In India, Criminal Law leans towards reforming offenders rather than solely punishing them. While punishment may satisfy societal and victim sentiments, it often falls short in promoting lasting rehabilitation.
Imprisonment, a common punitive measure, tends to perpetuate a cycle of recidivism, especially among young offenders. The immature minds of youth can be adversely influenced in prison environments, hindering their prospects for positive change upon release.
An alternative to conventional imprisonment is found in the Probation of Offenders Act, 1958, with support from Section 360 of the Code of Criminal Procedure, 1973. These legal frameworks enable courts to consider personal freedom based on good behavior, offering a chance for offenders to reform. The Act aligns with a reformative approach, deviating from the traditional Doctrine of Deterrence.
Recognizing the challenges of offenders reintegrating into society post-release, the Act aims to prevent the transformation of minor offenders into habitual criminals. The probation officer, a central figure in this process, plays a pivotal role by directly engaging with probationers. Through functions like pre-sentencing investigations and ongoing supervision, the probation officer ensures compliance with court orders.
However, it’s essential to acknowledge that reformation doesn’t always succeed. In cases of particularly heinous and unrepentant criminals, punishment becomes a necessary measure to safeguard society. Striking a balance between rehabilitation and punishment is crucial in addressing the diverse spectrum of criminal cases.
Scope and Background
“The Probation of Offenders Act, a pivotal development in the field of penology, signifies a shift towards the liberal reform movement, emphasizing the reformation of individuals over strict punishment. Rooted in the positivist ideologies of the juvenile justice system, probation finds its origins in early English law practices, gaining prominence in the 19th and early 20th centuries.
From the 1800s to the present day, probation has aimed to reshape offenders into law-abiding citizens. In India, the legal framework for probation is primarily articulated in procedural codes, with the Children Act, 1908, contributing to the reformatory approach. The expansion of probation law continued with the Indian Jails Committees Report (1919–1920) and the 1923 enactment.
The Probation of Offenders Act, initiated in 1957 and adopted in 1958, marked a significant step forward. It allowed for the release of offenders on probation, emphasizing a reformation-oriented approach. In India, probation is institutionally administered, diverging from Western practices that involve voluntary organizations led by sociologists and psychologists. The Indian system places the authority solely within the judiciary, ensuring a legal and judicial approach to probation.
This approach aligns with the idea that judicial review, under Article 226 of the Indian Constitution, is essential to scrutinize probation orders. This oversight allows judges to evaluate and ensure that probation measures adhere to legal implications, balancing the reformative goals with legal considerations.”
Statutory provisions under the Act
The provision pertaining to the probation of offenders is roughly categorised into substantive and procedural general laws.The Code of Criminal Procedure, 1898, Section 562, was the first section to address probation. Following the 1973 revision, Section 360 of the Code of Criminal Procedure addressed probation. According to this section, if:
- Any person who is not below twenty-one years and is convicted of a crime for which the punishment is imprisonment for seven years or is convicted for an offence punishable with fine.
- Or any person who is below twenty-one years or if any women convicted of an offence not punishable with imprisonment of life or death and no previous conviction is proved against the offender.
- And appears before the court, regardless of the circumstances in which he has committed the offence, the court might release the offender on the promise of good conduct.
The court may choose to release the individual by requiring them to enter a bond committing to good behavior and peace, rather than imposing a prison sentence. In the case of Jugal Kishore Prasad v. The State of Bihar, the Supreme Court emphasized that the goal of the law is to prevent juvenile offenders from becoming hardened criminals due to exposure to older, more experienced criminals in jail. The Act aligns with current trends in penology, which prioritize rehabilitation over punishment. Modern criminal jurisprudence acknowledges that criminal behavior often stems from socio-economic factors, rather than inherent traits, and aims to reform offenders rather than simply seeking retribution.
Section 360 of the Code of Criminal Procedure, 1973 is not applicable when the Probation of the Offenders Act, 1958 is applied. The Probation of the Offender Act, 1958, specifically addresses the court’s release processes for offenders in Sections 3 through 12. Five approaches are used to discuss the salient features of the provisions:
Admonition
Section 3 of the Probation of Offenders Act, 1958 addresses the authority of the court to release an offender with a warning. Admonition, essentially, refers to a stern warning or rebuke. This section outlines the conditions under which an offender can benefit from admonition, including:
- Committing offenses specified under Sections 379, 380, 381, 404, or 420 of the Indian Penal Code, 1860, or any offense punishable by imprisonment for up to two years or with a fine, or both.
- Having no prior convictions for the same offense.
- Considering the nature of the offense and the offender’s character, the court may opt for releasing the offender on probation of good conduct under Section 4 of the Act, instead of imposing a sentence.
- Alternatively, the court may choose to release the offender with a warning, rather than imposing a sentence
Probation on Good Conduct
Section 4 of the Probation of Offenders Act, 1958 addresses the release of offenders based on their good conduct, presenting crucial guidelines for its application:
- This section does not apply if the offender is convicted of a crime punishable by death or life imprisonment.
- The court must consider various factors including the nature of the offense and the character of the offender.
- The court may issue a supervision order to release the offender on probation of good conduct, with a supervisory period of at least one year. A designated probation officer must oversee the individual during this period, whose name should be specified in the order.
- The court may require the offender to sign a bond, with or without sureties, agreeing to appear and accept sentence if summoned within a maximum period of three years, during which the offender must exhibit good behavior.
- Conditions may be imposed in the supervision order, and the court is responsible for explaining these terms to the offender. The order should promptly be provided to the offender.
- While a probation officer’s report is not mandatory for enforcing this provision, the court may consider such information before granting a probation order for good behavior.
Cost and Compensation
Section 5 of the Probation of the Offenders Act, 1958 says that if any person is released under Section 3 or Section 4 of this Act, even then the court might order:
- The offender to pay compensation to the victim for the loss or the injury occurred to him.
- Cost of the proceeding as the court may think reasonable.
Offenders under 21 years of age
Section 6 of the Probation of Offenders Act, 1958 addresses the limitation on imprisoning offenders under the age of twenty-one. Key points to consider before applying Section 6 are as follows:
- If the accused is under 21, the court must request a report from the Probation Officer. If the court deems neither admonition (Section 3) nor release on probation of good conduct (Section 4) suitable, it may sentence the offender to imprisonment, but only after stating reasons for doing so. The court must ascertain whether Section 3 or Section 4 applies, necessitating the Probation Officer’s report.
- The court evaluates the nature of the offense and the physical and mental condition of the offender before making a decision.
- Since it’s challenging for the court to determine the applicability of Section 3 or Section 4 without the Probation Officer’s report, obtaining this report is mandatory under Section 6.
- Upon receiving the report, the court reviews it to determine if the offender qualifies for admonition or probation of good conduct.
- If the court decides against releasing the offender under Section 3 or Section 4, it may sentence them while documenting the reasons for its decision.
Report of probation officers
Section 7 of the Probation of Offenders Act, 1958 addresses the confidentiality of probation officer reports. While a probation officer’s report is not required for applying Section 4, it is mandatory under Section 6 if the offender is under 21. However, if such a report exists on record, the court must consider it under Section 4 and cannot disregard it.
Important Case Laws on Sections 3, 4 & 6 of The Probation of Offenders Act
In the case of Keshav Sitaram Sali v. State of Maharashtra, the Supreme Court ruled that in instances of minor theft, the High Court should have opted to apply 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 fine.
In Basikesan v. State of Orissa, a 20-year-old youth was convicted of an offense under section 380 of the Indian Penal Code, 1860, with no prior convictions. The court determined that the offense was not premeditated and thus warranted the application of section 3, resulting in the offender’s release after a warning.
In Daulat Ram v. State of Haryana, it was decided that section 6 aims to prevent juvenile offenders from being incarcerated for non-serious offenses, aiming to shield them from negative influences in jail. Therefore, the provision should be interpreted generously in line with its underlying principles.
The age of the individual is pertinent not to establish guilt but to determine the appropriate punishment for the offense. Thus, if an offender is found to be over 21 at the time of conviction, section 6(1) does not apply.
Salient features of the Act
The most important salient feature of the act is
- The Probation of Offenders Act of 1958 focuses on rehabilitating first-time and juvenile offenders instead of incarcerating them with hardened criminals.
- It allows for the release of first offenders after admonition or notice for certain offenses, including theft and fraud.
- The Act enables courts to order compensation for victims and prosecution costs to be reimbursed by the accused.
- Courts have the authority to release offenders on probation for good behavior, provided the crime is not punishable by death or life imprisonment.
- Judges can modify bail conditions and extend probation periods for up to three years.
- Special protections are provided for individuals under the age of twenty-one to prevent imprisonment, except for offenses punishable by life imprisonment.
- Courts can issue warrants or summonses for offenders who fail to comply with probation terms.
- The Act grants courts the power to try and sentence offenders, including cases heard on appeal or revision.
- Probation officers play a crucial role in supporting and supervising probationers, assisting them in finding suitable employment.
- The Act applies throughout India, except for Jammu and Kashmir, and allows state governments to implement it on different dates in various parts of the state.
The offence for which probation cannot be granted under the Act
There are certain cases in which the Probation of the Offender Act is not applicable. In normal circumstances the Probation of the Offender Act is not applicable to:
- The Indian Penal Code contains Sections 409, 467, and 471 that address documents used as true forgeries, valuable security, and violation of confidence by public officers. On February 3, 1983, the court denied the release of the offenders in Rev vs. By Adv. Sri P.K. Ravisankar and State Of Gujarat vs. V.A. Chauhan, citing Sections 3 and 4 of the Probation of the Offenders Act, 1958.
- The Offenders Act of 1958’s probation does not permit release on the pretext of kidnapping or abduction. Section 4 would not be extended to the heinous criminal who was found guilty of kidnapping a teenage girl and forcing her into sexual submission for commercial gain, as was noted in the matter of Smt. Devki v. State of Haryana, AIR 1979 SC 1948.
- The Act does not permit the release of repeat offenders. The appellant was accused of stealing gold in Kamroonissa v. the State of Maharashtra, AIR 1974 SC 2117. She received a severe prison sentence as punishment. She was not yet 21 years old. Thus, in accordance with Sections 3 and 4 of the Offender’s Act probation, the probation officer asked the court to grant her parole. The appellant had previously committed a number of crimes and had been arrested in 1971, the court noted in rejecting the claim.
- The Indian Penal Code, Section 325, addresses violence that results in serious injury. Therefore, there is no release under the Probation of the Offender Act based on this.
- Sikkim State v. Dorjee Sherpa and Others In certain instances, the Court disregards technical opinions and ought to examine specific factors, including the possibility of job loss, when applying the Probation of Offenders Act’s provisions, even in situations involving serious offences. It was further suggested that the Court would consider the fact that, in addition to having no criminal record, inmates from middle-class households frequently become victims of circumstances brought about by uninvited business and other bad pressures that these younger generations are exposed to.
The provisions of Probation of Offenders Act, 1958 normally cannot be applied to:-
· ACB cases
· Section 304 of the Indian Penal Code,
· NDPS Cases
· Section 304-Aof the Indian Penal Code
· Section 325 of the Indian Penal Code
· Sections 409, 467, 471 of the Indian Penal Code
· Kidnap and abduction
· Habitual offenders
Conclusion
In Conclusion, the goal of the reformative punishment theory and the alternative punishment measure, such as probation, can only be realised with collaboration between the administration and the courts. For a nation like India, where jails are frequently overcrowded and human rights violations occur frequently, which would harden people’s inner humanity, it would be quite beneficial. Every person’s human nature is validated during probation, which is why it is so important. The ultimate goal of reform and rehabilitation is to return persons who have committed crimes to an orderly community, but this requires working within the constraints of current social conditions.