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TMI Blog1977 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their 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 involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the crime is substantially the same as that of the other two. When a crime is committed by the concerted action of a plurality 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, 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 head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained 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 disposition is a criminological heritage, marred, of course, 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 ,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 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 when a near-pubescent accused is marched into a criminal court, the Bench and the Bar will be alerted about jus juvenalis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective sentences with a proper attitude and manner will theym perform their expected function of decreasing the rising number of criminal and quasi-criminal activities in this nation (p. 364) (1) 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 criminals is one of the most unfailing tests of the civilization of any country. (p. 68) (1) By that unfailing test we fail, if we betray brutality towards children 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 : 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. 1 8) (1) 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 valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 astigmatic, argues in favour of more informal treatment by a free mix of professional and social 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 nonjudicial 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 insouciant even to bring it into force by http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14 a, simple notification, or renew it after its one year brevity, it amounts to a breach of faith with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or the prosecuting counsel to collect material regarding the age. You are all aware that the exact age is known to very few 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, supra) 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. How ever, 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igious. The psychological, physiologic and sociological experiments conducted on the effects of Transcendental Meditation (TM, for short) have proved that this science of creative intelligence, in its meditational applications, transquillises the tense inside, helps meet stress without distress, overcome inactivations and instabilities and by holistic healing normalises the severed and fatigued man. Rehabilitation of psychatric patients, restoration of juvenile offenders, augmentation of moral tone and temper and, more importantly, improvement of social behaviour of prisoners are among the proven findings recorded by researchers. 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 responsibility and better behaviour. Indeed, a few trial courts in the, United States have actually prescribed(1) TM as a recipe for rehabilitation. As Dr. M. P. Pai, Principal of the Kasturba Medical College, Mangalore, has put down 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of David E. Sykes which he has summarized 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 to the purpose of society. The combined physiological, psychological and sociological changes produce an overall effect of fullness of life. The elimination of mental, physical and behavioral abnormalities through the release of deep stress produces a sense of fulfilment and internal hartnony. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vintage measures lost in the statute book like the Reformatory Schools Act as well as the Borstal Schools Act, apart from the Probation of Offenders Act and the rules under these laws. This study has served only to convince us that, while statutory guidelines to fix the quantum of punishment are marked by uncanalised fuidity, the court s correctional role in meaningful sentencing is marginal, justifying judge Marvin E. Frankel s cynical expression-Criminal Sentences : Law without Order. The Rai prisons continue gerentologically in their grimy grimness; the dress, diet, bed, drill, Organisation and discipline why, even the philosophy and fears-have hardly responded to rehabilitative penology or humane decency. Indeed, it is still an attitude of lock them up and throw away the key , save for some casual open Jail experiments and radical phrases in academic literature. We omit the Chambal oasis where changes are being tried out. And this is a startling anti-climax when we remember that our Freedom Struggle had found nearly all post-Independence leaders in wrathful incarceration and most India Ministers, now and before, had been no strangers to prison torments. The time, has come, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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