Probaction of Offenders

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Introduction
The object of Criminal Law is more inclined towards the reformation
of the offender than to punish him. Instead of keeping an accused
with hardened criminals in a prison, the court can order personal
freedom on promise of good behaviour and can also order a period
of supervision over an offender. This is the concept behind
‘probation’. Black’s law dictionary defines ‘probation’ as ‘allowing a
person convicted of some minor offence (particularly juvenile
offenders) to go at large, under a suspension of sentence, during
good behaviour, and generally under the supervision or
guardianship of a ‘probation officer’.

It is believed that imprisonment decreases the capacity of an


offender to readjust to the normal society after the release and
association with professional delinquents often has undesired
effects on him and his life thereafter. Probation is a socialized penal
device which has come up as the result of modification, over a
period of time, of the doctrine of deterrence into the principle of
reformation; a development that paved the way to the introduction
of clinical approach and the principle of individualization in the
handling of offenders.

According to a report of the United Nations, Department of Social


Affairs, ‘Release of offenders on probation is a treatment device
prescribed by the court for the persons convicted of offences
against the law, during which the probationer lives in the
community and regulates his own life under conditions imposed by
the court or other constituted authority, and is subject to the
supervision by a probation officer’. The suspension of sentence
under probation serves the dual purpose of deterrence and
reformation. It provides necessary help and guidance to the
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probationer in his rehabilitation and at the same time the threat of


being subjected to unexhausted sentence acts as a sufficient
deterrent to keep him away from criminality.
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The Probation of Offenders Act, 1958, is based on the concept that


young offenders can be saved from becoming habitual offenders by
treating them amicably and providing them with a chance to reform
rather than dumping them into jails. The probation officer insists on
the problem or need of the offender and tries to solve his problem
and sees to it that the offender becomes a useful citizen of the
society.
Statutory Provisions Dealing With Probation
The earliest provision to have dealt with probation was section
S.562 of the Code of Criminal Procedure, 1898. After amendment in
1974 it stands as S.360 of The Code of Criminal Procedure, 1974.It
reads as follows:- ‘When any person not under twenty-one years of
age is convicted of an offence punishable with fine only or with
imprisonment for a term of seven years or less, or when any person
under twenty-one years of age or any woman is convicted of an
offence not punishable with death or imprisonment for life, and no
previous conviction is proved against the offender, if it appears to
the Court before which he is convicted, regard being had to the age,
character or antecedents of the offender, and to the circumstances
in which the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any punishment,
direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may
direct and in the meantime to keep the peace and be of good
behaviour’.
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The Probation of Offenders Act, 1958 and S.360 of the Code of


Criminal Procedure, 1973 exclude the application of the Code where
the Act is applied. The Code also gives way to state legislation
wherever they have been enacted.

The object of S.360 CrPC is to prevent young persons from being


committed to jail, where they may associate with hardened
criminals, who may lead them further along the path of crime, and
to help even men of more mature years who for the first time may
have committed crimes through ignorance, or inadvertence or the
bad influence of others and who, but for such lapses, might be
expected to be good citizens. It is not intended that this section
should be applied to experienced men of the world who deliberately
flout the law and commit offences.

The Hon’ble Supreme Court in Jugal Kishore Prasad v. State of


Bihar1, explained the rationale of the provision:
“The object of the provision is to prevent the conversion of youthful
offenders into obdurate criminals as a result of their association
with hardened criminals of mature age in case the youthful
offenders are sentenced to undergo imprisonment in jail.”

While dealing with this Act, the three most important provisions
that need to be highlighted are sections 3, 4 and 6. We will now see
each of these sections one by one.

Section 3
Power of court to release certain offenders after admonition.—
When any person is found guilty of having committed an offence
punishable under section 379 or section 380 or section 381 or

1
Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633
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section 404 or section 420 of the Indian Penal Code, (45 of 1860) or
any offence punishable with imprisonment for not more than two
years, or with fine, or with both, under the Indian Penal Code, or any
other law, and no previous conviction is proved against him and the
court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the
offence, and the character of the offender, it is expedient so to do,
then, notwithstanding anything contained in any other law for the
time being in force, the court may, instead of sentencing him to any
punishment or releasing him on probation of good conduct under
section 4 release him after due admonition.

Section 4
Power of court to release certain offenders on probation of good
conduct.—(1) When any person is found guilty of having committed
an offence not punishable with death or imprisonment for life and
the court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the nature
of the offence and the character of the offender, it is expedient to
release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the
court may, instead of sentencing him at once to any punishment
direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon
during such period, not exceeding three years, as the court may
direct, and in the meantime to keep the peace and be of good
behaviour.

Provided that the court shall not direct such release of an offender
unless it is satisfied that the offender or his surety, if any, has a fixed
place of abode or regular occupation in the place over which the
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court exercises jurisdiction or in which the offender is likely to live


during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall
take into consideration the report, if any, of the probation officer
concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it
is of opinion that in the interests of the offender and of the public it
is expedient so to do, in addition pass a supervision order directing
that the offender shall remain under the supervision of a probation
officer named in the order during such period, not being less than
one year, as may be specified therein, and may in such supervision
order, impose such conditions as it deems necessary for the due
supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall
require the offender, before he is released, to enter into a bond,
with or without sureties, to observe the conditions specified in such
order and such additional conditions with respect to residence,
abstention from intoxicants or any other matter as the court may,
having regard to the particular circumstances, consider fit to impose
for preventing a repetition of the same offence or a commission of
other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall
explain to the offender the terms and conditions of the order and
shall forthwith furnish one copy of the supervision order to each of
the offenders, the sureties, if any, and the probation officer
concerned.
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Section 6
Restrictions on imprisonment of offenders under twenty-one years
of age.—(1) When any person under twenty-one years of age is
found guilty of having committed an offence punishable with
imprisonment (but not with imprisonment for life), the court by
which the person is found guilty shall not sentence him to
imprisonment unless it is satisfied that, having regard to the
circumstances of the case including the nature of the offence and
the character of the offender, it would not be desirable to deal with
him under section 3 or section 4, and if the court passes any
sentence of imprisonment on the offender, it shall record its reasons
for doing so.

(2) For the purpose of satisfying itself whether it would not be


desirable to deal under section 3 or section 4 with an offender
referred to in sub-section (1) the court shall call for a report from
the probation officer and consider the report, if any, and any other
information available to it relating to the character and physical and
mental condition of the offender.
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Important Case Laws on Sections 3, 4 & 6 of the Probation of


Offenders Act
In Keshav Sitaram Sali v. State of Maharashtra 2, it was held by the
Supreme Court that in a case of petty theft the High Court should
have extended the benefit of either section 360 of the Code of
Criminal Procedure or sections 3 and 4 of the Probation of Offenders
Act to the appellant instead of imposing a sentence of fine on him.

In Basikesan v. State of Orissa3, a youth of 20 years was found guilty


of an offence punishable under section 380 of Indian Penal Code,
1860 and no previous conviction was proved against him. It was held
by the court that the offence committed by the accused was not out
of deliberate preparation or design but it was a fit case for
application of section 3 and he be released after due admonition.

In Daulat Ram v. State of Haryana4, it was held that the object of


section 6 is to ensure that juvenile offenders are not sent to jail for
offences which are not so serious as to warrant imprisonment for
life, with a view to prevent them from contamination due to contact
with hardened criminals of the jail. Therefore, the provision should
be liberally construed keeping in view the spirit embodied therein.

The question of age of the person is relevant not for the purpose of
determining his guilt but only for the purpose of punishment which
he should suffer for the offence of which he is found guilty.
Therefore, where a court found that offender was not under the age
of 21 years on the date when court found him guilty, sub-section (1)
of section 6 will not apply [5]

2
Keshav Sitaram Sali v. State of Maharashtra, AIR 1983 SC 291
3
Basikesan v.State of Orissa , AIR 1967 Ori 4
4
Daulat Ram v. State of Haryana, 1972 SC 2434
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Salient Features of The Probation of Offenders Act, 1958


The Probation of Offenders Act (Act No. 28 of 1958) contains
elaborate provisions relating to probation of offenders, which are
made applicable throughout the country. We will now observe the
salient features of the Act:-
·The Probation of Offenders Act, 1958 is intended to reform the
amateur offenders by providing rehabilitation in society and to
prevent the conversion of youthful offenders into obdurate
criminals under environmental influence by keeping them in jails
along with hardened criminals.

It aims to release first offenders, after due admonition or warning


with advice, who are alleged to have committed an offence
punishable under Sections 379, 380, 381, 404 or Section 420 of the
Indian Penal Code and also in case of any offence punishable with
imprisonment for not more than two years, or with fine, or with
both.

This Act empowers the Court to release certain offenders on


probation of good conduct if the offence alleged to have been
committed is not punishable with death or life imprisonment.
However, he/she should be kept under supervision.

The Act insists that the Court may order for payment by the
offender such compensation and a cost of the proceedings as it
thinks reasonable for loss or injury caused to the victim.

The Act provides special protection to persons under twenty-one


years of age by not sentencing them to imprisonment. However, this
provision is not available to a person found guilty of an offence
punishable with life imprisonment.
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The Act provides freedom to the Court to vary the conditions of


bond when an offender is released on probation of good conduct
and to extend the period of probation not to exceed three years
from the date of original order.

The Act empowers the Court to issue a warrant of arrest or


summons to the offender and his sureties requiring them to attend
the Court on the date and time specified in the summons if an
offender released on probation of good conduct fails to observe the
conditions of bond.

The Act empowers the Court to try and sentence the offender to
imprisonment under the provisions of this Act. Such order may also
be made by the High Court or any other Court when the case comes
before it on appeal or in revision.

The Act provides an important role to the probation officers to help


the Court and to supervise the probationers put under him and to
advise and assist them to get suitable employment.

The Act extends to the whole of India except the State of Jammu
and Kashmir. This Act comes into force in a State on such date as the
State Government may, by notification in the Official Gazette,
appoint. It also provides liberty to State Governments to bring the
Act into force on different dates in different parts of that State.
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Duties of A Probation Officer


Sec 14 of the Act deals with the duties of a probation officer. It
states:-
A probation officer shall, subject to such conditions and restrictions,
as may be prescribed –

(a) enquire, in accordance with any directions of a court, into the


circumstances or home surroundings of any person accused of an
offence with a view to assist the court in determining the most
suitable method of dealing with him and submit reports to the
court;

(b) supervise probationers and other persons placed under his


supervision and, where necessary, endeavour to find them suitable
employment;

(c) advise and assist offenders in the payment of compensation or


costs ordered by the
Court;

(d) advise and assist, in such cases and in such manner as may be
prescribed, persons who have been released under section 4;

(e) perform such other duties as may be prescribed.


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Offences In Which Probation Cannot Be Granted


We will now deal with those cases where probation cannot be
granted:-
1) In Ahmed v. State of Rajasthan5, it was held that the benefit of
this Act cannot be extended to a person who has indulged in an act
which has resulted into an explosive situation leading to possibilities
of communal tension.

2) In State of Maharashtra v. Natverlal6, the Supreme Court


declined to accord to the accused found guilty, the benefit of
Probation of Offenders Act because smuggling of gold not only
affects public revenue and public economy, but often escapes
detection.

3)Again in Smt. Devki v. State of Haryana7, it was held that the


benefit of Section 4 would not be extended to the abominable
culprit who was found guilty of abducting a teenage girl and forced
her to sexual submission with commercial motive.

4) In 2015, a Supreme Court bench consisting of Justices Pinaki


Chandra Ghose and Uday Umesh Lalit has ruled that the benefit of
Probation of Offenders Act cannot be extended to accused involved
in crimes against women8. The accused, Sri Chand was alleged to
have lured a 12 year old girl, who was grazing buffaloes in the
jungle, and taking her into a room wherein she was forcibly
undressed and the offense of rape was committed on her. The court
while giving the judgment relied on cases like Azhar Ali v. State of

5
Ahmed v. State of Rajasthan , AIR 1967 Raj 190
6
State of Maharashtra v. Natverlal, AIR 1980 SC 593
7
Smt. Devki v. State of Haryana,AIR 1979 SC 1948
8
State of Rajasthan v Sri Chand
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West Bengal9and State of Himachal Pradesh v. Dharam Pal10

It is a settled law that nobody can claim benefit under the Act as a
matter of right11. It was observed in State of Sikkim v. Dorjee
Sherpa and Ors12 that the Court should not take technical views in
certain cases and should take into consideration some other aspects
such as possibility of losing the job, for invoking the provisions of
Probation of Offenders Act even in serious offences. It has further
been contended that the Court should also take into consideration
that the convicts belonging to middle class families without any
criminal antecedent often become victim of circumstances because
of undesirable company and other evil influences available to such
young generation.

9
Azhar Ali v. State of West Bengal (2013) 10 SCC 31
10
State of Rajasthan v Sri Chand
11
Commandment 20 BK. ITB Police v. Sanjay Binjola, AIR 2001 SC 2058
12
State of Sikkim v. Dorjee Sherpa And Ors, 1998 CriLJ 2685
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The provisions of Probation of Offenders Act, 1958 normally


cannot be applied to:-
ACB cases13
 Section 304 of the Indian Penal Code,
NDPS Cases14
 Section 304-Aof the Indian Penal Code15
 Section 325 of the Indian Penal Code
 Sections 409, 467, 471 of the Indian Penal Code16
 Kidnap and abduction17
 Habitual offenders18.

13
State of Sikkim v. Dorjee Sherpa And Ors, 1998 CriLJ 2685
14
Vajja Srinivasu alias Srinu v. State of Andhra Pradesh, (2002) 9 SCC 620

15
Dalbir Singh v. State of Haryana, (AIR 2000 SC 1677)
16
Supra 12
17
Smt. Devki alias Kala v. State of Haryana, (AIR 1979 SC 1948)

18
Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117
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Conclusion:
To conclude, it can be said that the measure of alternative
punishment i.e., probation and the objective of theory of
reformative punishment would be achieved only if the judiciary and
the administration work together. It would be of great benefit for a
country like India, where the jails are often overcrowded, with
frequent human rights violations which would harden the human
inside a person. Probation is an affirmation of the human inside
every being and it must be given importance. The reform and
rehabilitation process have to be worked out in context of existing
social conditions to achieve the ultimate objective to reclaim back
those offenders to orderly society.
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Bibliography
1.Lectures On Criminal Procedure By Rv Kelkar
2. The Code On Criminal Procedure By Ratanlal Dhirajlal
3.http://jjscup.gov.in/docs/the-probation-of-offenders-act-
1958.pdf
4.https://www.livelaw.in/benefit-probation-can-given-
offences-discretionary-minimum-sentence-sc/
5. http://www.shareyouressays.com/knowledge/10-salient-
features-of-the-probation-of-offenders-act-1958/119361

Case laws
[1]Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633.
[2] Keshav Sitaram Sali v. State of Maharashtra, AIR 1983 SC
291.
[3]Basikesan v.State of Orissa , AIR 1967 Ori 4.
[4] Daulat Ram v. State of Haryana, 1972 SC 2434.
[5]Ramji Nissar v. State of Bihar; AIR 1963 SC 1088.
[6]Ahmed v. State of Rajasthan , AIR 1967 Raj 190
[7]State of Maharashtra v. Natverlal, AIR 1980 SC 593.
[8] Smt. Devki v. State of Haryana,AIR 1979 SC 1948.
[9]State of Rajasthan v Sri Chand
[10] Azhar Ali v. State of West Bengal (2013) 10 SCC 31
[11]State of Himachal Pradesh Vs. Dharam Pal (2004) 9 SCC 681
[12]Commandment 20 BK. ITB Police v. Sanjay Binjola, AIR 2001
SC 2058
[13]State of Sikkim v. Dorjee Sherpa And Ors, 1998 CriLJ 2685
[14]State of Gujarat v. VA Chauhan, (AIR 1983 SC 359)
[15] Vajja Srinivasu alias Srinu v. State of Andhra Pradesh,
(2002) 9 SCC 620
[16]Dalbir Singh v. State of Haryana, (AIR 2000 SC 1677)
[17]Supra 12
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[18]Smt. Devki alias Kala v. State of Haryana, (AIR 1979 SC


1948)
[19]Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117

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