Report No.264

Chapter V

Proportionality of Punishments in Sections 272 and 273 of the IPC

5.1 In comparison to the Food Act, the IPC prescribes inadequate punishments firstly for adulteration that results in making food articles noxious and secondly for actual sale of noxious food articles. The inadequacy of the quantum of punishment prescribed in the Code necessitated the present reform initiative. Given the importance of hygienic, nutritious food for the maintenance of healthy lives, it would appear that the maintenance of its safety is essential to public health in a commercialized world where individuals obtain their nutrition from food articles produced by others. A legal system must be comprehensive enough to meet the demands of this significant health and other social issue, providing protection against anti-social elements endangering health and human lives by adulteration.

5.2 The threat to the safety of food is its adulteration by individuals for profit and the mode of defence against this threat is the effective criminal justice system equipped with penal provisions for such acts. Much is written about the appropriate method by which penalties should be provided for a criminal legislation. The law generally provides ample scope for discretion on the part of judges to modulate punishment to meet the peculiar circumstances of each case. In some instances, however, the penal provisions are made more restrictive so that the circumstances under which punishments are inflicted are laid down in the law itself.

This limitation on judicial discretion is aimed to ensure that a vital message of deterrence goes to society, undiminished by any circumstance which may be put forward for lenient sentencing. In such instances, the law prescribes criteria that must be met for different ranges of punishment and streamlines the law for its effective application by foreclosing the scope of consideration of these circumstances in sentencing.

5.3 In our country, the foremost aide in determining the appropriate quantum of punishment is the judicial decisions that has evolved in course of time. The Law Commission proposes modification of Sections 272 and 273 of the IPC so as to bring the penal framework in it on par with the existing punishments scheme provided in the Food Act and the State Amendments to the Code.

Whereas the State Amendments made in section 272, 273 of the IPC enhance the overall quantum of punishment, the proposal in this Report is the prescription of punishment that is graded according to the nature of the act (intentional or otherwise) and the extent of harm suffered by the victims of adulterated food. This is apposite, as merely raising the overall punishment may leave the matter free for courts to adopt lenient or otherwise attitudes from time to time. The State amendments do make an attempt to restrain such attitudes. We may, for example, see the Odisha amendment, which reads as follows:

In section 272 for the words "shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both", the following shall be substituted, namely:-

"shall be punished with imprisonment for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment which is less than imprisonment for life."24 The Uttar Pradesh and West Bengal amendments to section 272 of IPC run along the same lines.

5.4 On examination of the issue the law Commission is of the view that the appropriate punishment scheme to be adopted is, the one that exist in section 59 of the Food Act. The State amendments do raise the overall limit of punishments but the mode of restraining leniency does not create an appropriate framework. The individualisation of punishment require drawing a balance between 'the punishment' with 'the gravity of the offence', designing the penalties as per the social challenges that the offences may raise.

The governing principle in this area is the principle of proportionality of punishments. By prescribing a maximum punishment of life imprisonment and requiring courts to give "adequate and special reasons" for deviation from the same, the provisions of the State amendments would push up the aggregate quantum of sentences for this crime. Moreover, by leaving open the range of punishment from few months all the way up to life imprisonment with no guiding principle except the words "adequate and special reasons", the provision may allow for the evolution of an alternative punishment framework in which case law could fix upon various contingencies that may be used as mitigating factors. Therefore, as stated above, there is a clear requirement that the relevant provisions must have enhanced punishments that are meted out with certainty so that the required deterrent effect persists.

5.5 The 'principle of proportionality' works side by side with the principle of deterrence by making clear the situation and circumstances under which leniency of punishment is to be adopted. The listing of punishments in the proposed amendments to Sections 272 and 273 is as follows:

"(i) where such adulteration does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees;

(ii) where such adulteration results in non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees;

(iii) where such adulteration results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which shall not be less than five lakh rupees;

(iv) where such adulteration results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh rupees:

Provided that the court may, for adequate reason to be mentioned in the judgement, impose a sentence of imprisonment which is less than imprisonment for life:

Provided further that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided also that any fine imposed under this section shall be paid to the victim.".

5.6 The quantum of imprisonment and fine both enhances as the gravity of the harm arising from the offence rises. There is no denial of the fact that prescribing the "appropriate penalty" is a very complex and difficult tasks. However, in view of the demands of society, the law must fix a particular criteria as the foremost principle guiding the quantum of harsher punishment. In such a case, the gravity of harm from the offence has been chosen as the appropriate criteria; and the intent is to put individuals on guard that their act would be measured in light of the consequences that may arise from them. The Supreme Court has made extensive reference to appropriate sentencing and the role of proportionality in sentencing. Here, we may look into extracts from judgements that the Commission has considered in adopting the abovementioned punishment scheme.

5.7 In Alister Anthony Pareira v. State of Maharashtra,25, the Apex Court was considering the enhancement of sentence for an offence under Section 304 Part II. It stated, regarding the method to be adopted:

"The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.".

5.8 It may be relevant to say that without any legislative guidance, the courts usually consider a wide range of circumstances in determining the appropriate penalty. This proposition, as well as the requirement that all relevant criteria be considered thoroughly, may however be taken care of by the legislature to create adequate deterrence through certainty of punishments.

5.9 The judicial and legislative search for appropriate penalties in the case of intractable and grave crimes like rape is instructive. In the case of State of Karnataka v. Krishnappa,26, the Apex Court has stated: "The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Socio-economic status, religion, race, caste, or creed of the accused or the victim are irrelevant considerations in sentencing policy.

Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstance bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crimes of rape on innocent helpless girls of tender years as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court.".

5.10 Such expositions are significant because the set of criteria that courts have found to be relevant to the question of sentencing has always been limited to ensure that irrelevant considerations do not result in uncertain, variable punishments that arbitrarily allow some perpetrators to go scot-free; while others are greeted with heavier burdens. It is also significant that the punishment is more individualized to the characteristics of the offence than the characteristics of the perpetrator. This operation of limiting matters of relevance to the quantum of punishment may be taken forward so that only the most relevant facts regarding the gravity of the offence hold sway over other considerations.

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