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Penology and Young Offenders

R. Mallikarjuna
The most sensitive area in criminal trials is sentencing. It may be shocking and excitement may run high for both defence counsel and accused person when the stage comes of handing down the sentence.
Crime, says George Nicodotis, is the result of the lack of right kind of education. And young offenders are prone to commit crimes for various reasons and the courts have either punished or admonished or acquitted or discharged. And some are severely punished by giving visa to jail. And in jail, many nerve shocking and mind-boggling activities take place. And back out of jail, impact, approach and behavioral aspects of young offenders and repercussion on the society and responsibility of parents are a few pregnant issues. Perhaps, this is a billion dollar question for which State and sentencing judges are answerers.
A proper sentence to a young offender is a composite of many factors, including the nature of the offence including the circumstances, extenuating or aggravating of the offence, the prior criminal record, if any — the age of the offender, the professional and. social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community.
Offenders physical features should not be the touchstone while awarding sentence. A man may look ugly or mischievous/criminal by his external appearances, but may be, if he is reformed, he may fit into the society and give up 'crime-borne-activities'. So much so, impartiality, while sentencing must be kept aside, for impartiality is rather difficult to attain in any situation. Scrutton LJ makes insightful observation about 'impartiality' (1921) 1 CL J6(8)
"I am not speaking of conscious impartiality, but the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish".
Judicial responsibility is not mechanistic but humanistic and ritualistic Magistrate is a misfit Magistrate plays a key role in this field and he should field the court properly, when an young offender is before him. Sessions Judges too, play equally paramount roles while handing down the sentence where young offenders are involved and they should exercise great care and caution while sentencing young offenders along with others.
Acquitting three juvenile offenders, on the concurrent convictions of two sentencing courts, Justice Krishna Iyer wrote this thought provoking passage AIR 1979 SC 1519 : 1979 Cri LJ 943.
"It is not as if these little lads are incorrigible rapists or violent toughs running amuck, parental neglect, tempting opportunity, sex perversion, libidinous enviorns and a host of other facts where State inaction is contributory to exciting adolescent erotica, count for vulger, vicious or violent deliquency".
Many a time, young offenders are sentenced without considering or applying probation laws and Children Act. In this context, it is worth recalling and remembering the following statement of the Learned Judge F Ryan Duffy of the United States of Supreme Court in Williams v. New York (1948) 337 US 241 (249)
"Pre-sentence reports have been given a high value by conscientious judges who want to sentence person on the best available information rather than on guesswork and inadequate information".
Learned Judge further tells a word of caution for sentencing judges :
"If the judge has before him a complete and accurate pre-sentence investigation report which sets forth the conditions, circumstances, background, the surroundings of the defendant, and the circumstances underlying the offence which has been committed, the judge can then impose sentence with greater assurance that he has adopted the proper course. He can do so with at most great peace of mind".
Law, it has been said, is the finest flower of human civilisation. For various reasons, the State has failed to water this finest flower.
Men are not bad, says Brandeis J. and further tells that men are not degraded, because they desire to be so, they are degraded largely through circumstances.
Whether jail for juveniles and young offenders or not should first be borne in mind and before sentencing them it is the duty of the State defence counsel and the sentencing judge to remind about the various reformative laws made for juveniles and young offenders. If the State and the defence counsel fail to remind, it is the paramount and quintessential duty of the sentencing judge to remind prosecutor and the defence counsel and not mechanically passing sentence laconically. And, it should not be forgotten that 'every saint has a past and every sinner a future' By sentencing youthful offender forgetting the above maxim for what it is worth is frustrating and truncating the future of the young offenders, so much so, the sentencing judge should be extra cautious and alert while handing down sentence and mechanical and mistaken sentencing would create dent in the future life of offenders.
The main four objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution and reformation is well recognised and does not, in my view, open to dissent Punishment is calculated to act as a warning to others against indulgence in the anti-social act for which it is visited. It acts as preventive because the incarceration of the offender, while it lasts, makes it impossible for him to repeat the offending act.
The finest example in the reformative direction, upholding sentence passed by Sessions Judge on two young boys found guilty of murder, Justice Krishna Iyer directed the sentencing judge to make jail visits to ensure compliance. The following passage occurs in the report. AIR 1978 SC 1091 : 1978 Cri LJ 766.
"........instead of bolting these two young men behind the high walls of a prison and forgetting about them, humanising influences must be brought to bear upon them so that a better sense of responsibility, a kindlier attitude, behavioral maturity and values of a good life may be generated under controlled conditions. In this view, we direct the State Government to issue appropriate instructions to the jail authorities to give these prisoners treatment which is not likely to degrade or offend dignity and decency but uplift and elevate. Work has a curative property but the kind of work assigned must be satisfying not degrading. The Medical Officer concerned will also be consulted on the proper prescription in this behalf. Furthermore if the behaviour of these two prisoners shows responsibility and trustworthiness, liberal, though cautious parole will be allowed to them so that their family ties may be maintained and inner tensions may not be further built up.... interviews by family members must be afforded as often as are sought Useful crafts must be taught inside prison and studies encouraged".
The stage should set up a separate cell to ensure that young offenders say between 15 to 25 are lodged in altogether different jails. They should be educated — both on the price of crime and its consequences on the long run. If necessary, suitable amendment may be brought in the Code; so that a sentencing judge and jail authorities comply the mandate of the law strictly and prevent another crime, namely — young offenders becoming seasoned offenders thus unleashing anti-social elements on the innocents, causing security and law and order problem to the society.
The essence of sentencing is not to push them behind tall walls and if that is done forgetting the basic purpose of confinement, the following finer lines are worth reminding and remembering once a while :
"If you treat a man like an animal, then you must expect him to act like one. For every action, there is reaction. This is only human nature. And in order for an inmate to act like a human being, you must treat him as such. Treating him like an animal will only get negative results from him"
Sentencing young offenders without applying various laws meant for them is itself a grave miscarriage of justice. And its impact on the young offenders mind will have far reaching consequences. Perhaps, the imprisoned poet, Oscar Wild's bitter best lines are worth reproducing here :
I know not whether laws be right
or whether laws be wrong
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year
A year whose days are long.
I think Parliament should bring out a suitable legislation to save the young offenders turning into real criminals.
With the population figure soaring high, Unemployment problem in the country is stinking — resulting in many educated youths being frustrated taking to crime — either being influenced by cinemas or with a view to make a quick buck.
By the turn of this century, it may become very difficult, if not impossible, to handle the situation. It looks to me, young offenders problem is as important as country's defence problem. Sooner it is diagnosed better and safer it is for the country and its citizen.
I think time alone is the best cure.

R. Mallikarjuna