 1 S.C.R.
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a sword; for, if he docs not know this to be wrong or likely to rip open
a vital part he must be very abnormal and in greater need of judicial
intervention for normalisation.
The conviction under s. 326, IPC,
therefore, must be reluctantly sustained.
When such is the law, we
cannot innovate to attenuate, submit to spasmodic sentiment, or ride
an unregulated benevolence.
We cannot forget Benjamin Cardozo's
caveat that "the Judge, even when he is free, is still not wholly free'.
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Fettered by the law, we uphold the conviction.
Now to the issue of 'sentence'.
Guidelines for sentencing are difficult to prescribe and more difficult to practice.
Justice Henry Alfred
McCardie succinctly puts it :
"Trying a man is easy, as easy as falling off a log, compared with deciding what to do with him when he has been
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found guilty."(') (p. 362)
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Speaking broadly, the ultimate desideratum of most sentences is 'to
m&kc an offender a non-offender.
Only as judges impose effective
sentences with a proper attitude and manner will they perform their
expected function of decreasing the rising number of criminal and
quasi-criminal activities in this nation'.
(p. 364) (') Penal humanitarianism has come to assert itself, although Sir Winston Churchill put
the point of the common man and of the judge with forceful clarity :
"The mood and temper of the public with regard to the
treatment of crime and c6minals is one of the most unfailing
tests of the civilization of any country. (p. 68) (')
By that unfailing test we fail, if we betray brutality towards children
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and burke the human hope of tomorrow and the current trust in our
hands and hearts.
So it is that in the words of the Archbishop of
York in the House of Lords' debate in 1965 :
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"Society must say, through its officers of law, that it
repudiates certain acts as utterly incompatible with civilized
conduct and that it will exact retribution from those who
violate its ordered code.:." (p. 18) (')
It is a badge of our humanist culture that we hold fast to a national
youth policy in criminology.
The dignity and divinity, the self-worth
and creative potential of every individual is a higher value of the Indian
people; special protection for children is a constitutional guarantee
writ into Art. 15(3) and 39(f). Therefore, without more, our judicial processes and sentencing paradigms must lead kindly light along
the correctional way.
That is why Gandhiji emphasized the hospital
setting, the patient's profile in dealing with 'criminals'.
In-patient,
out-patient and domiciliary treatment with curative orientation is the
penological reverence to the Father of the Nation.
A necessary blossom of this ideology is the leg'slative development of criminological
pediatrics. And yet it is deeply regrettable that in Bihar, the land of
the Buddha-the beacon-light whose compassion encompassed all living
beings-the delinquent child is inhospitably treated. Why did this
(1) All quotations from •seatencing and Probation'-Published by National'
College of the State Judiciary, Reno, Nevada, U.S.A.).
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HIRALAL v. BIHAR (Krishna Iyer, J.)
307
finer consciousness of juvenile justice not dawn on the Bihar legislators and government.
Why did the State not pass a Children Act
through its elected members ? And one blushes to think that a belated
Children Act, passed in 1970 during President's rule, was allowed to
lapse!
Today, may be, the barbarity of tender-age offenders being
handcuffed like adult habituals, trooped into the crowded criminal
court in hurtful humiliation and escorted by policemen, tried along with
adults attended by court formalities, survives in that hallowed State;
for, counsel for Bihar surprised us with the statement that there now
exists no Children Act in that State.
With all our boasts and all our
hopes, our nation can never really be decriminalized until the crime of
punishment of the young deviants is purged legislatively, admirnistratively and judicatively.
This twelve-year old delinquent would have
had a holistic career ahead, instead of being branded a murderer, had
a Children Act refined the Statute Book and the State set up Children's
Courts and provided for healing the psyche of the little human.
Conceptually, the establishment of a welfare-oriented jurisdiction
over juveniles is predicated and over-judicialisation and over-formalisation of court proceedings is contraind;cated.
Correctionally speaking, the perception of delinquency as indicative of the person's underlying difficulties, inner tensions and explosive stresses similar to those
of mal-adjusted ch'ldren, the belief that court atmosphere with forensic
robes, gowns and uniforms and contentious disputes and frowning paraphernalia like docks and stands and crowds and other criminals marched in and out, are psychically traumatic and socially stigmatic, argues
in favour of more informal treatment by a free mix of professional and
soda! workers and experts operating within the framework of the law.
There is a case to move away from the traditional punitive strategies
in favour of the nourishing needs of juveniles being supplied by means
of a treatment-oriented perspective.
This radicalisation and humanisation of jus juvenalis has resulted in legislative projects which jettison
procedural rigours and implant informal and flexible measures of freely
negotiated non-judicial settlement of cases.
These advances in juvenile criminology were reflected inter alia in the Children Act, 1960.
The rule of law in a Welfare State has to be operational and, if the
State, after a make-believe legislative exercise, is too insoucient even
to bring it into force by a simple notification, or renew it after its oneA
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year brevity, it amounts to a breach of faith with the humanism of our
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suprema lex, an abandonment of the material and moral well-being
promised to the children of the country in Art. 39(f) and a subtle discrimination between child and child depending on the State where it is
tried.
We hopefully speak for the neglected child
and wish
that
Bihar-md, if there are other States placed in a similar dubiety or
dilemma, they too-did make haste to legislate a Children Act, set up
the curial and other infra-structure and give up retributivism in favour
H
of restorative arts in the jurisdiction of young deviants.
Often, the
sinner is not the boy or girl but the broken or indigent family and the
indifferent and elitist society. The law has a heart-or, at least, must
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[1978] 1, S.C.R·
have.
Mr. Justice Fortas, speaking for the U.S. Supreme Court in
Kent v. United States, said:
"There may be grounds of concern that the child receives
the worst of both worlds; that he gets neither the protection
accorded to adults nor the solicitous care and regenerative
treatment postulated for children."
[383, U.S. 541, 556 (1966), quoted in Siddique, supra,
p. 149]
The Indian child must have a new deal.
Now we move on to a realistic appraisal of the situation.
The
absence of a Children Act leads to a search for the probation provisions
as alternative methods of prophylaxis and healing.
In 1951, the
UNESCO recommended a policy of probation as a major instrument
of therapeutic forensics.
Far more comprehensive than s. 562 of the
Code of Criminal Procedure, the Indian Act still leaves room for improvement in philosophy, application, education and periodical review
through Treatment Tribunals, to mention but a few.
We, as judges,
are concerned with the law as it is.
And one should have thought
that counsel in the courts below would have pleaded, when the appellant was convicted, for probationary liberation.
The decisive date for
fixing the age under s. 6 is when the youth is found guilty.
But here
the offence charged is one punishable with death or life imprisomnent
and the crime proved at the High Court level is one punishable with
life-term.
The Act therefore does not apply.
We venture to suggest
that in marginal cases this age-punishability rigidity works hardship
but making or modifying laws belongs to the Legislature.
Even so,
Chief Justice Sikri complained,
inaugurating the
Probation Year
( 1971)
" ... But is it enough to pass a law and say that probation
is a good thing ? Not only should the serious student and
Probation Officers be convinced of its advantages but the
Judiciary and the Bar must also become its votaries.
Unfortunately at present, very little serious attention is paid to
this aspect by the Judiciary and the Bar.
As a matter of
fact I was shocked to see that in a number of cases, which
came to the Supreme Court recently, even the existence of the
local Probation of Offenders Act was not known, or easily
ascertainable.
No reference to the relevant Probation Act
was made in the court below but the point was for the first
time taken in the grounds for special leave to appeal to the
Supreme Court."
*
*
*
*
"It seems to me that if an accused person is likely to be
covered by the Act, and his age appears to be about 21,
efforts should be made by the investigating agency •)f the
prosecuting counsel to collect material regarding
th~ age.
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HIRALAL v. BIHAR (Krishna Iyer, J.)
309
You are all aware that the exact age is known to very few
A
persons in rural areas.
I also think that a Magistrate should himself try this
question early, if there is any possibility of the applicability
of the Probation of Offenders Act."
(Social Defence : Vol. VII, No. 25, July. 1971-Quarterly review published by the Central Bureau of Correctional
S
Services, Department of Social Welfare, Government of
India).
We repeat that liberal use of the law is its life.
Anyway, now that probation also is out of the way, what incarceratory impost is just ? 'Prison should serve the purposes of confining people, not of punishing them' (Justinian). As the 'Guidelines for Sentencing' published by the National Probation and Parole
Association, New York, 1957 states:
"Imprisonment is the appropriate sentence
when
the
offender must be isolated from the community in order to protect society or if he can learn to readjust his attitudes and
patterns of behavior only in a closely controlled environment."
So we come up to the harm of long shut-up behind the bars.
Subjected to hard labour that rigorous imprisomnent implies and exposed
to the deleterious company of hardened adult criminals, a young person, even if now twentyone, returns a worse man, witl1 more vices and
vengeful attitude towards society.
This is self-defeating from the correctional and deterrent angles.
How then shall we rehabilitate this youth who has stood nine years
of criminal proceedings, suffered some prison life and has the prospect
of hardening years ahead ? This is not a legal problem for traditional methods. A vehement critic, in overzealous emphasis,
once
said what may be exaggerated but carries a point which needs the
attention of the Bench and the Bar. H. Barnes wrote :
"The diagnosis and treatment of the criminal is a highly
technical medical and sociological problem for which the
lawyer is rarely any better fitted than a real estate agent or a
plumber. We shall ultimately come to admit that society has
been unfortunate in handing over criminals to lawyers and
judges in the past as it once was in entrusting medicine to
shamans and astrologers, and surgery to barbers. A hundred years ago we allowed lawyers and judges to have the
same control of the insane classes as they still exert over the
criminal groups, but we now recognize that insanity is a highly
diversified and complex medical problem which we entrust
to properly trained experts in the field of neurology and
psychiatry. We may hope that in another hundred years
the treatment of the criminal will be equally thoroughly and
willingly submitted to medical and sociological experts."
(p. 74, Sentencing and Probation, supra)
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SUPREME COURT REPORTS
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We have to turn to correctional and rehabilitative directions while
confirming the four-year term.
We affirm the period of the sentence
since there is no particular reason why a very short term should be
awarded.
When a young person is being processed correctionally,
a sufficient restorative period to heal the psychic wounds is necessary.
From that angle also a term which is neither too short nor too long
will be the optimum to be adopted by the sentencing judge.
However, the more sensitive question turns on how, behind the prison walls,
behavioral techniques can be built in to repair the distortions of his
mind.
Stressologists tell us, by scientific and sociological
research,
that the cause of crime in most cases is inner stress, mental disharmony
and unresolved tension.
In this very case, the lad of twelve
was
tensed into irresponsible sword play as a result of fraternal provocation and paternal injury. It is, therefore, essential that the therapeutic orientation of the prison system, vis a vis the appellant, must be
calculated to release stresses, resolve
tensions
and
restore inner
balance.
This is too complicated a question and, in some measure, beyond
the judicial expertise, so that we have to borrow tools and techniques
from specialists, researchers and sociologists.
The ancient admonition
of the Rigveda,
an ;it •nn: 'P<l"fT '"<! f<rirara :
('Let noble thoughts come to us from every side-Rigveda 1-89-i)
is a good guideline here.
From Lenin and Gandhi to leading sociologists, criminologists and prison-management officials, it is established
that work designed constructively and curatively, with special reference
to the needs of the person involved, may have a healing effect and
change the personality of the qnondam criminal.
The mechanical
chores and the soulless work performed in jail premises under the
coercive presence of the prison warders and without reference to relaxation or relish may often be counter-productive.
Even the
apparel that the convict wears burns into him humiliatingly, being a
distinguishing dress constantly reminding him that he is not an ordinary
human but a criminal. We, therefore, take the view that within the
limits of the prison rules obtaining in Bihar, reformatory type of work
should be prescribed for the appellant in consultation with the medical
officer of the jail. The visitorial team of the Central Prison will pay
attention to see that this directive is carried out.
The appellant, q11ite
a young man, who was but a boy when the offence was committed,
shall not be forced to wear convict costume provided his guardians
supply him normal dress.
These harsh obscurantisms must gradually
be eroded from our jails by the humanizing winds that blow these days.
We mentioned about stressology.
One method of reducing tension is
by providing for vital links between the prisoner and his family.
A
prisoner insulate<l from the world becomes bestial and, if his family
ties are snapped for long, becomes de-humanised.
Therefore we
re.gard it as correctionally desirable that this appellant be granted
parole and expect the authorities to give consideration to paroling out
periodically prisoners, particularly of the present type for reasonable
spells, subject to sufficient safeguards ensuring their prober behaviour
outside and prompt return inside.
HIRALAL v. BIHAR (Krishna Iyer, J.)
3 I l
More positive efforts are needed to make the man whole, and this
A
1akes us to the domain of mind culture.
Modern scientific studies have validated ancient
vedic insights
bequeathing to mankind new meditationa:, yogic and other therapeutics, at once secular, empirically tested and trans-religious.
The psychological, physiologic and sociological experiments conducted
ou
the effects of Transcendental Meditation (TM, for short) have proved
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that this science of creative intelligence, in its meditational applications, transquillises the tense inside, helps meet stress without distress,
overcome inactivities and instabilities and by holistic healing normalises the fevered and fatigued man.
Rehabilitation of psychatrie patients, restoration of juvenile offenders, augmentation of moral tone and
.temper and, more importantly, improvement of social behaviour of
prisoners are among the provien findings recorded by
researchers.
C
Extensive studies of TM in many prisons in the U.S.A. Canada, Germany and other countries are reported to have yielded results
of
improved creativity, higher responsibflity and better behaviour. Indeed, a few trial courts in the United States have actually prescribed(')
TM as a recipe for rehabilitation.
As Dr. M. P. Pai, Principal of
.the Kasturba Medical College, Mangalore, has put down :
D
"Meditation is a science and this should be learnt under
guidance and cannot be just picked up from books.
Objective studies on the effects of meditation on human body and
mind is a modern observation and has been studied
by various investigation at MERU-Maharishi European
Research University.
Its tranquillising effect on body and
mind, nltimately leading to he greater goal of Cosmic ConsE
ciousness or universal awareness, has been studied by using
oVler a hundred
parameters.
Transcendental Meditation
practised for 15 minutes in the morning and evening every
day brings about a host of beneficial effects.
'Yo name
•Only a few :
I. Body and mind gets into a state of deep relaxation.
F
2. B. M. R. drops, less oxygen is consumed.
3. E.E.G. shows brain wave coherence with 'alpha' wave
preponderance.
4. Automatic stability increases.
5. Normalisation of high blood pressure.
6. Reduced use of alcohol and tobacco.
7. Reduced stress, hence decreased plasma cortisol and
blood lactate.
8. Slowing of the heart etc.
---
1. In the Superior Court of the State of Arizona-judgn1ent d/5-3-76 in
S'tate
of Arizona v. Jean Coston Presley-Case No. 6878;
H
Criminal Action No. 4-81750 in th~ U.S. District Court for Eastern Dhtrict
of Michigan-United States of America v. Robert Charles Rurch Jr.
A
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SUPREME COURT REPORTS
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The self of every man has been found to be his consciousness, and its full potential is found in the state OJ; least
excitation of consciousness, which is the most simple
of
awareness.
To sum up, inadequacy of 'alpha' waves is disease, and
mental health could he restored by increasing 'alpha' wave
production in the cerebral hemisphere instead of other type
of waves, seen in disease.
Five years' research has
given
encouraging results, and more work in this field is
being
done and results are awaited."
Lecture on 'Ancient Insights and Modern Discoveries
delivered under the auspices of Bharatiya Vidhya Bhavan
sponsored two-day symposium-Published in Bhavan's journal
d/July 17, 1977: P. 57 under the caption: The Mind of
Man : Importance of Mental Health .
A recent Article on TM and the Criminal Justice System in the
Kentucky Law Journal and another one. in the Maryland Law Forum
highlight the potency of TM in the field of criminal
rehabilitation
(Kentucky L. J. Vol. 60, 1971-72 No. 2; and University of Maryland
Law Forum, Vol. III, No. 2, Winter 1973)~
There is no reason,
prima facie, if TM physiologically produces a deep state of restful
alertness which rejuvenates and normalises the functioning of the nervous system, to reject the conclusion of David E. Sykes which he has
sunnnarized thus :
"Physiologically, T.M. produces a deep state of restful
alertness which rejuvenates and normalizes the functioning
of the nervous system.
Psychologically, T. M. eliminates mental stress, promotes
clearer thinking and greater comprehension; it enriches perception, improves outlook and promotes efficiency and effectiveness in life.
Sociologically, T. M. eliminates tension and discordance
and promotes more harmonious and fulfilling interpersonal
relationships, thus making every individual more useful to
himself and others and bringing fulfilment tci the purpose of
society.
The combined physiological, psychological and sociological changes produce an ovlerall effect af fullness of life.
The elimination of mental, physical and behavioral abnormalities through the release of deep stress produces a sense
of fulfilment and internal harmony.
It is interesting to
note that this development of life in increasing values
of
contentment and fulfilment has long been understood in
terms of spiritual development.
With the tools of modern
science, we can now systematically evaluate the objective
causes and expressions of this inner, personal development
produced by transcendental meditation."
J
H!RALAL v. BIHAR (Krishna Iyer, l.)
313
It has been repeatedly pointed out in the literature bearing
on
the subject that TM is just not religion, and is like physics
applied
to human consciousness.
Even so, it is not for the court, at the
present stage, to prescribe- what the prison authonties should do wi'h
the appellant while he is in their charge.
Nevertheless, we emphasize how important it is for the prison department to explore, experiment and organize gradually some of these reformative exercises in
order to eliminate recidivism and induce
rehabilitation.
We
make
these observations in the expectation that, facilities being available
and the prisoner's consent being forthcon1ing, he will. be given, under
proper initiation and medical authorisation, courses which will
refine his behaviour, develop his full potential and thereby justify the
justice of his forced tenancy for four years.
An afterword on power.
Within the limits of the Prison
Act
and rules, there is room for reform of the prisoner's progress. And
the court, whose authority to sentence deprives the sentence of his
constitutional freedoms to a degree, has the power-indeed, the dutyto invogorate the intra-mural man-management so that the citizen
inside has spacious opportunity to unfold his potential without oversuch inhibition or sadistic overseeing.
No traditional judicial handsoff doctrine nor Prison department's Monroe doctrine can d'ssuade or
disentitle this Court from issuing directives, consistently with
law,
for the purpose of compelling the institutional confinement to conform to the spirit and standards of the fundamental rights which belong to the man walled· off.
We cannot, in all conscience, order him
to be shut up and forget about him.
The broading presence
of
judical vigilance is the institutional price of prison justice.
We have soujourned in the sentencing chapter of this judgment
for so long, our anxiety being to work out purposeful incarceration
shot with just and effective prescription.
Red-hot rhetoric or flaming recommendations can have no more than romantic value
since
statutory authority is the only sanction behind a court's directive.