Probation of Offenders Act, 1958
Questions covered:
- Discuss the aims and objectives of the Probation of Offenders Act, 1958.
- State the powers of the court regarding the release of certain offenders on probation for good behavior under this act.
- Explain the offenses in which a court can and cannot grant the benefit of probation.
- Explain the procedure followed against the offender who breaches the probation conditions.
- Section 360 of CrPC and Section 4 of the Probation of Offenders Act both empower the court to release a convicted offender on probation for good behavior. Which section has an overriding effect?
Mahatma Gandhi once said, “Hate the crime, not the criminal”. This means that we need to eliminate crime and eliminating criminals is not the way to do it. While it is true that punishment gives a sense of satisfaction to the victims and to society in general, it has been observed that in most cases punishment, especially imprisonment, does not actually reform the criminal. In most cases, once a person comes out of prison, he gets back to his old ways of being in conflict with the law. This is true even more with young criminals, whose minds are not fully mature. They get influenced in the wrong way because of their interaction with hardened criminals in jails.
One way to counter this problem is to provide opportunities and guidance to young and first-time offenders instead of committing them to jails. The idea behind such treatment is that, normally, human beings do not resort to crime unless they are forced due to exceptional circumstances. If we want to reduce crime, we should make sure that chance criminals are given an opportunity to get reformed instead of turning into hardened criminals. This is the aim behind the Probation of Offenders Act, 1958. It allows the court to take into account the nature of the crime, the age of the offender, and the circumstances of the crime, and instead of committing the offender to jail, release him under the supervision and guidance of a probation officer. This ensures that the offender is integrated back into society. The act is based on the reformatory approach, which is adopted in many countries of the world. For example, in the USA, almost 60% of the offenders are released on probation.
The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus – S. 562 and is 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 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 make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.
It must, however, be kept in mind that reformation does not always work. Some crimes are so abhorrent and some criminals are so unrepentant that it is best to punish them so that the price of committing the crime keeps them from committing it again. For some of them, there is no hope for reform, and it is best to protect society from them by locking them away for life.
Main Features of the Act / Powers of the court regarding release of certain offenders
Depending on the circumstances of the case, a court may release the person in two ways – release after admonishing the person, which is provided in Section 3, and release on probation of good conduct, which is provided in Section 4. Both are explained below.
Release After Admonishing
Admonishing means to warn or reprimand. In this mode of release, the court scolds the person, and in a way, tries to appeal to the good conscious of the person and release him. Section 3 says thus:
When any person is found guilty of having committed an offense punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offense punishable with imprisonment for not more than two years, or with a 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.
The conditions required to be released under this section are –
1. The offence must be punishable with imprisonment for less than 2 yrs or with only a fine or with both. Or if the offence is punishable under any of the Sections 379, 380, 381, 404, and 420.
2. The offender does not have any prior convictions.
If the above conditions are satisfied, then the court must take into consideration the nature of the crime and the antecedents and character of the offender and if it thinks it suitable, it can release the offender after warning.
Release on Probation
As per Section 4, if any person is found guilty of having committed an offense 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 offense 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 behavior. The section further requires that the offender or his surety has a fixed place of residence or regular occupation in a place where the court exercises jurisdiction.
Also, before making any such order, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. However, it is not necessary that the court has to act on probation officers report. It can also gather information from other sources and on its own analysis.
The court may also require the offender to remain under the supervision of a probation officer during certain period, if it thinks that it is in the interests of the offender and of the public. It can also impose appropriate conditions which might be required for such supervision. In case the court does specify such conditional release, it must require the offender has to enter into a bond, with or without sureties, enumerating the conditions. The conditions may relate to place of residence, abstention from intoxicants, or any other matter as the court thinks appropriate to ensure that the crime is not repeated.
As per Section 5, the Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay-
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offense; and
(b) such costs of the proceedings as the court thinks reasonable.
Offenses in which benefit of probation can and cannot be granted
Section 4, as described above, gives a general direction to the court for deciding when and when not to give the benefit of probation. The words, “if the court is of the opinion” basically give discretionary power to the court in this respect.
Section 6, however, tries to impress upon the court to lean in favor of giving benefits in cases of young and immature adults. When any person under twenty-one years of age is found guilty of having committed an offense 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 offense 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.
For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4, 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.
Thus, even though no mathematical rule is given, the general intention of the legislature is to give the benefit of probation as much as possible. In Jugal Kishore Prasad vs State of Bihar 1972, the Supreme Court observed that the object of the Probation of Offenders Act, “is in accordance with the present trend in the field of penology, according to which efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu.”
In absence of a precise formula to determine when and when not the benefit of probation can be given, we have to look at SC court judgments to understand what kind of offenses are eligible for this benefit. SC has accepted the applicability of probation for many kinds of offenses. For example, in Isherdas v. State of Punjab, the Supreme Court held that the Probation of Offenders Act was applicable to the offenses under the Prevention of Food Adulteration Act, of 1954.
In the case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the appellant was below 21 years of age. The appellant was at one time a well-known child film actor and won several awards for acting in films. Subsequently, he fell into bad company and took to evil ways. SC held that even if the point relating to Section 6 is not raised before the High Court, the court was bound to take notice of the provisions of the section and give its benefit to the applicant.
It further held that Section 6 lays down an injunction not to impose a sentence of imprisonment on a reason who is under 21 years of age and if found guilty of having committed an offense punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal 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 but also at the stage of the High Court or any other court when the case comes before it in appeal or revision.
However, in Uttam Singh vs Delhi Administration, 1971, the appellant was 36 yrs of age and was caught with 3 sets of playing cards and obscene photographs. SC refused to allow him the benefit of release on probation having regard to his age and nature of the crime.
There have been cases where the court has let off even rapists on probation and there have been cases where even minor offenses have not been given the benefit of probation. It can be said that this benefit is given on a case-to-case basis after looking at the peculiarities of the case. It is not possible to categorize the offenses in this respect.
Procedure when the offender breaches the conditions of Probation
As per Section 9, if the court which passes an order under section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offense has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.
The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.
If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith
(a) sentence him for the original offense; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offense.
It is important to note that the sentencing in respect of which the probation is given is merely suspended when the offender is released on probation under Section 4. Thus, if any condition of the probation is violated, the court may sentence the offender for the original offense without conducting a fresh trial.
Probation Officer and his duties
As per Section 13, a probation officer under this Act shall be – (a) a person appointed to be a probation officer by the State Government or recognized as such by the State. Government; or (b) a person provided for this purpose by a society recognized on this behalf by the State Government; or (c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case.
Section 14 – Duties of probation officers
A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-
(a) inquire, 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, endeavor 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; and
(e) perform such other duties as may be prescribed.
Section 360 of CrPC and Section 4 of Probation of Offenders Act
As per Section 19, in the states where Probation of Offenders Act is enacted, Section 360 of CrPC shall cease to apply. Thus, it is clear that Section 4 of Probation of Offenders Act has overriding effect.
Section 360 of CrPC – 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 behavior.
Keywords: Probation of Offenders, Probation of Offenders Act, 1958, Probation of Offenders, Definition, Juvenile Delinquency in India.
Click here to read the Bare Act of Code of Criminal Procedure, 1973
