T H E Legal Frame-Work of Probation in India: S. P. Srivastava

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THE LEGAL FRAME-WORK OF S. P.

SRIVASTAVA*
PROBATION IN INDIA

Probation, apart from its social meaning shortcomings, when looked from a sociolo-
and implications, is essentially a judicial gical perspective. This paper, therefore,
process. It is a judicial act of suspending proposes to critically examine various pro-
sentence on probation. Social investiga- visions under these acts as socio-legal de-
tion and supervision, though form an inte- vices "for alleviating the harshness of
gral part of this process, yet the major role punishment and preventing contamination
in the system and its function is, however, of the criminal novice in the unsavory at-
assumed by the judiciary. Technically, mosphere of the prison into a method of
therefore, probation is not a scheme; it is social treatment and rehabilitation." 2 The
a judicial system. The right to decide the proposed examination of the legal incon-
eligibility for a release on probation, and sistencies has been made to highlight the
determining its conditions and finally gett- importance of the social aspect of proba-
ing them executed is the prerogative or tion, which inevitably is the moving spirit
discretion of the judge. The whole system behind the growth and development of
of probation is administered under specific hitherto existing legal framework in this
legal enactments and the judiciary alone country.
has the upperhand in its execution part.
While implementing the spirit of proba- The social implications of the broader
tion Acts, it carries the vested consent of legal framework of probation in India can
the legislature and thus remains supreme. be analysed under the following headings:
This brief paper reflects upon the legal
framework of probation in India, which 1. RELEASE OF OFFENDERS AFTER
in 12 states is covered by the Probation of ADMONITION
Offenders' Act 1958 and in some states by
their own specific Acts. Areas not covered The offences for which the probation is
by such acts are served by Section 562 of granted are those which have been inclu-
the Criminal Procedure Code (Act of 1898). ded under sections 379, 380, 381, 404, 420
of the Indian Penal Code or any offence
These laws which have been acclaimed punishable with imprisonment for not
by our Supreme Court as "milestone in the more than two years, with or without fine
process of modern liberal trend of reform or both, in the cases of first offenders with-
in the field penology"1 are not perfect and out any record of criminal conviction. The
necessarily free from inherent flaws and release of the offender on probation of

* S. P. Srivastava is Lecturer, Department of Sociology and Social Work, University of


Lucknow, Lucknow.
1
Ratan Lal V. State of Punjab, A.I.R. 1963, S. C, 444.
2
Richard Homer Cummings, Attorney General's Survey of Release Procedure, Vol II,
Probation, Deptt. of Justice, Washington, D. C, p. VII, 1939.
264 S. P. SRIVASTAVA

good conduct under section (4) of the Pro- right, but in the Act the term "good beha-
bation of Offenders Act, 1958 is made after viour" which is the basic condition for re-
due admonition. The Criminal Procedure lease, however, remains unprecisely defin-
Code of 1898 (Section 562: IA) and the ed. In usual practice the offender signs a
Probation of Offenders Act 1958 (Section 3) bond before the magistrate for refraining
is, however, conspicuously silent on defin- from any breach of peace and for abiding
ing the nature and type of this admoni- the instructions of the probationofficer
tion. This is an obvious legal lacunae and during the period of this bond of good con-
may be misused and misinterpreted. In duct. All this seems to be too vague and a
the absence of any definite outline or mo- broader outline of the general and specific
del, it may cause serious doubts in the behaviour expected by the custodians of
minds of those to whom chiding, scolding law, may perhaps be more desirable. In
or any other form of admonition adminis- view of Indian conditions where bulk of
tered by the court seems an anachronism our offenders are illiterate it is desirable
in view of the modern developments in that the wordings of the bond of good be-
penology and correction. Often the words haviour be properly explained to them in
are sharper than the sword. The impact of an ordinary language.
this legal device can be more disastrous
than punishment if the words are not care- Once again a proper selection of the
fully and suitably choosen. Since the pro-
cases becomes more important. Indiscri-
bation has rehabilitative goals, the judge
minate use of this provision might provide
or the executing authority cannot perform
a room for easy let off of the offenders and
this delicate job indiscriminately and in a
make an impression in the public mind
routine manner. Careful selection of the
that the probation is really a form of leni-
cases in which the 'admonition' could have
ency. Proper and judicious selection of the
some therapeutic effect is also very neces-
probationers can maintain a balance bet-
sary, as the common general application of
ween twofold goals of probation, i.e., treat-
the provision in the highly individualized
ment and rehabilitation of the offender as
probation system can affect the probation-
ers thinking and outlook rather too adver- well as the protection of society from reci-
sely. The law must be clear in this respect divists and other anti-social elements.
to avoid any confusion and the courts must
evolve suitable criteria of selection of right The provision is all the more dubious in
type of cases and the corresponding nature the cases of young offenders who when
of admonition which may suit them. easily released on a simple 'surety bond'
might feel tempted to commit offences
2. RELEASE OF OFFENDERS ON GOOD
again, regardless of the consequences. Cri-
CONDUCT
minal parents might take an advantage of
this provision and encourage their young
The provision for conditional discharge towards an easy life of crime. To check
under section 562: 1 of the Cr. P.C. and any such misuse of the legal leniency and
the section 4 : 1 of the Probation of a possible recidivism among casual offend-
Offenders Act 1958, envisages that the ers, it is perhaps necessary inview of the
offender can be released on the written social objectives of probation to seek clari-
assurance or bond of keeping good conduct fication in terms of its specific use in the
for a specific period. In principle it is all suitable cases. This shall also clear the
THE LEGAL FRAME-WORK OF PROBATION IN INDIA 265

room for any doubt or judicial indiscre- the court. The spirit incorporated in the
tion. phrase "circumstances of the case includ-
ing the nature of the offence and the cha-
Sociologically speaking 'probation with- racter of the offender" can be best used
out supervision' is a misnomer and contra- only on a carefully prepared social investi-
diction in terms. There cannot be proba- gation report of the probation officer. The
tion without supervision. Even if the use section 4 of the probation of Offenders Act,
of conditional discharge has to continue 1958, therefore, requires necessary amend-
for the reasons of economy and adminis- ments.
trative convenience in our country, it
"A good pre-sentence report should be
should be treated as a clerical or fiscal
in general terms rather than rigidly pres-
chore of record keeping as to fines, restitu-
cribed. It should provide the court not
tion, support, etc. and need not involve the
merely a recital of the objective facts of
use of probation personnel, thus reducing
offenders background, prior record, marital
the case load.
status, employment history etc. but should
also contain definitive information of the
3. PRE-SENTENCE INVESTIGATION REPORT
offender's attitude, feelings and potentials
for change. If this is not done it is far too
Under section (4 :1) the Probation of easy for a kind of legalistic social determi-
Offenders Act 1958 provides that before nism to dictate the court's disposition"3 re-
recommending a conditional discharge, the marked Bens. Meeker, the Chief U.S. Pro-
court shall take into account the report bation Officer and Director Federal Pro-
if any of the probation officer in relation to bation Training Centre, U.S.A.
the case. The word 'if any' clearly implies
that pre-sentence investigation report of
4. REPORT OF THE PROBATION OFFICER
the probation officer is not necessary for
TO BE CONFIDENTIAL
the order of the court. The soundness of
the court's judgement is always debatable
in the absence of any such document. De- The report of the probation officer re-
cisions without considering facts contained ferred to in sub-section (2) of the section
in an ideally constructed pre-sentence in- (4) or sub-section (2) of the section (6) shall
vestigation report proforma, can be fairly be treated as confidential. But it further
questioned on the grounds of their judici- adds that "the court may if it so thinks fit
ous selection. It can therefore be safely communicate the substance thereof to the
recommended that a clear legal basis be offender and may give him an opportunity
provided for the preparation of pre- of producing such evidence as may be re-
sentence report to assist the court in sen- levant to the matter stated in the report."
tencing. The submission of the report The rule which protects the confidentia-
should be made compulsory in all cases of lity of the information in pre-sentence in-
first offenders and no court should issue vestigation report is appreciable but it can
the probation order without the receipt of be favoured only in its limited use. Since
such a report from a probation officer or the report may become a part of the trial
any other competent person appointed by of the offender, it is in consonance with pre-

3
Meeker, Ben S., 'Probation as a Sentence', The Canadian Journal of Corrections,
Vol. 9, No. 4, October, 1967, p. 293.
266 S. P. SRIVASTAVA

serving the civil rights of the offender that opportunity to the probation officer for
he should be fully aware of the report and making some specific and desirable recom-
be allowed to cross-examine the probation mendations for the case in each report to
officer upon the contents as is the case be submitted by them. As a safeguard to
with any other evidence presented in the this enhanced power of probation officer,
court. This practice is being currently em- the final authority to partially or totally
ployed in Western countries. In confor- accept or reject these recommendations
mity with the modern developments in the may still be retained as a privilege to the
criminal justice the court should before conditions for the specified period, accept-
disposition ensure that the offender or his work of probation cannot be called an en-
counsel have had a chance to read the re- croachment or usurption of judicial func-
port and have an opportunity to comment tions by the probation officers. Instead,
on it. On this point United Nations this shall make them feel more important
Seminar "The Medico-Psychological and and perhaps more duty conscious.
Social Examination of Delinquents" agreed
that "so long as the court is concerned with 5. CONDITIONS OF PROBATION
questions of guilt and criminal responsibi-
lity, any material used by the court must
The Probation of Offenders Act, 1958
be communicated to the defence."4
makes a provision for conditional discharge
of the offender with or without the supervi-
The probation Acts are vaguely silent on
sion of the probation officer. These condi-
the question whether the report of the pro-
tions include acceptance and fulfilment of
bation officer should be oral or written.
conditions for the specified period, accept-
Perhaps in Indian judicial system it is im-
ance of supervision and due observance of
plied that these reports shall be in black
and white. But still, there is no harm if certain restrictions of movement, behavi-
this possible confusion may be avoided by our, employment residence, companion-
slightly changing the words of the law. ship, use of intoxicants and complete acce-
ptance of the orders / instructions given
In order to attach a desirable importance by the probation officer from time to time.
to these reports, it should also be clearly
mentioned that these reports (provided The rehabilitative or reformative utility
they are not perfunctory in nature and con- of these conditions is disputed on more
tents) should become a necessary docu- than one score:
ment in the court proceedings. It is our
common experience that the report of the Firstly, it is our experience that most of
probation officer is shelved into back- the offenders sign the bond without con-
ground when the question of taking a deci- testing these conditions of discharge. They
sion arises. In most cases the court's action know that at any slight disinclination, dis-
is based on the legal interpretation of the sent or refusal on their part to sign the
rules rather than their social implications. bond, their release on probation may come
This is a marked weakness of the scheme to stake. It is therefore too much to as-
which can be easily rectified by giving an sume that the offender has shown (by

4
Ibid., p. 295.
T H E LEGAL FRAME-WORK OF PROBATION IN INDIA 267

merely signing it) his willingness or con- modern social casework techniques of
sent for a faithful observance. counselling and guidance.

Secondly, the Universal application of In view of these draw backs the ideal
the rigid and fixed conditions of discharge situation would be to permit "a discretion
is an open denunciation of the principle to the judge to impose probation, as each
of individualized treatment of offenders. case dictates regardless of the offence" and
Because of the formally fixed discharge further the authority be vested in the
conditions both the probationer as well as judge" to impose any pertinent and reason-
probation officer find it difficult to make able conditions as terms of probation with
any changes inview of the individual re- the conditions to be realistic and not auto-
quirements of the case. matic." 5

Thirdly, the residential and employment 6. PAYMENT OF COMPENSATION AND


requirement of the offender is against the COSTS
fundamental principle of casework entitled
"environmental modification." In seve- Section (5) of the Probation of Offenders
ral cases the re-arrival of the offen- Act 1958, provides for the release of the
der to the same socio-economic and cultu- offender after the payment of compensa-
ral milieu, which has played a significant tion or fines which the court in its discre-
part in his earlier criminality or deviation, tion thinks reasonable for loss or injury
can not be justified. The probationers caused to any person by the commission of
right to change of place and employment the offence or the cost of the proceedings.
with the permission of the supervising pro- But this compensatory amount has not
bation officer must be acceded to them, in been fixed and any civil court can collect
order to improve the chances of their reha- any amount under section 40 of the Act.
bilitation and lessening the risk of recidi- The probation act is also silent on the sys-
vism. tem of assessing the financial ability to pay
and provides no definite criteria to judge
Fourthly, prescribing absention from us- the offenders' economic background. The
ing intoxicants (particularly the mild ones) provision in all likelihood may be misused.
seems to be a too puritan condition of pro- The object behind this provision of paying
bation in modern times. compensation to the victim is to receive an
admission of the guilt from the offender
Lastly, the nature of supervision should and therefore it should not be made a sub-
also be clearly defined. It should be dis- stitute for civil process.
tinguished from police surveillance and
should rise above the mere watchfulness of 7. FAILURE TO OBSERVE CONDITIONS
the actions of the probationer. It is a too OF BOND
technical task and should be undertaken
carefully by the probation officers who ne- The Probation of Offenders Act 1958
cessarily have a thorough orientation in authorizes the court under section (9) to

5
Goldberg W. A., Adult Probation in the United States, 1968, The Canadian Journal
of Corrections, Vol. II, No. 2, April 1969, p. 103.
268 S. P. SRIVASTAVA

issue a warrant of arrest or summon to Strangely enough the Probation of offen-


him or his sureties to appear before the ders Act 1958 and other state probation
court on the basis of probation officers re- acts do not give any credit for the time
port or otherwise, and subsequently sen- served satisfactorily on probation, in the
tence him for the original offence or im- cases of violation. The act may be suitably
pose a penalty not exceeding fifty rupees. amended to provide benefit to the offender
for the time served earlier. The legal cla-
The provision makes it obligatory on the rity on these minor points might remove
part of the court to wait for the report of many doubts in the minds of those who
the probation officer supervising the case mainly look at the sociological perspective
in the event of his failure to abide by the of probation service.
conditions of the probation order.
The debate on legal framework of pro-
The Act has made no mention that the bation service in India does not close here.
information for the courts' action be sent Besides these legal ambiguities and incon-
to the probation officer when the fresh sistencies, there are some other points con-
proceedings in the case of the probationer nected with it which too cannot be ig-
has begun. This is a definite lacunae and nored.
probation officers might legitimately feel
neglected. Even if the court has started In our country the judges have, how-
action on the breach of probation orders
ever, been unable to realize the immense
on the information available from any
social importance of probation and are us-
other source than the probation officer's
ing it in a restricted way. This can be sta-
report, the probation officer has always
tistically proved that only an insignificant
something to say and enlighten the court
minority of offenders is being placed on
in the case of the probationer on the basis
of his intimate personal contacts with him. probation. It is apprehended that some of
our judges still think it a form of leniency.
The trend is disappointing. In this con-
On the question of imposing penalty and
nection Mr. P. V. Rajmannar, the Chief
its payment in a specified period the words
Justice of Madras High Court very ably
of the act are too vague to be misunder-
remarked "there is an impression among
stood. The words court 'may fix' a period
for payment do not necessarily mean that magistrates and even judges that probation
the period shall be specified. In the case is something outside the regular adminis-
of default in payment the Act only says tration of justice. It is a mistake. Proba-
that the court may sentence the offender tion is as much integral part of the admini-
for the original offence. But the Act does stration of justice as the punishment of im-
not clearly indicate the alternative action prisonment. I believe, I will be right in
of the court in case the offender fails to saying that probation is a kind of national
make payment of compensation and the insurance. I hope the government and the
court too does not find it proper to sen- courts will consider it an important part of
tence him for the original punishment. the administration of justice."6

* Quoted by J. P. Gupta, "Role of Court in Probation," Social Defence, January 1962,


p. 17.
THE LEGAL FRAME-WORK OF PROBATION IN INDIA 269

Lastly a very basic question may be moved if the jurists of the country can be
raised against the 'authority' which inter- appraised, trained or oriented in the social
prets laws and exercises full powers in aspects of 'offence', correction and rehabili-
granting the release of the offenders. The tation. It will not be improper if the quali-
Probation Acts which cover the aforesaid fications for their appointment may include
measures of non-institutional correction a background in contemporary criminology
are of a socio-legal nature. The judges and and penology as one of the preferential
magistrates in India, no doubt, have a le- conditions.
gal training, experience, competence, and
responsibility for the application of the
It is also difficult to reconcile that some
provisions of the law, but it is doubted that
of the States (U.P. provides a good exam-
all of them fully understand the social as-
ple) in the country, still have separate Pro-
pect of these laws without even the brief
bation of Offenders Acts. This causes con-
orientation in social tenets of the earst-
while philosophy of correction. Many of fusion and gives rise to varying practices
them do not have conviction or faith in the on the same land. It is, therefore, desira-
essentials of the socially oriented non-puni- ble that these State Acts should be repeal-
tive type of correctional measures. With- ed and the Central Act should cover all
out any adequate background of social sci- the States in the country within its fold.
ences, more particularly, in recent crimi-
nology and penology, it is difficult for To conclude it can be said without any
them to appreciate the psycho-social impli- reservations that the legal framework of
cations of crime, delinquency and correc- probation in India suffers from some very
tion. Since their verdicts are based on serious contradictions, anomalies and
purely legal interpretations of the 'law', debatable issues. The whole legal frame-
the legal aspect howsoever fallacious, in- work needs to be revised and re-examined,
opportune or ineffective may be, gets an and new, logically consistent, useful, and
upper hand on the social side of correc- uniform rules and practices are to be evol-
tional measures. This difficulty can be re- ved.

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