Criminology

Penology and Sentencing

Probation Sentencing in Trial Courts
Component - I (A)- Personal Details

Role Name Affiliation

Principal Investigator Prof(Dr) G.S.Bajpai Registrar, National Law University,

Delhi

Paper Coordinator Mr. Neeraj Tiwari Assistant Professor, National Law

University, Delhi

Content Writer Mr. Utkarsh Yadav Assistant Professor, Galgotias

University, Uttar Pradesh

Content Reviewer Prof. BB Pande Former Professor, Faculty of Law,

Delhi University

Component - I (B) Description of Module

Subject Criminology

Paper Penology and Sentencing

Module Title Probation Sentencing in Trial Courts

Module Id Criminology/Penology & Sentencing/22

Learning Objectives To understand the sentencing discretion exercised by

the trial courts in reference to probation of offenders,
while upholding the statutory requisites.
Pre-requisites Basic understanding of Criminal Justice Administration,
Sentencing discretion of judges and reformatory theory of
punishment.

Key Words Probation, Admonition, Sentencing, Pre-Sentence report,

Probation Officer, Supervisory Probation, Alternatives to
punishment, Reformation and Rehabilitation of offenders.
Introduction

In this module of Probation Sentencing in Trial Courts, we would study the sentencing
discretion exercised by a criminal court while releasing a convict on probation of good
conduct. This paper will begin the discourse by first looking at the various definitions of the
term Probation. Thereafter, probation sentencing will be traced within the Indian Criminal
Justice system while analyzing the merits and demerits of this process. The paper would
further probe the legislative scheme underlying probation sentencing and will elaborately
discuss the import of Section 360 Cr.P.C and Probation of Offenders Act 1958. We would
also study the interplay of various statutory provisions dealing with probation and the judicial
pronouncements on these provisions. The paper will comprehensively lay out the procedure
adopted by a criminal court while exercising probation sentencing and will further probe the
difficulties faced in the exercise of this power. It would also be an endeavour of this work to
lay down certain suggestions which will improve the efficacy of probation sentencing.

Learning Outcome

(i) After studying this module, the students shall have an understanding about probation
sentencing in India and the sentencing discretion exercised by criminal courts.
(ii) Knowledge of various statutory and constitutional requirements while exercising
probation sentencing.
(iii) A fair conception about the role and challenges faced by the trial courts while
exercising probation sentencing discretion.

Conceptualizing Probation

Probation is a modern enlightened method to tackle the problem of criminality. It is based on

premise that the majority of crimes are committed by situational or near criminal, and they
may be reformed and saved from becoming recidivists or real criminals. Etimologically
probation means 'I prove my worth' and is derived from the latin word probatus meaning
'tested' or 'proved'. The legal concept of probation is conditional suspension of sentence and it
is a part of the decision making process of the judge at the time of sentencing. Thus probation
is a method of penal non-institutional treatment of offenders developed as an alternative to
imprisonment out of realization that short term imprisonment is harmful and ineffective
(Chakrabarti, 1995).

There is no precise legislative definition of the term probation. Neither the Criminal
Procedure Code 1973 nor the Probation of Offenders Act 1958 define what probation means.
Both these enactments use the words „release on probation of good conduct‟ without
actually defining the term. This necessitates for looking at a standard definition of probation
for better conceptualization of the topic.

Edward Fitzgerald gives the generally accepted definition of probation in USA as under:-
 A form of disposition under which a court suspends either the sentence or the
execution of the judgment of sentence of selected offenders, releasing them
conditionally on good behavior, under prescribed terms and rules and subject to the
control, guidance and assistance of the court as exercised through officers appointed
to supervise them. (Newman, 1977)

John Augustus (1785–1859), a Massachusetts shoemaker, is credited with being the “father of
probation.” Although much of his work pertained to pre-trial supervision, it nonetheless
contributed greatly to the origin of the American probation system. Augustus coined the term
probation, which he derived from the Latin word probare meaning to be tested or proven
(Miller, 2012)

Don M. Gottfredson observed probation as "a procedure by which a convicted person is

released by the Court without imprisonment subject to conditions imposed by the court. Thus,
probation is part of the decision-making process of judges at the time of sentencing" (Kadish,
1983) The legal concept of probation is "conditional suspension of sentence" (Burton, 2007)

The Handbook for Courts on the Treatment of Offenders published by the Home Office
London narrated the object of probation as follows:

The object of probation, as of all methods of treatment, is the ultimate reestablishment

of the offender in the community....1(Shah, 1973)

The United Nations Department of Social Affairs 1951 (Probation and Aliied Measures) has
defined probation as a process of treatment prescribed by the court for persons convicted of
offences against the law during which the individual or the probationer lives in the
community and regulates his own life on conditions imposed by the court or other constituted
authority and is subject to the supervision of a probation officer (Raina, 1996)

In America, the American Bar Association defines the use of the term probation as a sentence
not involving confinement which imposes conditions and retains authority in the sentencing
court to modify the conditions of sentence or to re-sentence the offender if he violates the
conditions (Thalheimer, 1978).

In England, a clear definition of probation has been provided by the Morrison committee as
follows:
‘Probation is the submission of an offender while at liberty for a specified period to
the supervision of a social case worker who is an officer of the court (Mclean and
Wood 157, 1969)
A perusal of these definitions clearly show that probation is the suspension of imposition of
punishment on condition of good behaviour which the offender commits to observe under the
supervision of a probation officer, while staying in the society. Therefore, probation is a
method of dealing with offenders and is a viable alternative to imprisonment. It is an
embodiment of the progressive penal policy of individualization of punishment. The
emphasis is on the offender rather than the offence. It is a community based treatment which
helps in the rehabilitation of the offender by allowing him to pursue his social and financial
obligations within the society. It saves him from the deleterious effects of prison life, where
he may associate with hardened criminals and become a recidivist himself.

Probation Sentencing in Trial Courts

Every Criminal trial concludes with a judgment which may either acquit or convict the
accused of the charges framed against him. When the accused is found guilty and convicted,
the court shall proceed to pass sentence on him.1 Crime must meet its just deserts (Ashworth
104, 2010) and it is the duty of the court to punish the accused in accordance with the law.
However, in some cases, where the court considers it desirable, it may instead of sentencing
the accused to any punishment release him on probation of good conduct.2

Conviction
ss 235(2), 248(2),255(2) CrPC

Sentenced to Imprisonment
ss 235, 248,255 CrPC

Released on Probation
S 360 CrPC and Probation of Offenders Act

Probation sentencing is aimed at the individual and not at his crime (Bates 484-493, 1934).
The object is to reform and reintegrate offenders without submitting them to the stigma of
prison life. It is applicable as against those offenders who are redeemable such as young
offenders and first time offenders where criminal tendencies are not deep rooted.

1
ss 235(2), 248(2),255(2)
2
s 360, read with Probation of Offenders Act, 1958
In India provisions for releasing convicted person on probation have been given in Probation
of Offenders Act 1958 and Criminal Procedure Code – SS.360 and 361. In Probation
sentencing, when any convicted person is found fit to be released on probation the court may
not pronounce any sentence against him but he may be released on probation of good
conduct. In such a situation if the person violates terms and conditions of probation or he is
not reformed, the court then considers about the sentence to be imposed.

Merits of Probation Sentencing

(a) From the standpoint of the person on Probation

Chance of
reformation

Merit from
Offender’s
Standpoint

Continuation
of life habits
Averts the
that are
stigma of jail
approved by
life
society

(i) It affords him another chance of reformation - The sole intention behind
probation law is to give a person a chance of reformation which he may
not get if sent to Jail.
(ii) It makes possible continuation of those life habits that meet the approval of
society. Such habits include his work, meeting family obligations and any
other pursuit that has meaning to him as a person in the community.
(iii)It averts the stigma of jail life. Stigmatization and branding of a person is a
major cause for secondary deviance and preparation of a recidivist.
 (b) From the standpoint of Community:

Prevents
overcrowding
in Jail

Merit from
Community
Standpoint

Community
Less expensive has interest in
well adjusted
individuals

(i) Overcrowding in Jail creates dehumanizing conditions and criminogenic

surrounding. Therefore, probation protects an individual from
contaminating influence of recidivist prison inmates.
(ii) It can be assumed that the community has a definite interest in well adjusted
individuals who are carrying on a constructive life plan.
(iii)Financially probation is much less expensive than keeping convicted person in
Jail or other reformatories.

Legislative Scheme of Probation Sentencing

S.360 Code of Criminal Procedure, 1973

Section 562 of the Code of Criminal Procedure, 1898, was the earliest provision to have dealt
with probation. After the Code of Criminal Procedure was amendment in 1973 it stands as
S.360 which reads as follows:

360. Order to release on probation of good conduct or after admonition.

 (1) 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:

Provided that where any first offender is convicted by a Magistrate of the second class not specially
empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this
section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a
Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such
Magistrate, who shall dispose of the case in the manner provided by sub- section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1),
such Magistrate may thereupon pass such sentence or make such order as he might have passed or
made if the case had originally been heard by him, and, if he thinks further inquiry or additional
evidence on any point to be necessary, he may make such inquiry or take such evidence himself or
direct such inquiry or evidence to be made or taken.

Section 360(1) thereby gives discretionary power to a court to release an offender on

probation of good conduct provided the offender is (i) a woman, or (ii) a person below 21
years of age, or (iii) a male person of 21 years of age or above who is not guilty of an offence
punishable with more than seven years imprisonment. The benefit of section 360 is not
available to offenders who have been previously convicted or those found guilty of any
offence punishable with death or imprisonment for life.

Therefore, first time offenders who fulfil the above conditions, instead of being sentenced to
any punishment may be released on probation of good conduct by furnishing bond with or
without sureties. The offender may be required to furnish a bond to appear and receive
sentence whenever called upon during such period not exceeding three years as the court may
direct. The offender shall be directed by the court to keep the peace and maintain good
behaviour if he is released on probation under this section. No offender can claim, as of right,
on fulfilling the conditions laid down in this section, to be released on probation of good
conduct. It is a discretionary power given to a court, and the discretion has to be exercised
keeping in view not only that it is the first conviction of the accused but the circumstances in
which the crime was committed, the age, character and antecedents of the offender.

It is abundantly clear that the section tries to reform the criminals by treating them leniently
only in those cases where there is no danger or threat to the protection of the society. Even
the Supreme Court has reiterated in many cases that the court has to use the discretion given
in this respect judicially and having regard to the age, character or antecedents of the offender
and to the circumstances in which the offence was committed (Dilbagh Singh V State Of
Punjab 103).

This section is therefore intended to be used 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 (B.Titus,Re 720, 1941).

In Surendra Kumar v State of Rajasthan3it was observed by the Supreme Court that where
an offence is punishable with fine or with imprisonment with a term of seven years or less
and the accused is below the age of 21 years at the time of commission of offence, he is
entitled to avail the benefit of section 360 CrPC.

In Hansa v State of Punjab4the appellant was convicted for one year under section 325 IPC.
The fact shows that the occurrence took place between the parties on the quarrel of the
children. The Apex court directed to release the appellant on probation having regard to the
circumstances of the case and the nature of the offence and also the character of the offender.

In Jagat Pal Singh v State of Haryana5the appellants were convicted under Section 323,
452, 506 r/w section 34 IPC and were sentenced to three months simple imprisonment. The
Supreme Court held that the courts should have taken note of provision of Probation of
Offenders Act or Section 360 CrPC. The Supreme Court directed that instead of sentencing
them to imprisonment, the accused persons be released on probation after exhibiting a bond
before the Magistrate for keeping good behaviour and peace for a period of six months.

The applicability of Section 360 CrPC has been further reinforced by section 361 CrPC
which considerably narrows down the discretion to sentence a convicted person. Section 361
reads as follows:
361. Special reasons to be recorded in certain cases.
Where in any case the Court could have dealt with,-
(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act,
1958 (20 of 1958 ), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being
in force for the treatment, training or rehabilitation of youthful offenders,
but has not done so, it shall record in its judgment the special reasons for not having done so.

This provision clearly mandates that the court shall normally deal with the offenders under
section 360 or under the Probation of Offenders Act, however in case the court chooses to do
3
[1979] AIR 1048 (SC)
4
[1977] AIR 1991 (SC)
5
[2000] AIR 3622 (SC)
otherwise and to pass any sentence on the offender, that could be possible only for special
reasons to be recorded in the judgment.

The special reasons contemplated by sec 361 must be such as to compel the court to hold that
it is impossible to reform and rehabilitate the offender after examining the matter with due
regard to the age, character and antecedents of the offender and the circumstances in which
the offence was committed. This provision is a clear indication by the legislature that
reformation and rehabilitation of offenders and not mere deterrence is the foremost objective
of the criminal justice administration. The personality of the offender as revealed by his age,
character, antecedents and other circumstances and the tractability of the offender to reform
must necessarily play the most prominent role in determining the sentence to be awarded.
Special reasons must have some relation to these factors (Bishnu Deo Shaw V State Of WB
714).

The Probation of Offenders Act, 1958

In 1958 the Parliament enacted the Probation of Offenders Act, which provided a statutory
scheme for probation sentencing in India. It also provided for appointment of probation
officers who would be responsible to give a pre-sentence report to the magistrate and also
supervise the accused person during the period of his probation. The Act is a milestone in the
progress of the modern liberal trend of reform in the field of penology. It is the result of the
recognition of the doctrine that the object of criminal law is more to reform the individual
offender than to punish him. The Probation of offenders Act saves a convicted person from
the stigma of jailed life, but nobody can claim the benefit under the Act as a matter of right
and the court has to pass appropriate orders in the fact and circumstances of each case having
regard to the nature of the offence, its general effect on the society and the character of the
offender etc (Dalbir Singh V State Of Haryana 1677).

In Jugal Kishore Prasad v State of Bihar6 the Supreme Court observed that the object of the
Act 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.

The aforesaid objective has been reinstated by the Supreme Court in Arvind Mohan Sinha v
Mulya Kumar Biswas7, wherein it has been observed that the Probation of Offenders Act is a
reformative measure and its object is to reclaim amateur offenders who can be usefully
rehabilitated in society. The Act recognises the importance of environmental influence in the
commission of crimes and prescribes a remedy whereby the offenders can be reformed and
rehabilitated in society.

6
[1973] CriLJ 23 (SC)
7
[1974] SCC Cri 391 (SC)
The Act distinguishes offenders below 21 years of age and those above that age, and
offenders who are guilty of having committed an offence punishable with death or
imprisonment for life and those who are guilty of a lesser offence. While in the case of
offenders who are above the age of 21 years absolute discretion is given to the court to
release them after admonition or on probation of good conduct, subject to the conditions laid
down in the appropriate provisions of the Act, in the case of offenders below the age of 21
years an injunction is issued to the court not to sentence them 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 offenders, it is not desirable to deal with them under Sections
3 and 4 of the Act (Rattan Lal V. State Of Punjab 676).

Power of court to release after admonition

Section 3 of the Act deals with powers of the court to deal with offenders who have
committed certain category of offences mentioned under this section. Section 3 applies when
any person is found guilty of having committed an offence punishable under section 379,
380, 404,420 of the Indian Penal Code. It also applies in case of any offence punishable with
imprisonment for not more than 2 years or with fine or both under the Indian Penal Code or
any other law. The court has the power to release the offender after due admonition, if
following conditions are fulfilled:
(i) No previous conviction is proved against the person who has been charged of having
committed an offence;
(ii) The court by which the person is found guilty is of the opinion that it is expedient to
do so;
(iii) The court may form its opinion keeping in view the nature of the offence and
character of the offender.
If the above conditions are fulfilled the court may instead of sentencing him to any
punishment or releasing him on probation of good conduct under section 4 of the Act release
the offender after due admonition.

In Superintendent Central Excise v Bahubali8the respondent was tried and convicted for
carrying gold without permit as required by Rule 126-H (2)(ii) of the Defence of India Rules.
It was held that recourse to the provisions of the Probation of Offenders Act, 1958 cannot be
had by the court where a person is found guilty of any offence specified in Rule 126-P (2)(ii)
of the Defence of India Rules relating to gold control which prescribes a minimum sentence
in view of the emphatic provisions of Section 43 of the Defence of India Act. If an offence is
committed under the Defence of India Rules the benefit of section 3,4 and 6 of the Probation
of Offenders Act cannot be invoked by the accused and he has to suffer the imprisonment

8
[1969] AIR 1271 (SC)
awarded to him by the trial court in view of the unambiguous language of Section 1(3) of the
Defence of India Act.

Power of court to release certain offenders on probation of good conduct

Section 4 of the Act deals with the power of the court to release certain offenders on
probation of good conduct. An offender may be released on probation if following conditions
are fulfilled:
(i) Any person is found guilty of having committed an offence;
(ii) The offence so committed must not be punishable with death or imprisonment for life;
(iii)The court by which the person is found guilty is of the opinion that it is expedient to
release him on probation of good conduct;
(iv) The court may form such opinion having regard to (i) the circumstances of the case,
(ii) the nature of the offence and (iii) the character of the offender.
If the above conditions are fulfilled, the court may, instead of sentencing him at once to any
punishment, direct that the offender should be released on entering into a bond to appear and
receive sentence when called upon during period of probation. The bond so directed may be
taken with or without securities.
The period of probation will be such as the court may direct but it will not exceed three years.
The probation order shall provide that the offender shall keep peace and be of good behaviour
during the probation period.
Proviso appended to section 4(1) further states that an offender shall not be released on
probation of good conduct unless the court 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 court exercises
jurisdiction or in which the offender is likely to live during the period for which he enters into
the bond.

In Keshav Sita Ram v. State of Maharashtra9, the appellant accused an employee of railway
was alleged to have abetted commission of an offence of theft of coal from a railway wagon,
which was committed by Bhikam Murad (accused no.1). The trial court acquitted the
appellant of the charges, but on appeal the High Court convicted the appellant of an offence
under section 379 r/w section 109 IPC. The subject matter of the theft was Rs.8 only. After
the decision of the High Court, the appellant was taken back in service by Railways and was
in service when the appeal was heard by the Supreme Court. Having regard to the special
circumstance of this case and the character and antecedents of the appellant, the Supreme
Court observed that benefit of probation of Offenders act, 1958 could have been given by the
High Court instead of imposing a sentence of fine on him. Therefore, the sentence was set
aside and the case was remitted to trial court to pass an order either under section 360 CrPC
or Section 3 and 4 of the Probation of Offenders Act.

9
[1983] AIR 291 (SC)
The Act actualizes implementation of probation sentencing by empowering the courts to call
for a report from the probation officer and consider the report or any other information
relating to the character and physical and mental condition of the offender.10The report may
also identify the causal attributes behind the crime and the impact of imprisonment on the
psyche of the convict. This would then guide the court in allowing or denying the offender,
the benefits of Sec. 3 or Sec. 4 of the Act. The report of a probation officer shall be treated as
confidential, however the court may, if it so thinks fit, communicate the substance thereof to
the offender and may give him an opportunity of producing such evidence as may be relevant
to the matter stated in the report.11

Section 4(3) of the Act further lays down that a probation order may be with or without
supervision. It gives complete discretion to the judge to either order supervisory or non-
supervisory probation regard being to the interests of the offender and of the public. Legally
probation order may be with or without supervision but practically whenever a person is
released on probation he comes under the supervision of probation officer. In case of
probation order with supervision, probation period shall not be less than one year.12

The beneficial provision contained under section 3 and section 4 of Act is further reinforced
by section 6 which inter alia provides that any offender under 21 years of age shall not be
imprisoned unless the court 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 4 and if the court passes any sentence of imprisonment, it
shall record its reasons for doing so.

In Musa Khan v. State of Maharashtra13 it was held that the Probation of Offenders Act,
1958 is a social legislation which is meant to reform young offenders so as to prevent them
from becoming hardened criminals by providing an educative and reformative treatment to
them by the Government. Unfortunately though the provision of Section 6 thereof are
mandatory, the courts do not appear to make wise use of these provisions which is necessary
to protect the younger generation from becoming professional criminals and therefore a
menace to the society.

In Mohd. Aziz v State of Maharashtra14 it was observed by the Supreme Court that Section 6
lays down an injunction as distinct from a discretion under section 3 or section 4, not to
impose a sentence of imprisonment on a person who is under twenty-one years of age and is
found guilty of having committed an offence punishable with imprisonment other than that of
life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal

10
s 4(2) and 6(2)
11
s7
12
s4(3)
13
[1976] CriLJ 1987 (SC)
14
[1976] CriLJ 583 (SC)
with him under section 3 or section 4. This inhibition on the power of the court to impose a
sentence of imprisonment applies not only at the stage of trial court but also at the stage of
High Court or any other court when the case comes before it in appeal or revision as per
section 11(1) of the Act.

Section 5 of the Act deals with the power of the court to require an offender released under
section 3 or section 4 of the Act to pay compensation. Any order for payment of
compensation shall be such as the court thinks reasonable for loss or injury caused to any
person by the commission of the offence. The court is also empowered to order payment of
such costs of the proceedings as it thinks reasonable. The amount of compensation ordered to
be paid under this section may be recovered as a fine in accordance with the provisions of
section 386 and 387 of the Criminal Procedure Code.15

Section 8 gives power to the court which passes an order under section 4 in respect of an
offender to vary the conditions of any bond on the application of a probation officer if it is of
the opinion that it is expedient or necessary to do so in the interest of the offender and the
public. The court may vary the bond by extending or diminishing the duration of bond but the
period so extended shall not exceed three years from the date of original order. It may even
alter the conditions or insert additional conditions in the bond.

Section 9 deals with the power of the court in case the offender fails to observe the conditions
of bond. The powers under this section can be exercised by the court which passes an order
under section 4 of the Act. If the court on the basis of the report of a probation officer or
otherwise has reason to believe that the offender has failed to observe any of the conditions of
the bond entered by him, it may issue warrant of arrest or if it thinks fit, issue summons to
him or his sureties. When the offender consequently is brought or appears before the court,
the court may either remand him to custody or release him on bail. The court thereafter after
hearing the case, is satisfied that the offender has failed to observe any of the conditions of
the bond, it may take following action against him-
a. The court may sentence him for the original offence; or
b. where the failure on the part of the offender is for the first time, then, the court may
impose upon him a penalty not exceeding fifty rupees. The court may do so without
prejudice to the continuation in force of the bond already entered into by the offender.

Section 11 of the Act provides for the courts which are competent to make an order under the
Act. These are as follows:
(a) A probation order may be passed by a court which is empowered to both try
and impose a sentence on the offender. If the court cannot impose sentence
then it cannot pass probation orders under the Act;

15
s5(2)
 (b) High court may as a court of original, appellate or revisional jurisdiction pass
a probation order;
(c) Appellate and revisional court when the case comes before it, may release
convicted person on probation of good conduct.
When a person was required to be released compulsorily on probation and trial
court did not release u/ss. 4 and 6 of the Act and sentence was imposed which
is not appealable, even in that case court to which appeal ordinarily lies either
on its own motion or on application by the convicted person or probation
officer, may hear the case and pass appropriate order as it thinks fit.16

An order releasing a person on probation is appealable. Appellate or revisional court may set
aside the order of probation but such courts cannot inflict greater punishment that might be
inflicted by the trial court17

Section 12 of the Act lays down that where a person is found guilty of an offence and dealt
with under the provision of section 3 or section 4 of this Act, he shall not suffer any
disqualification attaching to a conviction of an offence under any law.

Applicability of Section 360 CrPC and Probation of Offenders Act, 1958

There is considerable overlapping between Section 360 CrPC and Section 3 and 4 of the
Probation of Offenders Act and both the provisions provide for similar relief. In such a
situation there is bound to be confusion as which provision will prevail over the other.
Though both the enactments are beneficial legislations but Probation of Offenders Act is a
comprehensive and enlightened statute prescribing necessary measures for reformation and
rehabilitation. Therefore Act of 1958 would prevail over Section 360 CrPC. In Chhanni v
State of U.P.18 the controversy has been settled by the Supreme Court by clearly upholding
the prevailing nature of the Act. The court while differentiating between Section 360 CrPC
and Section 3 and 4 Probation of Offenders Act observed:

Where the provisions of the Probation Act are applicable the employment of Section
360 of the Code is not to be made. In cases of such application, it would be an
illegality resulting in highly undesirable consequences, which the legislature, who
gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in
its wisdom has obliged the Court under Section 361of the Code to apply one of the
other beneficial provisions; be it Section 360 of the Code or the provisions of
the Probation Act. It is only by providing special reasons that their applicability can
be withheld by the Court. The comparative elevation of the provisions of

16
s11(3)
17
s11(4)
18
[2006] AIR 3051 (SC). See also Ramesh Das v. Raghu Nath & Others [2008] AIR 1298 (SC).
 the Probation Act are further noticed in sub-section (10) of Section 360 of the Code
which makes it clear that nothing in the said Section shall affect the provisions of
the Probation Act. Those provisions have a paramountcy of their own in the
respective areas where they are applicable.

Section 360 of the Code relates only to persons not under 21 years of age convicted
for an offence punishable with fine only or with imprisonment for a term of seven
years or less, to any person under 21 years of age or any woman convicted of an
offence not punishable with sentence of death or imprisonment for life. The scope
of Section 4 of the Probation Act is much wider. It applies to any person found guilty
of having committed an offence not punishable with death or imprisonment for
life. Section 360 of the Code does not provide for any role for Probation Officers in
assisting the Courts in relation to supervision and other matters while Probation Act
does make such a provision. While Section 12 of the Probation Act states that the
person found guilty of an offence and dealt with under Section 3 or 4 of the Probation
Act shall not suffer disqualification, if any, attached to conviction of an offence under
any law, the Code does not contain parallel provision. Two statutes with such
significant differences could not be intended to co-exist at the same time in the same
area. Such co-existence would lead to anomalous results. The intention to retain the
provisions of Section 360 of the Code and the provisions of the Probation Act as
applicable at the same time in a given area cannot be gathered from the provisions
of Section 360 or any other provision of the Code. Therefore, by virtue of Section
8(1)of the General Clauses Act, where the provisions of the Act have been brought
into force, the provisions of Section 360 of the Code are wholly inapplicable.

Pursuant to these observations, there is no confusion in this regard and therefore Probation of
Offenders Act, 1958 will prevail over Section 360 CrPC.

Issues and Challenges in Probation Sentencing

The Probation of Offenders Act, 1958 is no doubt a progressive legislation with the object to
reclaim young offenders, who can be successfully rehabilitated within the society. However,
there are various issues in the functioning of this law that has stifled its effectiveness. A few
of such issues are identified as under:

(a) Probation without Supervision – Supervision is an integral part of probation. In

USA & UK, from where the concept of Probation was borrowed and adopted in India,
there is no probation without supervision. However, in India no provision was made
for Supervision either in the Criminal Procedure Code of 1898 or even in the Code of
Criminal Procedure 1973. The Probation of Offenders Act also doesn‟t make
Supervision mandatory while releasing a convict on probation of good conduct.19 The

19
Section 4(1) of the Act
 court while releasing the offender on probation under section 4(1) of the Act, may not
invoke the provisions of sub section (3) of the said section which provides for placing
the offender under the supervision of a probation officer.

Probation without supervision is unjustified as the very definition of it is conditional

suspension of sentence. The violation of conditions of probation order leads to its
revocation and imposition of the suspended sentence, therefore there must be
someone to ensure the compliance of conditions by the probationers. Supervision
therefore must be made mandatory while releasing a convict on probation of good
conduct and the existing provision of probation without sentencing should be deleted
from the Act.

(b) Probation as an integral part of Sentencing Policy – Probation must form an

integral part of the Sentencing policy in India. The Magistracy which handles bulk of
the trial cases is bereft of any academic or professional knowledge about the working
of the probation of Offenders Act. The said legislation is not a part of the syllabi of
law programs taught in majority of the Universities in India. In such a situation law
graduates are deprived of theoretical understanding of this neo-correctionist penal
policy. The result of this is that Magistrates lack a correct understanding of the
beneficial provisions of this Act and therefore fail to apply the law even in
meritorious and deserving cases. Probation should be made an integral part of the
sentencing policy and the Magistracy must be regularly apprised about the benevolent
provisions and objectives of the Act.

(c) Denial of Probation to first time and reclaimable offenders guilty of offence
punishable with life imprisonment – The absolute ban on probation to first time
offenders guilty of offence punishable with life imprisonment is unjustifiable and
contradictory vis-a-vis the reformatory approach of the Probation of Offenders Act. It
is even more unjustified in case of offenders involved by way of constructive liability
who are not given even a single chance to reform. The Act provides for
individualisation of sentencing and therefore a chance to reform must be given to such
offenders who show remorse for their isolated lapse. The Act is a benevolent
legislation and therefore reclaimable offenders must be brought within the folds of the
society. The imposition of absolute ban on the grant of probation to offenders guilty
of offences punishable with life imprisonment should be removed and Section 4 of the
Act should be amended accordingly.

(d) Fixed place of residence as a precondition for grant of Probation – Fixed place of
residence or regular occupation is a precondition for grant of probation. However, one
must not ignore the appalling poverty and level of unemployment in the country. If
the probationer is not allowed to move freely in search of livelihood and social
security the whole effort to reclaim his will become meaningless. Therefore, in all
 fairness this provision should be deleted from the Act and wider power should be
given to the court to allow such persons to move freely in search of livelihood.

(e) Dilution of Pre-sentence Investigation report – Section 4(2) of the Act does not
necessitate that there should be pre-sentence investigation report in all cases. It only
mandates that if there is a pre-sentence report then the magistrate shall take it into
consideration. The Act by making it optional for the courts to call for pre-sentence
investigation report has withheld the true benefit of the Act to the eligible offenders.
Presence of such a report would give deeper insights into every aspect of the
offender‟s life and the courts would be in a better position the correctionist penal
policy envisaged under the Act.

Summary

Probation Sentencing is a significant measure in the reformatory sentencing policy scheme.

The underlying objective of it being to reclaim offenders who can be brought within the
traditional folds of the society. The Probation of Offenders Act, 1958 and Section 360 Code
of Criminal procedure, 1973 have indeed provided a legislative framework for the
implementation of this scheme. However, the Act hasn‟t changed with the time and has failed
to adopt new techniques in non-custodial sentencing.20 Further, there has to be a greater
emphasis and awareness about the beneficial provisions of the Act and the Magistracy must
be trained to apply this policy while exercising their sentencing discretion. It is also important
that institutions associated with probation should be strengthened so that they can work hand
in hand with the trial courts in its implementation.

20
Malcolm M. Feeley and Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections
and Its Implications, 30 Criminology 449 (1992), Available at: http://scholarship.law.berkeley.edu/facpubs/718