Probation of Offenders Act

8/17/2019 Probation of Offenders Act

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PROBATION: CONCEPT

The release of offenders on probation is a treatment device prescribed by the court for persons convicted of

offences against the law, during which the probationer lives in the community and regulates his own life under

condi/tions imposed by the court or other constituted authority, and is subject to supervision by a probation

officer.1

The term ‘probation’ is derived from the latin word ‘probare’ which means “to test” or ‘to prove’. S. Cunnings

observed, “Probation is a matter of discipline and treatment. If probationers are carefully chosen and

supervision work is performed with care and caution, it can work miracles in the field of rehabilitation”.

Don M. Gottfriedson observed that “probation is 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”.

Donald Taft has defined probation as the postponement of final judgement or sentence in a criminal case, giving

the offender an opportunity to improve his conduct and to readjust himself to the community, often on a

condition imposed by the court and under the guidance and supervision of an officer of the court. In case of

juvenile probationers, non-criminal procedure is adopted and it is less formal. Thus, the system of probation

involves restrictions on the liberty of probationer and refrains him from disapproved behaviour, or conversely

compels him to perform certain required acts which may be irksome or even painful to him.2

The basic purpose is to keep the delinquent away from evil consequences of incarceration and offer him an

opportunity to lead socially useful life without violating the law. The philosophy underlying probation is based

on the assumption that most persons who become criminals do so because of their environment and special

circumstances and that in suitable cases it is possible to change the conditions which led to a person’s fall from

proper standards and reclaim him as a sound normal citizen.3

Probation is often misconceived by some people as an easy let-off or a form of leniency and not a punishment.

But this notion is rather misleading. Probation, whether it is for juveniles or adults, permits a more normal

social experience than institutionalisation and makes possible varying degrees of control over delinquents

together with an option of sentencing him to an institution if he violates probation conditions.

1 Probation and Related Measures (New York) United Nations, Department of Social Affairs, (1951), 287.2 Taft, ‘England:Criminology’, 4th Edt., 375.3 Paranjape N.V, ‘Criminology & Penology with victimology’, 15th Edt.., 2012, Central Law Publications, 522


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Probation is a Conditional Suspension of Sentence

Probation is a conditional release of an offender under supervision. As a corrective measure, supervision can be

used in two ways, namely, before or after the custodial sentence. If it is applied to an offender before custodial

sentence, it is known as ‘probation’ but if it is applied to an offender who has just been released from a

custodial sentence, then it is known as ‘parole’. Undoubtedly, probation is an embodiment of a progressive

criminal policy based on individualisation of treatment. It is rather a selective measure depending on the

discretion of the court. The actual selection for release on probation depends on the careful investigation of

personal case-history and social circumstances of the offender.4

The system of probation involves conditional suspension of punishment. An offender may be released on

probation either after the sentence is passed in his case or without passing of a sentence. In the former case, the

sentence is suspended and delinquent is placed under probation while in the latter, he is put under probation

straightway without any sentence being passed on him. Thus, the suspension of sentence may refer either to the

suspension of the execution of sentence in the former case or suspension of imposition of sentence in the latter

case, depending upon the discretion of the court.5

The offender may be released on probation after the suspension of his sentence on following two

considerations, namely. –

(i) His case may be considered as really hopeful when judicial leniency is expedient;

(ii) Probation may be intended to serve positive role as a method of guidance, assistance and supervision

of the probationer so that he may rehabilitate himself for the normal law-abiding life. The suspensionof probationer’s sentence is conditioned by his good behaviour during the period of probation and

therefore, it acts as a sufficient deterrent for the offender and serves as a punitive reaction to crime.

In other words, the system of probation serves to bridge the gap between punishment and measures

of safety, that is, the moral responsibility and the social defence, and thus it seeks to combine the

punitive and the treatment reaction to crime.

According to Howard Jones, the following conditions must be fulfilled before allowing the benefit of release on

probations to an accused person. –

(1) No punishment should be imposed initially;

(2) The offender should be given a definite period to redeem himself;

(3) During the period, delinquent should be placed under supervision of a probation officer for two obvious

reasons: -

4 Supra 3, p. 5235 Ibid.


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(i) In order to keep the court informed about his progress; and

(ii) To help him to make the best use of the opportunity given to him.

(4) If the offender responds favourably, his initial crime should be deemed to have been scrapped, but if he

fails to do so, he may be brought back to court and sentenced for the original crime as also for any other

crime which he might have committed.

It is thus evident is not a “let-off” as alleged by some critics because the probationer must either respond

favourably to reformation or suffer imprisonment later. The original offence remains punishable throughout the

period of probation and the offender is liable to be punished in case he violates the conditions of the probation

order.

Probation: It’s Definitions

Probation as a legal disposition only. –

One point of view sees probation simply as a suspension of sentence by the court. Since sentence is not

imposed, the offender remains in the community until the length of the sentence has expired, unless, of course,

in the meantime he has engaged in any conduct that would warrant carrying out the sentence. This system

leaves everything to the probationer and makes of probation a simple policing procedure. Therefore, it implies

two things to the probationer: another chance, and the threat of punishment should he fail to improve his

behaviour.

In 1908, judge McKenzie Cleland put it this way: probation is a plan “of suspending over offenders the

maximum sentence permitted by law” and of allowing them “to determine by their subsequent conduct whether

they should lose or retain their liberty.. with the full knowledge that further delinquency meant.. severe

punishment.”6

Probation as a measure of leniency. –

It probably best represents the general lay point of view, as well as that of most probationers. This fact presents

a basic problem to professional personnel, who view probation as a form of treatment. Many offenders,

however, especially among juveniles, feel their acts are unfortunate slips, and while possibly inexplicable, they

are, in the final analysis, choices between right and wrong, choices which the offender feels capable of

controlling.7

Probation as a punitive measure. –

6 Cleland, “New Gospel in Criminology; Municipal Court of Chicago”, 31 McClure’s 358-62, June 19087 Lewis Diana, “The Journal of Criminal Law, Criminology, and Police science”, Northwestern University School of Law, Vol. 51,

No.2, Jul- Aug 1960, 190


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This view has found little acceptance in the literature, especially during the 1910-1960’s. According to Almy

probation must be presented to the probationer as a punishment, one which permits him to escape commitment

and its stigma but one which also makes other demands. If these demands are not met, then the probationer can

expect the same type of punishment as other defenders.8 The assumption underlying such a view is that it is the

certainty of punishment that deters.

Probation as an administrative process. –

It is likely that earlier ideas of reform and rehabilitation attached to probation came about as a reaction to the

various abuses associated with the imprisonment of children. As a result, a great deal of sentiment was tied to

the concept of probation in its beginning. This sentiment, alongwith the goal of reform or rehabilitation, formed

the nucleus of the conception of probation as an administrative process. Essentially what probation consists of

under this conception is the execution of concrete measures aimed at helping the offender stay out of further

trouble. The ultimate goal of complete rehabilitation in this approach, however, was something which was more

hoped for than worked for. In this respect it is a fairly negative approach consisting mainly of things done for

the offender in the hope that they will somehow deter him from a further career in crime. Thus, arranging for

medical treatment, making appointment for the administration of tests, effecting school transfers, seeking

employment for the offender, checking on his activities, and so on constitute the major content of probation

under this viewpoint.9

Probation as social case work treatment. –

Case work may be defined as a process of attempting to understand the needs, impulses and actions of anindividual and of helping him to recognise these in a way that is satisfying to himself and yet in accord with the

demands of social living. The case worker is concerned with assisting the individual to realize his own

capacities to the fullest extent, as well as to orient him to the resources existing within his environment which

will provide a satisfying outlet.

The probation officer’s work concerns itself with helping the man under supervision to bring to conscious

expression his underlying emotional conflicts and thus rid these deep-seated unknown drives of their tension

and potency.

Probation as a combination of case work and administration. –

This point of view regarding probation does not, as it might suggest, constitute a catch-all for those approaches

which do not fit the categories discussed thus far. From this standpoint probation is represented both by case

8 Almy, “Probation as Punishment”, 24 Survey 657 (1910) 9 Supra 7, 191


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work functions and by administrative or executive procedures. Where case work is paramount, administrative

functions are supplementary. Where administrative duties are indicated as the primary plan of approach, case

work skills and techniques, however defined, must be utilized in the performance of those duties. In other

words, some cases may be felt to require intensive interviews more than anything else. But in the course of most

cases there are, practically without exception, other things to be done as well: arranging a transfer of schools,

scheduling medical and other appointments, and so on. Other cases may be felt to call for mainly administrativefunctions, such as those just mentioned, plus limited and superficial contacts with the probationers. But in

performing those functions and in making those contacts a case work approach must be applied.

In summary, then, this point of view sees probation as the simultaneous application of case work and

administrative functions, but in specific cases it is more one than the other. Whenever is paramount in any

particular case, the other is complementary.10

Probation: Object

The Supreme Court spelt out the object of the Probation of Offenders Act, 1958 in the following words :

“ The purpose of the Act is to stop conversion of youthful offenders into stubborn criminals as a result of their

association with hardened criminals of mature age in case of youthful offenders are sentenced to undergo

imprisonment in jail. Modern criminal jurisprudence recognises that no one is born criminals and that a good

many crimes are the result of socio-economic environment. Although not much can be done for hardened

criminals, yet a considerable emphasis has been laid on bringing about reform of young offenders not guilty of

very serious offences by preventing their association with hardened criminals. The Act gives statutory

recognition to the above objective.”11

Probation: Historical Development

The early origins of probation were variously and unevenly shaped by a variety of mechanisms, people

ideologies, economies and politics in diverse orderings across various jurisdictions worldwide, probation’ one

common penal cornerstone, across all those different jurisdictions, was, and continues to be, the prison. In order

to set this argument in an appropriate global context, it is necessary to study early origins and the main events inthe international development of probation.

Early Origins of Probation. –

10 Supra 7, 19711 Ramji Missar v. State of Bihar, AIR 1963 SC 1088; Ram Naresh Pandey v. State of M.P., (1974) 3 SCC 30; Jagdev Singh v. State

of Punjab, AIR 1973 SC 2427; Musa Khan v. State of Maharashtra, 1976 Cri. L.J. 1987 (SC).


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Some authorities trace the roots of probation to the middle ages when such devices as the benefit of clergy and

the law of sanctuary made it possible either to avoid or at least to postpone punishment. It is more likely that

there was not any continuous linear development of probation, although one can point to various forerunners

such as the judicial reprieve, by which the court suspended the imposition or execution of a sentence, and the

practice of releasing an offender on his own recognizance. Consequently, probation was probably more

directly an outgrowth of the different methods in England and America for suspending sentence.12

Under the common law the courts of England had for many years bound over petty offenders to sureties or

released them on their own recognizance even without sureties.13

Such practices were also common in some of

the American colonies, especially Massachussets, which in 1836 recognized by law the releasing of minor

offenders with sureties. In 1869 this same state also authorized the placement, after investigation, of youthful

offenders in private homes under the supervision of an agent of the state.

Credit for the first use of the term probation foes to John Augustus, a Boston shoemaker, who apparently

became interested in befriending violators of the law, bailed many of them out of jail, and provided them with

sympathetic supervision. John Augustus, the "Father of Probation," is recognized as the first true probation

officer. Augustus was born in Woburn, Massachusetts in 1785. By 1829, he was a permanent resident of Boston

and the owner of a successful boot-making business. It was undoubtedly his membership in the Washington

Total Abstinence Society that led him to the Boston courts. Washingtonians abstained from alcohol themselves

and were convinced that abusers of alcohol could be rehabilitated through understanding, kindness, and

sustained moral suasion, rather than through conviction and jail sentences.

In 1841, John Augustus attended police court to bail out a "common drunkard," the first probationer. The

offender was ordered to appear in court three weeks later for sentencing. He returned to court a sober man,

accompanied by Augustus. To the astonishment of all in attendance, his appearance and demeanor had

dramatically changed.

Augustus thus began an 18-year career as a volunteer probation officer. Not all of the offenders helped by

Augustus were alcohol abusers, nor were all prospective probationers taken under his wing. Close attention was

paid to evaluating whether or not a candidate would likely prove to be a successful subject for probation. The

offender's character, age, and the people, places, and things apt to influence him or her were all considered.

Augustus was subsequently credited with founding the investigations process, one of three main concepts of

modern probation, the other two being intake and supervision. Augustus, who kept detailed notes on his

activities, was also the first to apply the term "probation" to his method of treating offenders.

12 Halpern, ‘Probation, Encyclopedia of Criminology’, Philosophical library, New York, 1949, 388. 13 United Nations, Department of Social Affairs, Probation and Related Matters 16, 1951.


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By 1858, John Augustus had provided bail for 1,946 men and women. Reportedly, only 10 of this number

forfeited their bond, a remarkable accomplishment when measured against any standard. His reformer's zeal and

dogged persistence won him the opposition of certain segments of Boston society as well as the devotion and

aid of many Boston philanthropists and organizations.

It was not until 1878, however, that the first probation law was passed, Massachussets again taking the lead. In

that year mayor of Boston was given the power to appoint probation officers, and was only two years later, in

1880, the law was extended to apply to other communities within the state. Then in 1891 Massachussets passed

a second law, which required the extension of probation to the criminal courts.14

Two other New England states

Rhode island, Vermont, New Jersey enacted adult probation laws in 1899 and 1900.15

By 1900, though, only

five states- Massachusets, Missouri, Rhode island, New Jersey, and Vermont-recognized probation legally.16

Social, Cultural, Economic and Political context. –

The Power to suspend sentences, derived as it was from English common law, provided the Crown or state withthe mechanism by which to ameliorate the severity of the law. The practice grew originally ‘because of the need

to limit and enforce the conditions of suspended sentence as well as through the social, humanitarian urge to

consider the individual factors, to make the punishment fit the individual instead of the crime, and to give

guidance and help to the offender to promote his rehabilitation’. The 19th

century was one of ‘invention and

material progress’ ( and at no time in history was there such an interest in crime), probation emerged from 19th

century interest in improving prisons and the fact that the creation of reformatories and training schools led to

the discovery of the potential for reform in first offenders and the young . Moreover, it was linked to an

increased theoretical awareness, amongst humanitarians committed to reform of the criminal justice system, of

the need for investigation and treatment of the individual.17

This take on humanitarian motivation is taken a stage further by Lopez-Rey (1957) in an interesting argument

about the closeness of the Anglo-American and Continental systems of probation. He asserts that, just as in

Europe, ‘rather than treatment and supervision being the main feature of the Anglo -Saxon model “the ratio

essendi” of probation was rather desire for protecting certain offenders against the then existing inhumane

conditions of prison and not of creating a specific method of treatment’.18

Some earlier commentators place the emergence of probation within the context of a rebellion against the

authority of the judiciary sparked by the harmful arbitrariness of sentencing and harsh punishment in the second

14 Barnes & Teeters, ‘New Horizons in Criminology’, 2nd Edt, 1955, New York, 760.15 Charles L. Chute, ‘Probation and Suspended sentence’, Journal of the American Institute of Criminal law and crimilogy, Vol. 12

No. 4, 1922, 55916

Barnes & Teeters, ‘New Horizons in Criminology’, 2nd

Edt, 1955, New York, 760.17 Charles L. Chute, ‘The extension of Probation in Criminal Courts’, Annals of the American Academy of Political and Socia

Science, Progress in the law, (1928),18 Lopez- Rey, M., ‘United Nations Activities and International Trends in Probation’, Howard Journal IX, (1957),


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half of the nineteenth century.19

In a more generalized view the probation fulfilled the social need of keeping

offenders out of the prison environment that created dangerous habitual offenders, and it did so in criminal

justice systems dominated by prison and the concept of deterrence through capital and corporal punishment

The underlying factor her is ‘dangerousness’. Prison, through circumstance, not design, became the only penal

device and, except in the case of ‘hardened criminals’, was harmful and stigmatizing.20

The unifying factor in the international spread of probation about which we can be most confident is the prison

itself. During the nineteenth century, prison became the cornerstone of penal systems throughout Europe and

indeed the world. The impetus for that came from the reformatory impulses of the likes of Bentham, Howard

and Fry and when, in the late nineteenth century, ‘public and expert opinion agreed that imprisonment did not

and could not fulfil its original ideal of treatment’, many European states developed non -custodial sentences

Probation spread internationally in significant part because of the loss of faith in prison and partly because it

became a symbol of ‘the state’s confidence in its ability to extend discipline and control beyond the prison and

into the community’ .

21

Historical Perspective of Probation Law in India

In India, probation received statutory recognition for the first time in 1898 through section 562 of the Code of

Criminal Procedure, 1908. Under the provision of this section, the first offender convicted of theft, dishonest

mis-appropriation or any other offence under the Indian Penal Code punishable with not more than two years

imprisonment could be released on probation of good conduct at the discretion of the Court. Later, the children

Act, 1908, also empowered the court to release certain offenders on probation of good conduct. Similar

provisions existed in the Children Act, 1960 which were repealed consequent to passing of the Juvenile Justice

Act, 1986. This Act was further substituted by the Juvenile Justice (Care & Protection of Children) Act, 2000.22

The scope of probation law was extended further by the legislation23 in 1923. Consequent to Indian Jail

Reforms Committee’s Report (1919-20), the first offenders were to be treated more liberally and could even be

released unconditionally after admonition.

The release of offenders on probation could be extended not only to offences under the Indian Penal Code but

also to offences falling under special enactments. To cope up with the extended probation, a number of Remand

19 Cornil P., ‘Substitutes for Imprisonment in Belgium’, in S. Glueck, ed., Probation and Criminal Justice, The Macmillan Company

(1933), New York.20 Timasheff, ‘ One Hundred Years of Probation 1841-1941’, Fordham University Press, (1941). 21

O’ Brien, ‘The Prison on the Continent: Europe, 1865-1965’, The Oxford History of the Prison: The practice of Punishment inWestern Society, Oxford University Press, 1995.22 Supra 3, p. 52923 Section 157 of the Amending Act No. XVIII of 1923.


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Homes, Rescue homes, Certified schools and Industrial schools were established in Bombay, Madras &

Calcutta.24

The Government of India in 1931, prepared a draft of Probation of Offenders Bill and circulated it to the then

Provincial Governments for their views. However, the Bill could not be proceeded further due to pre-occupation

of the Provincial Governments.25

Later, the Government of India in 1934, informed the local governments that

there were no prospects of a central legislation being enacted on probation and they were free to enact suitable

laws on the lines of the draft bill. Consequently some of the provinces enacted probation laws which assumed

considerable importance because they introduced for the first time provisions regarding pre-sentence enquiry

report of probation officer, supervision by paid and voluntary probation officer and compensation for injury

caused to a person b the offender’s delinquent act.26

After the Indian Independence, certain concrete steps were initiated to popularise probation as a correctional

measure of treatment of offenders. A Probation Conference was held in Bombay in 1952 on the advice of Dr

Walter Reckless, the UN Technical expert on Correctional services. Dr. Walter addressed the Conference and

gave valuable suggestions on prison Administration in India. 27

Consequently, All India Jail Manual Committee was formed to review the working of the Indian Jails and

suggest measures for reform in the system. The Committee in its report of 1957 pointed out that there was no

liaison between the government, the probation personnel, the police, and the prison administrators in

implementation of the probation law. The Committee also highlighted the need for a central law on probation

with greater emphasis on release of offenders on probation of good conduct so that they are reclaimed as self-

reliant members of society.28

In 1958, the Probation of Offenders Act was enacted by the Parliament.

Probation: the Criminal Procedure Code, 1973

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

24 Sen P.K. Penology : Old & New (1943), p. 169.25

Kulkarni R.A., ‘Probation of Offenders in India’, (1971) p.5 26 Supra 3, p. 53027 Ibid.28 Ibid .


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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.

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.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating

or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years'

imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the

Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or

physical or mental condition of the offender and to the trivial nature of the offence or any extenuating

circumstances under which the offence was committed, instead of sentencing him to any punishment, release

him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session

when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of

Session may, on appeal when there is a right of appeal to the Court, or when exercising its powers of revision

set aside such order, and in lieu thereof pass sentence on such offender according, to law

Provided that the High Court or Court of Session shaII not under this sub-section inflict a greater punishmen

than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so tar as may be, apply in the case of sureties offered in

pursuance of the provisions of this section.


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(7) The Court, before directing the release of an offender under sub-section (1) shall be satisfied that an

offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court

acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of

his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance,

it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such 'warrant, shall be brought forthwith before the Court issuing

the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with

a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass

sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or

the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training orrehabilitation of youthful offenders.

1. Grant of probation after conviction but before sentence:

Under this section an Offender can be released on probation only after he is convicted and before he is

sentenced to a punishment. If the Court convicts the accused and sentences him to any punishment, the

provision of this section cannot be applied.29 Moreover the power of granting of probation is discretionary with

the Court. Section 360 is not a mandatory provision. The exercise of power under this section is purely

discretionary one with the Court.30

2. Conditions for release on probation. —

When the offender is 21 years of age or above, he shall be entitled to the benefit of this section when two

conditions are fulfilled :

(1) when he has not been previously convicted, and

(2) when he has been convicted of an offence punishable with fine only or with imprisonment for a term

of 7 years or less.

When the accused is under 21 years of age, or a woman, in order to get the benefit of this section, he or she

should not have been previously convicted. Secondly, the offence of which he is convicted is not punishable

29 re : Adapa Hanumantha Rao, AIR 1957 AP 413 : 1957 Cri L 925 : 1955 Andh LT (Cri) 67 ; State v. Jagdish, AIR 1970 Raj 110 :

1970 Cri UJ 731.30 Ram Bahadur v. State of U.P., 1975 Cri L,J 1279 (All).


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with death or imprisonment for life. A person may be punished for imprisonment for the specified period

mentioned in the section under any law, may be Indian Penal Code or under other Penal Law. If the conviction

is for the period specified in the section, the convicted person would be entitled to the benefit of the section

provided the other circumstances exist.

In granting probation under this section, the sympathy for the offender has not to play any part. The Court has to

take into consideration the age, character or antecedents of the offender and the circumstances in which the

offence was committed.31

The persons of tender age and of very advanced age are certainly entitled to a pardon

under this section, but this does not mean that the persons who are not of that age are in no way to be granted

pardon. No hard and fast rule can be laid down as to the circumstances in which pardon may be granted. But

when the offence is an act of daring and of reprehensible nature involving previous well-arranged preparation

the offender does not deserve pardon under this section.

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 has been found on the evidence

guilty. The object of the Act is to prevent the turning of youthful offenders into criminals by their association

with hardened criminals of mature age within the walls of the prison. The method adopted is to attempt their

possible reformation instead of inflicting on them the normal punishment for their crime. Consequently, the age

referred by the opening words of Section 6 (1) of Probation of Offenders Act or Section 360, Criminal

Procedure Code should be that when the Court is dealing with the offenders, that being the point of time when

the Court has to choose between the two alternatives which Act in supersession of the normal Penal Law vests

in it, viz. sentence the offender to imprisonment or to release him on probation.32

I. Probation only when no previous conviction:

Probation can be sought only when no previous conviction is proved. Before a person may be granted pardon, it

must be proved that he has not been previously convicted under the provisions of any law 33. In debarring a

person from getting benefit of this section on the ground of conviction, the conviction must be previous to the

conviction in which the pardon is to be granted.

II.

To keep the peace and be of good behavior:

Meaning of the words to keep the peace and be of good behavior" used in sub-section (1.) of Section 360 will

certainly imply different concepts relatable to different situations, "keeping the peace" will of course mean that

peace of the society be not disturbed through any act of the accused that is he should commit no offence. "Being

31 Khalil v. State, 1976 Cri LJ 465 (All) ; State of Maharashtra v. B.R. Patil, 1978 Cri LJ 411 (Born).32 Ramji v. State of Bihar, AIR 1963 SC 1088: 1963 (2) Cri 14 173: 1963 BLJR 643: 1963 Mad 1.f (Cri) 575 : (1963) 2 SCJ 571.33 Emperor v. Hasmat Ali, AIR 1935 Bom 188; Devasia Joseph v. State of Kerala, 1982 Cri 14. 714 (Ker)


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of good behavior" has wider implications. It means not only the behavior of a person who does not commit

breach of law, but the behavior of a citizen who is a credit to the society. It contemplates positive good behavior

and may imply the undoing of what he did for which he was brought before the Court to receive the sentence. In

specific cases it may even be necessary for the Court to specify the conduct which will be implied in the good

behavior which the man on probation may have to carry out.34

The Court shall order that the accused be

released on his entering into a bond with or without surety. He shall make the offender to execute a personal bond and to provide security. The bond shall contain the condition that the accused shall appear and receive

sentence when called upon. The bond should also be to the effect that the offender shall keep the peace and be

of good behavior in the mean time.

2. Punishment in the offences covered:

I. Not punishable with death or imprisonment for life.

The term "punishment for death or punishment for life" cannot be read conjunctively. They are to be readdisjunctively. It means that if the offence is punishable for imprisonment for life or imprisonment for years and

fine, it cannot be read conjunctively so as to mean that it provides an alternative sentence for the offence

concerned. Hence, where the accused is convicted for an offence punishable with imprisonment for life and also

for punishment for some years, it shall be said that he is convicted for an offence punishable with imprisonment

for life. He cannot be given the benefit of Section 4 or 6 of the Probation of Offenders Act, nor of Section 360

of the Criminal Procedure Code.35

II.

Offences punishable with only fine:

In Section 562 of the old Act the words "of an offence punishable with fine only" did not find a place,

consequently, there was a controversy. According to one view the section was not applicable to offences

punishable with fine only36

. To the contrary it was held that the section was applicable to cases punishable only

with fine also.37

But the present section applies to offences punishable with fine also.

3. Admonition in what cases to be awarded:

When an accused is convicted he may instead of being sentenced be admonished under the following

circumstances :

34 Sindhiya Devi v. State of U.P., 1974 Cri U 1403 (All).35 Jogi Nahak v. State, AIR 1965 on 106 : 1965 (2) Cri LJ 51 ; State v. Sheo Shanker, AIR 1956 All 326: 1956 Cri LJ 659 ; Ghetti v.

State of MP, AIR 1959 MP 291 : 1959 Cri 989 ; Sarkar v. jalam Singh, AIR 1950 Raj 28 : 51 Cr' 1332 ; Public Prosecutor vPaneswara Rao, AIR 1946 Mad 173 : 1945. (2) Mad 14 575 ; Shabir v. State, 1969 Cri LJ 1282 (Del).36 Devidas v. State, 1953 ALJ 466.37 Vaijappa V. Emperor, AIR 1935 Bom 402; R.K. Verma v. State, 1969 ALJ 846.


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(1) If the case is of theft in building, of dishonest misappropriation, cheating or any offence under the

Indian Penal Code punishable with not more than two years of imprisonment or an offence punishable

with fine only,

(2) if no previous conviction is proved,

(3) if the Court considers it proper having regard to the age, character, antecedents, physical or mental

condition, to the trivial nature, of the offence or the extenuating circumstances in which the offence was

committed.

I. Dishonest misappropriation or cheating:

There is controversy as to the meaning of these words. According to one view, the words "dishonest

misappropriation and cheating" mean only simple form of misappropriation and cheating given in Section 403

and. Section 417.38

To the contrary, it has been held that those words apply to the offences of misappropriation

or cheating in all the form.39 Section 3 of the Probation of Offenders Act which is almost the same as sub-

section (3) of the present section, does not use the words "theft', theft in building, dishonest misappropriation,

cheating" it reads when a person is found guilty of having committed an offence punishable under Section 379

or Section 380 or Section 318 or Section 404 or Section 420 of the Indian Penal Code, the Court instead of

sentencing him release him after due admonition". Misappropriation simpliciter is punished under Section 403

Section 404 deals with punishment of dishonest misappropriation of the property possessed by a deceased

person at the time of his death. Cheating is defined under Section 415 and punishment for cheating is provided

in Section 417. Sections 418 and 419 are different forms of cheating. Section 420 is cheating involving inducingand delivery of property. Section 3 of the Probation Act makes provision only for one form of dishonest

misappropriation and only one form of cheating. The present section instead of mentioning a particular form of

cheating or dishonest misappropriation used the words "Misappropriation or cheating". From this it is clear that

these words are used in the section in their wider sense and under sub-section (3) an accused may be released on

admonition for offences of dishonest misappropriation or cheating in any form.

II. Offences punishable for not more than two years' imprisonment:

The offences which are earlier mentioned (theft, misappropriation, cheating, dishonest misappropriation of

property in the section are punishable with imprisonment for more than two years and therefore, it was

necessary to mention them so as to include them in addition to offences under the Indian Penal Code punishable

with not more than two years' imprisonment. The words "any offence" under the Indian Penal Code, therefore,

cannot be read ejusdam generis with the offences which are mentioned earlier. This clause stands by itself and

38 Ramjan v. Emperor, AIR 1915 Boni. 145 ; Sundaram Iyyar v. Emperor, AIR 1919 Mad 583.39 Harnarayan v. Ramjidas, AIR 1914 All 191.


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indicates that all offences punishable with not more than two years' imprisonment are also capable of being

dealt with under the section. For admonition the offence must be of a trivial nature. Offences under Section 304-

A or 279, Indian Penal Code are not of a trivial nature. In such cases admonition should not be granted. If the

Court so desires, the accused may be released on probation. Any offence under the Indian Penal Code

punishable with imprisonment for less than two years can be dealt with under this sub- section.40

However

Power to release an accused on admonition can be exercised only in respect of offences under the Indian PenalCode and that also only to the offences mentioned in sub-section (3). The provisions of this sub-section have no

application to the offences punishable in Acts other than Indian Penal Code.41

4. Mandatory provisions regarding granting of benefit:

Section 361 of the Code mandates assigning special reasons by the Court for not dealing with the accused under

Section 360 of CrPC. or under the provisions of the Probation of Offenders Act or the Children Act or any other

law for the treatment training or rehabilitation of youthful offenders. Section 361 is incorporate by the Criminal

Procedure Code, 1973 for the first time in order to avoid rendering such offenders hardened criminals by

keeping them along with other criminals in regular prisons. Further an in-ordinately long prison term is sure to

turn such offender into obdurate criminals. Whenever the facts and circumstances of the case call for extension

of the benefit conferred by the provision of Section 360 of the Code and the several enactments, it is the duty of

the Courts to extend the said benefit. In case the Court feels in a particular case that the convict could not be

dealt with under the said provision and the several other enactments, it is its mandatory duty to assign special

reasons in the judgment for denying the said benefit to the convicts.42 Opportunity to reform is one of the basic

policies of legislation now and is a part and parcel of society and social reforms.

5. Scope of Probation under Section 360 of Cr.P.C. and Probation of Offenders Act compared

The Probation of Offenders Act 1958 enacts the law relating to probation and admonition similar to those

giving in Section 360, Criminal Procedure Code. Section 1 of the Probation of Offenders Act lays down that the

Act extends to the whole of India except that State of Jammu and Kashmir. At the same time the section says

that the Act shall come into force in a State on such date as the State Government may, by notification in the

official Gazette, appoint. The said Act has been enforced in States of Andhra Pradesh, Andaman and Nicobar

Islands, in some districts of Assam, Bihar, Delhi, Daman and Diu, districts of Haryana, Himachal Pradesh,

some districts of Maharashtra, Mysore, some districts of Orissa, some districts of Punjab, Rajasthan, some

districts of Tamil Nadu, Tripura, some districts of West Bengal, Dadra and Nagar Haveli (U.T.), prior to the

enforcement of the Criminal Procedure Code, 1973. Sub-section (10) of Section 360 lays down that the

40 Katta Mallu v. Purna Chandra, AIR 1967 SC 1363 : (1967) 1 SCWR 415 : 1967 SCD 437 : 1967 Mah LJ 503.41 State v. Mustaq Husain, AIR 1965 MP 13742 Guvvala Kotaiah v. State of A.P., 1990 Cri LJ 934 at 938 (AP).


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provisions of the section shall not affect the provisions of Probation of Offenders Act, 1958. From this i

follows that in the part of India where in the Probation of Offenders Act has been enforced by the State

concerned, the law relating to release an offer on probation or admonition shall be governed by the provisions

of Probation of Offenders Act, 1958, Section 360 of the Criminal Procedure Code will not apply in that area

But in the places where the Probation of Offenders Act, 1958 has not been enforced the release of offenders on

probation or after admonition shall be governed by Section 360 of Criminal Procedure Code provided the Statehas not enacted some other provision for the purpose.

43

Unlike Section 360 of Cr.P.C., the Probation of Offenders Act has done away with the distinction on the basis

of age or sex and as such all the offenders whether below 21 or above 21 years of age are equally entitled to

avail the benefit of release, on probation of good conduct or after admonition. Moreover, grant of probation is

not confined to first offenders as in case of Section 360 of Cr.P.C. The Court is competent to release a previous

convict on probation if it thinks it proper to do so having regard to the circumstances of the case including the

character of the offender and nature of the offence. Thus, the scope of the Probation of Offenders Act is farwider than the provisions of Section 360 of the Code of Criminal Procedure. 1973.

The Supreme Court in Chhanni v. State of Uttar Pradesh,44

reiterated that the enforcement of Probation Act in

particular area excludes the applicability of provisions of Section 360 of the Code of Criminal Procedure, 1973

and the scope of Section 4 of the P.O. Act is much wider than Section 360 of Cr.P.C. which relates only to

persons not under the age of 21 years, convicted for offences punishable with fine only or with imprisonment up

to 7 years, and any woman convicted of an offence not punishable with death or imprisonment for life.

Again, Section 360, Cr.P.C. does not provide for any role of Probation Officers in assisting the courts in relation

to supervision and other matters while P.O. Act does provide for it. Further Section 12 of the P.O. Act states

that a person released on probation shall not suffer any disqualification attached to conviction of an offender

under any law but the Cr.P.C. does not contain any such provision. Therefore, by virtue of Section 8(1) of the

General Clauses Act, where the provisions of the P.O. Act have been brought into force, the provisions of

Section 360 of Cr.P.C. will not be applicable.

In the instant case, the appellant was convicted for the offence punishable under Sections 304 Part II, 323/149

and 147, IPC and was sentenced to five years' R.I. On appeal, the Allahabad High Court altered the conviction

to that of simple hurt under Section 323 IPC and the sentence was accordingly reduced to one year. The

appellant raised plea to be given benefit of release on probation under Section 360, Cr.P.C. or Section 4 of P.O

Act. The Supreme Court held that rejection of such application by the High Court was proper as it was made

43 State of Punjab v. Harbansh Lal, 1983 Cri LJ 13 (P & H).44 AIR 2006 SC 3051.


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subsequent to modification of the sentence. The Court, however, directed the High Court to consider the

application considering the peculiar circumstances of the case.

One of the important features of the Probation Act is the provision regarding placement of the offender under

the supervision of a probation officer. But there is no such provision under Section 360 of the Code of Criminal

Procedure. 1973. The power to grant probation under the Probation of Offenders Act is discretionary. However

Section 6 lays down a restriction on the Court not to impose a sentence of imprisonment i on offenders below

21 years of age when found guilty of offences not punishable with imprisonment for life. The Section provides

“When any person under 21 years of age is found guilty of having committed an offence punishable with

imprisonment (but not with life imprisonment), 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 character of the offender, it would not deal with him under Section 3 or Section 4

(release after admonition or release on probation of good conduct) and if the court passes any sentence of

imprisonment on the offender, it would record its reasons for doing so."

It has been held that the sentence of imprisonment imposed on the young offender below 21 years of age

without compliance with the aforesaid provision of Section 6 would be wholly illegal. 45 The Supreme Court in

Gulzar V. State of Madhya Pradesh,46

clarified that benefit of probation under Section 4 of the Probation of

Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973 cannot co-exist at the same time

in same area. The scope of Section 4 of the Probation of Offenders Act is much wider as it applies to any person

found guilty of having committed an offence not punishable with death or imprisonment for life. Again, Section

360, Cr. P.C. does not provide for any role of probation officers in assisting the courts in relation to supervision

and other matters whereas Probation of Offenders Act does contain such a provision.

In the case of Sanjay Dutt v. State of Maharashtra47, the Supreme Court observed that in release of an offender

on probation Section 4 of the Probation of Offenders Act, 1958 has a wider scope than Section 360 of Cr.P.C

The provision of Section 4 of the Act applies to all persons convicted for any offence which is not punishable

with death or life-imprisonment.? Section 360 of Cr.P.C. does not provide for any role for probation officers in

assisting the Courts in relation to Supervision and other matters while the Probation of Offenders Act does

make such a provision.

While Section 12 of the P.O. Act states that a person found guilty of an offence and dealt with under Section 3

or 4 of the Act shall not suffer disqualification, if any, attached to the conviction of an offence under any law,

Section 360 of Cr.P.C. does not contain any parallel provision. The two statutes with such significant

45 Jai Gopal v. State, 1975 Cri. L.J. 921 (P. & H.).46AIR 2008 SC 383.47 Sanjay Dutt v. State of Maharashtra, AIR 2013 SC 2687.


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differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to

anamolous results.

In the instant case the accused was alleged to have supplied arms to co-accused and conspired to commit bomb

blasts. The accused confessed co-accused's involvement but possession of weapon was, however, found to be

for his personal safety and not for terrorist activities. He was, therefore, convicted only under the Arms Act,

1959 or possessing lethal weapons and not for terrorism under TADA. His sentence of imprisonment was

reduced from 6 to 5years. Considering the circumstances and nature of offence, the Supreme Court dismissed

his petition for release on probation and his sentence of 5 years imprisonment was maintained.

6. No Benefit of Probation in Sexual Offences

The benefit of release on probation is specifically denied to cases involving sex perversity. Thus, disposing of

an appeal48

involving an offence under Section 377, I.P.C., and The Supreme Court observed that having regard

to the gravity and nature of the unnatural offence which involved sex perversity, the High Court was, right indisallowing the benefit of probation to the accused although he had no previous conviction against him. The

sentence of accused was therefore, upheld but modified and reduced to six months instead of three years.

The Supreme Court took a strict view of the case involving sex-perversity and refused to allow the benefit of

release on probation to the accused in Smt. Devki v. State of Haryana.49

In this case, the petitioner was found

guilty of abducting a teenage girl of 17 years and forcing her to sexual submission with commercial object and

was convicted and sentenced by the trial court for three years' imprisonment. The sentence was confirmed by

the High Court. On appeal, the Supreme Court refused to allow the benefit of probation to the accused keepingin view the moral turpitude and heinousness of the offence.

Again, in Krishna Chandra v. Harbans Singh,50

the accused, an educated young man was found guilty of having

committed house-trespass in his neighbour's house and committed rape on the said neighbour's wife. The Court

held that the offender cannot be admitted to the benefit of probation keeping in view the nature of the offence

and depravity of the offender.

Though the Supreme Court in the case of State of Himachal v. Dharam Pal,51 did not interfere with the order of

the High Court allowing the benefit of probation to the accused who was found guilty for offence under

Sections 376 of I.P.C. for attempt to commit rape, but at the same time did not approve the reasoning given by

the High Court. The Apex Court held as under "The offence of an attempt to commit rape is a serious offence,

as ultimately if translated into the act, leads to an assault on the most valuable possession of a woman i.e

48 (1982) 3 SCC 9.

49 AIR 1979 SC 1948.50 (1967) Raj LW 101.51 (2004) 9 SCC 681 (682).


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imprisonment with a fine of Rs. 1000/-. Dismissing the appeal for release on probation, the Apex Court

observed that "the appellant had committed a heinous crime and with the social conditions prevailing in the

society, the modesty of a woman has to be strongly guarded and as the appellant behaved like a roadside

Romeo, it was not a fit case where benefit of the Probation of Offenders Act. 1958 should be given to the

appellant." The Supreme Court in its earlier judgment in Karamjit Singh v. Punjab55

, and Om Prakash v. State

of Haryana,

56

held that a relief under the Protection of Offenders Act should be granted only in the offenceswhich were not of a very grave nature or where mens rea is absent.

7. No Probation for Convicted Corrupt Persons:

In the case of N. Bhargavan Pillar' (dead) by L.R's and Another v. State of Kerala.57

the Apex Court ruled that

the benefit of release on probation of good conduct cannot be extended to an accused who is charged of

misappropriation of property and corruption under Sections 409, IPC read with Section 5(2 ) of the Prevention

of Corruption Act, 1988. In the instant case, the accused was working as Junior Manager on deputation in State

Civil Supplies Corporation and the stock in the godown in his charge was found short by the vigilance

department after due enquiry in the case. Meanwhile the accused retired from service. He undertook to remit the

value of shortage and deposited Rs. 50,000/- as part-payment thereof. Since charges were proved against the

accused, he was sentenced to undergo RI for two years and to pay a fine of rupees one lakh with a default

stipulation of six months imprisonment. Since the accused died during pendency of the appeal, his legal

representatives were impleaded for the payment of fine. The Court held that in view of the specific bar under

Section 18 of the Probation of Offenders Act, application of the Act is clearly ruled out in cases of corruption

covered under Section 50) of the Prevention of :corruption Act, 1988. The appeal was therefore, dismissed.

The Supreme Court in State through Supdt. of Police, New Delhi v . Ratan Lal Arora,58

reiterated that the

benefit of release on probation under Section 360 Cr.P.C. and Probation of Offender's Act, 1958 cannot he

extended to an accused who convicted for an offence under section 13(2) of the Prevention of Corruption

Act,1988. The Court clarified that so far application of Section 360, Cr.P.C. is concerned. it cannot be invoked

where the Probation of Offenders Act, 1958 has been enforced and since the Act was already been in force in

Delhi, this section had no application. The order of the High Court of Delhi in extending the benefit of

probation under Section 360, Cr.P.C. was therefore, illegal. The Apex Court further noted that Sections 7 and

13 of the Prevention of Corruption Act, 1988 (49 of 1988) do not empower the Court to show any leniency in

imposition of sentence below the minimum stipulated. Therefore, order of the High Court granting benefit of

probation to the accused was liable to be set aside.

55 (2009) 7 SCC 477.

56 2003 SCC (Cri) 799 see also Manjappa v. State of Karnataka, (2007) 6 SCC 231.57 AIR 2004 SC 2317.58 AIR 2004 SC 2364.


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Probation: International Perspective

Probation in U.S.A.

It is generally said that great ideas often have modest beginning. This is true with the origin of probation as

well. In America John Augustus, a shoe-maker of Boston in 1841 volunteered to stand bail for a person charged

with drunkenness in a local court. The defendant showed signs of reform. The Judge ordered a. nominal fineand released the offender. Fascinated by this incident, John Augustus started standing bail for more and more

offenders and took upon himself the duty of helping and supervising them during the period of bail

Subsequently, he helped delinquent women and children also in their rehabilitation. Thus, he saved over two

thousand persons from the rigors of imprisonment. It is from here that the system of probation began.

John Augustus, was, however, cautious in selecting offenders to be accepted under his charge. He picked up

only those delinquents and accepted them as apprentices who were not totally depraved but showed signs of

reformation. He arranged to send them to school and provided them with some honest employment and lodging.

He maintained an up-to-date record of all the cases he had handled. This provided a blue-print for modern

probation system. Later, Father Cook of Boston also took' keen interest in the rehabilitation of young offenders

He drew attention of the courts to the fact that these offenders were mostly the victims of their circumstances

and corrigible if placed under proper supervision. He associated himself with the criminal, courts of Boston to

advise the Judges in matters of juvenile trials.

All States accepted probation for rehabilitation of their delinquents: Under the American probation law, the

benefit of release on probation does not extend to following offences, —

(1) crimes of violence:

(2) crimes involving use of deadly weapons:

(3) sexual offences',

(4) crimes against the Government or treason;

(5) offences for which specific mandatory punishment is provided: and

(6) Recidivists.

Probation in U.K.

In U.K., the system of probation received statutory recognition in 1907 with the enactment of Probation of

Offenders Act in that year. At Birmingham, however, a separate court for the trial of teenage criminals was

established earlier in 1905. The Probation of Offenders Act, 1907 provided that an offender could be discharged

on probation either after certain sentence being imposed on him or even before the imposition of the sentence.

His release on probation could either be absolute or conditional, depending on his antecedents, character, age,

physical and mental condition and the circumstances which prompted him to commit the offence. Probation


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Officers were separately appointed for adults and children.59

The Act was amended in 1908 and again in 1914

With the enactment of the Criminal Justice Act 1948, probation was extended throughout England60

as a

measure of correctional method of treatment. The entire country is divided into a number of probation areas for

this purposes each having a fixed number of probation officers to help and advise the courts. Although

probation for women was introduced in England at a much later stage than for adult males, but it has yielded

wonderful results so far as rehabilitation of female offenders is concerned.

The Brooklyn Plan which recommended deferred prosecution for delinquents provided that a juvenile offender

charged with an offence is to be admitted to probation without being convicted. Probation of offenders has been

considered as an effective method of easing pressure on prisons. The Courts are provided with an improved

range of non-custodial alternatives to avoid unnecessary incarceration of offenders. The English Criminal

Justice Act, 1982, however, suggested reorganization of Probation Committees for the purpose of redressing,

the situation created by House of Lord's decision in Cullen v. Rogers.61 The opinion of House of Lords' that

there was no power to include in a probation order a requirement that the probationer should attend a day-centrecaused considerable alarm. There are at present hundreds of such centers operating in Britain. The system of

probation, supervision acid conditional release on license is now practiced as an effective after-care

programmed for treatment and rehabilitation of offenders in United Kingdom.

Probation in European Countries

Probation as a measure of treatment of delinquents is practiced in several other countries of the world in

different forms. It is being extensively used as an effective after-care remedy for the treatment of juvenile

offenders. In France, Germany and Russia, probation has been adopted as a measure of social defence. In

Austria, probationer remedies are mandatory for offenders under eighteen years of age. Greece accepted

probation as a correctional measure in 1951. Similar system is adopted in Ireland, Israel, Italy, Switzerland

Netherland, and other countries of the European Union.

Probation in Sweden

Sweden is internationally known for its progressive penal philosophy and initiative in the correctional field

Only twenty per cent of the total number of offenders are sent to prison while the remaining 80 per cent are

subjected to correctional treatment method such as probation, parole, half-way houses, work centers etc. Even

the cases of those who are sent to prison are constantly reviewed so that they can be transferred to non-

institutional service as soon as possible, The supervision of offenders under probation is entrusted to the

59 Section 3 of the English Probation of Offenders Act, 1907.

60 Section 56 (a) of this Act enables the British Prison Commissioner to apply a system of release on licence to persons who were

below 18 years of age at the time of commencement of the sentence.61 (1982) 1 WLR 729.


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"Commission of Trust" consisting of volunteers who seek advice from probation officer. Efforts are also being

made to intensify treatment and supervisory services through probation in non-institutional sector.

Probation System in Japan

Progressive treatment system for offenders has found statutory recognition in the administration of criminal

justice in Japan. The Japanese Code of Criminal Procedure, 1922 expressly stipulated the discretionary power

of the public prosecutors in matters of suspension of prosecution and execution of sentence. The offenders,

particularly the juvenile delinquents, are placed under probationary supervision. The system of granting

probationary supervision to those who are granted suspension of the execution of sentence was fully introduced

in Japan in 1955. Almost twenty per cent offenders are allowed probation under supervision while eighty per

cent are given probation without supervision. There is a network of probation supervision officers to look after

the probationers.

Probation in China

Criminals not only learn crime techniques during short-term imprisonment but also are stigmatized by society

once they are released. In order to prevent the adverse effects of criminal detention and short-term

imprisonment on criminal offenders, many jurisdictions, China included, adopt probation as an alternative to

implementing short-term punishment.62

Chinese Criminal Code article 72 states that “probation may be granted to a criminal sentenced to criminal

detention or to fixed-term imprisonment of not more than three years if, according to the circumstances of his

crime and his demonstration of repentance, imposing probation will not result in further harm to society.”63

The prerequisite for probation, according to Chinese criminal law, is that an offender, who should be sentenced

to criminal detention or no more than three years of imprisonment shows remorse and, when released, would

not harm society. In such cases, the judge suspends the deserved punishment in favor of probation. The

deserved punishment is implemented if offenders on probation commit further criminal acts. Similarly, the

probation is canceled if offenders have on record other crimes that were not adjudicated in previous court

proceedings or have committed any of the acts prescribed by police warrant. Although the decision to

62 Public surveillance is implemented outside the imprisonment institutions and executed by public security organs. Its term shall not

be less than three months and not more than two years. Public surveillance is somewhat similar to probation in implementation because both of them occur outside prison. However, public surveillance is a type of punishment, whereas probation is a method o

implementing short-term incarceration.63 In the English version of Chinese criminal law, “probation” in article 72 is translated as “suspension of punishment.”


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implement probation is part of the judge’s process of punishment measurement, probation itself is a method of

implementing punishment.64

A. Statutory Eligibility

Articles 63 to 65 of this law elaborated conditions of applying and canceling probation, and regulated

conditional release of an offender after conviction. The law further demanded that the convicted should have a

fixed residence and a job, and should be in the custody of relatives. If the convicted lost his residence and his

employment, the probation would be canceled.65

B. The Nature of Chinese Probation

The structure of probation may be perceived in two ways — either as the suspension of the declaration of a crime

or as the suspension of the execution of incarceration as a punishment. With the former, called diversion in

some jurisdictions, court proceedings are stopped and the offender is placed under a probation officer’s

supervision. The latter type refers to the suspension of punishment: An offender is first convicted and then

placed under a probation officer’s supervision for correction, with supplementary conditions, for a certain

period of time. Chinese criminal law supports the latter type of probation, so Chinese probation occurs after the

offender has been convicted.66

Probation: The Probation of Offenders Act, 1958

The Probation of Offenders Ace (Act No. 28 of 1958) contains elaborate provisions relating to probation of

offenders, which are made applicable throughout the country. The Act provides four different modes of dealing

with youthful and other offenders in lieu of sentence, subject to certain conditions. These include : —

(1) release after admonition:

(2) release on entering a bond on probation of good conduct' with or without supervision, and on payment by

the offender the compensation and costs to the victim if so ordered, the courts being empowered to vary the

conditions of the bond and to sentence and impose a fine if he failed to observe the conditions of the bond:

(3) persons under twenty-one years of age are not to be sentenced to imprisonment unless the court calls for o

report from the probation officer or records reasons to the contrary in writing67

: and

64 For example, Mingxuan Gao and Kechang Ma explore probation in the system of punishment measurement. See Criminal Law 523(China Legal Publishing House 2004). Some argue for implementing probation in the system of punishment. See Kechang Ma

Punishment 578 (China Wuhan University Press 2006).65 Federal Sentencing Reporter, Vol. 22, No. 4, pp. 288 – 29366 Ibid.67 Section 6.


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(4) the person released on probation does not suffer a disqualification attached to a conviction under any other

law.68

It must he stated that the provisions of the Probation of Offenders Act are not confined to juveniles alone, but

extend to adults also. Again, provisions of the Act are not only confined to offences committed under the Indian

Penal Code but they extend to offences under other special laws such as the Prevention of Corruption Act,

1947; the Prevention of Food Adulteration Act. 1954; the Customs Act, 1962: the Prevention of Black

Marketing & Maintenance of Supplies of Essential Commodities Act, 1980: the Conservation of Foreign

Exchange & Prevention of Smuggling Activities Act, 1974, Narcotic Drugs & Psychotropic Substances, Act

1985 etc.

Section 11 of the Probation of Offenders Act, 1958 widens the scope of probation by adding an enabling

provision regarding the competence of the Courts to make order under the Act in appeal and revision and

powers of the appellate and revisional courts in this regard. The higher Courts have been empowered to grant

probation in appropriate cases, which was denied to the accused by the lower court. They may also cancel

probation granted by the trial court, where it is expedient in order to prevent the misuse of probation.69

As to the release on probation, the Supreme Court in its decision in Ramamurthy v. State of

Karnataka.70

observed that it really results in suspension of sentence, as the person released on probation is

required to execute a bond under the provisions of the Probation of Offenders Act, 1958, requiring maintenance

of good conduct during the probationary period and failure to do so, finds the person concerned in prison again.

The Act contains provision of varying conditions of probation and also lays down the procedure to be followed

in case of the offenders failing to observe those conditions.71

Procedure

The appropriate stage at which probation order may be made by a court is at the time of pronouncement of

judgment. The Judge may make such an order straightway without calling for a report72

from the probation

officer or he may prefer to call for a report. However, it is always advisable to call for a report from the

Probation officer because at times, material available on record in course of trial is hardly sufficient for the

presiding Judge to make up his mind on the point whether the accused should be admitted to the benefit of

release on probation or not. The court must record a clear finding about the age of the offender after weighing

the necessary evidence.

68 Section 12.69 Mohd. Aziz Mohd. Nasir v. State of Maharashtra, 1976 SCC (Cri) 164.70 (1997) 2 SCC 642.71

Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 at p. 65472 Mohd. Aziz. Mohd Nasir v. State of Maharashtra, 1976 SCC (Cri)164.


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With a view to avoiding delay in the disposal of the case, it would be proper for the court to obtain the

probation report before the trial is completed. In warrant cases, the probation officer is directed to prepare

probation report of the offender right at the time the 'charge' is framed.

The Supreme Court in Municipal Corporation, Delhi v. State of Delhi and another 73

held that the High Court

before extending the benefit of Probation of Offenders Act to the accused did not call for a report from the

authorities to check upon the conduct of the accused as required by Section 4 of Probation of Offenders Act

therefore, his release on probation without such a report is wholly illegal. Moreover, the accused had also

concealed the fact that he was convicted on earlier occasion as well.

In the instant case, the accused was a builder who had committed large scale irregularities and unauthorised

construction of eleven shops at ground floor in Delhi and was convicted under Sections 332 and 461 of the

Delhi Municipal Act for six months and a fine of Rs. 5,000/-. His appeal was dismissed by the High Court

Then he filed a criminal revision wherein he stated that he did not wish to challenge the conviction on merits

but prayed for benefit of release on probation as he had already faced trial for 12 long years in lower courts and

also remained in jail for three days. The high Court held that the accused deserved to be released on probation

in view of the agony of trial lasting for 12 years suffered by him. The Delhi Municipal Corporation (DMC)

went in appeal against this order of the High Court to the Supreme Court.

The Apex Court referred to its earlier decision in Ram Singh v. State of Haryana,74

wherein it was held that

Sections 4 and 6 of Probation of Offenders Act indicate the procedure requiring the Court to call for a report

from the probation officer and consider it. As per Section 4(1) of the Act, such report is mandatory.75

The Court

therefore, set aside the order of the High Court and remitted the matter to it for fresh disposal strictly in

accordance with law.

In Bishnu Deo v. State of West Bengal,' the Supreme Court held that provisions of Section 10(6) and 10(7) of

the Immoral Traffic (Prevention) Act, 1956, which were inserted by the SITA (Amendment) Act, 1978

constrain the Court imposing sentence of imprisonment on first female offenders found guilty of having

committed an offence under Section 7 and •Section 8 of the Act unless it records reasons for doi ng so, on the

basis of probation officer's report and other materials which justifies female's imprisonment. After the

enactment of law of the Probation of Offenders Act, 1958, most of the States introduced probation law for their

offenders. Section 18 of the Act, however, provides that nothing in the Act shall affect the provisions of the

under-mentioned Act : —

73 AIR 2005 SC 2658.74 (1971) 3 SCC 914.75 R. Mahalingam v. G. Padmavathi and another , 1979 Cr.L.J. (NOC) 20 (Mad.).


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(1) The Reformatory School Act, (Sec. 31).

(2) The existing State laws relating to juvenile delinquents and Borstal institutions.

(3) The provisions of the Immoral Traffic (Prevention) Act, 1956; and

(4) The Prevention of Corruption Act, 1988 [Sec. 5 (2)].

Section 14(a) of the Probation of Offenders Act contains a mandatory provision. that whenever the court, in its

opinion considers it reasonable to admit an adult offender above the age of 21 years to the benefit of release on

probation, it must first secure a pre-sentence report from the Probation Officer.76

This report may not be necessary in case the offender is below twenty-one years of age, but if at all the report is

submitted by the probation officer, it must be taken into consideration. The pre-sentence report prepared by the

probation officer usually contains the details about the antecedents of the offender, his life history, family

background, marital status, educational standard, social and economic background and the circumstances whichled him to commit the offence. The report is to be treated as a confidential document' by the court. After

receiving a favorable report from the probation officer about the prospective probationer, the presiding Judge

determines the exact period of probation for the delinquent. The period of probation may vary from offender to

offender depending on, his potentiality for readjustment to normal life in society. Thus. for some probationers a

period of six months or so may suffice while for others even a period of a year or two may be insufficient.

It has been generally accepted that keeping the delinquent under supervision for an indeterminate period until

his rehabilitation, seems to be the best policy in this regard. In India, the maximum limit for the release of anoffender on probation is three years.

77 The probationer can be set at liberty any time during the period of

probation as soon as he is considered fit for release in the opinion of the probation officer. But this provision

has been criticized for two obvious reasons. Firstly, leaving the probationer entirely at the mercy of the

probation officer has its own disadvantages and secondly, it creates resentment among the probationers as they

feel that they are being unduly discriminated by the probation authorities. To obviate these possibilities, some

Countries have prescribed a minimum and a maximum limit during which the probationer is kept under

supervision and he can be discharged any time after he has completed the minimum period.

Removal of Disqualification attached to Conviction

Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and

admitted to the benefit of release on probation under Section 3 or Section 4 of the Act, shall not suffer

76 Ratan/a/ v. State of Punjab, AIR 1965 Sc 444. Secalso Rainji Missar and others v. State 1, AIR 1979 SC 971. of Bihar, AIR 1963

SC 1088 and Suja v. State, AIR 1964 Raj. 72.77 Section 7 of the Probation of Offenders Act, 1958.


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disqualification, if any, attached to the conviction of an offence under such law. It is indeed a salutary provision

which facilitates the rehabilitation of the released probationer. The object of this section is to save the

probationer from various civil disabilities resulting from his conviction. For example, if a person is debarred

from contesting election on account of disqualification, his release on probation will negative this

disqualification and he further, the conviction of an employee simpliciter without result in his automatic

dismissal from service if he has been being released on probation by the sentencing court. This view findssupport in a number of judicial pronouncements of the Supreme Court. However, removal from service or part

of it as a departmental punishment is not an is consequence of conviction on a criminal charge and therefore, the

provisions of Section 12 of the Act relating to the removal of disqualification attaching to conviction are not

attracted in case of removal from it employee who is released on probation. The judicial trend in this regard is

discernible from the cases cited hereunder: —

In Kehar Singh v. Regional Employment Officer, Chandigarh78, the petitioner was convicted for theft under

Section 380 of IPC and was dealt with under Section 4 of the Probation of Offenders Act, 1958. He wasremoved from service consequent to the decision of the Court. On appeal, he was reinstated on the ground that

phraseology of Section 12 of the Probation of Offenders Act is express, explicit and mandatory and seeks to

remove disqualification attaching to conviction in probation cases.

In the case of Divisional Personal Officer, Southern Rly. v. T.H. Challappan 79, the Supreme Court ruled that

Section 12 of the Probation of Offenders Act does not contemplate automatic disqualification of a person

released on probation. This case involved disposal of three appeals by the Supreme Court in all of which points

involved were identical.

The Supreme Court, quoting the phraseology used in Sections 3 and 4(1) of the Probation of Offenders Act held

that conviction is not washed out at all. The order of release on probation is merely a substitution of sentence

imposable by Court. Section 12 therefore, does not afford Immunity against disciplinary proceedings for

misconduct. In deciding the case of Shenker Dass v Union of India.80

the Supreme Court took a liberal view of

the provision of Section 12 of the Probation of Offenders Act, 1958 and ordered the appellant to be reinstated in

service.

In this case, the appellant misappropriated Rs. 500 from the Delhi Milk Service and thus committed breach of

trust. He pleaded guilty of the charge and was convicted under Section 409, IPC by the trial court and released

on probation under Section 4 of the Probation of Offenders Act. As a result of this conviction he was dismissed

from service in April. 1964. The Supreme Court while allowing the appeal observed that in the instant case the

78 AIR 1966 Punj.336.79 AIR 1975 SC 2216.80 AIR 1985 SC 772


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crime was committed under personal misery compounded by the appalling delays of law. The Court further

observed that a Government servant convicted on criminal charge and released on probation cannot be said to

be liable to be dismissed in view of Section 12 of the Probation of Offenders Act which is a beneficial

provision. The Court therefore, set aside the order of the High Court of Delhi and reinstated the appellant in

service.

In leibal Singh v. I.G. Police. Delhi81, the accused a police head-constable was convicted for an offence under

Section 337 of IPC but was given the benefit of the provision of Section 4 of the Probation of Offenders Act,

1958. Consequent to his prosecution, the accused was suspended and subsequently dismissed from service on

the ground of conviction. The Delhi High Court observed that the word. 'disqualification if any, attaching to a

conviction of an offence" used in Section 12 of the Act would not include a person's losing his right or

qualification to remain or to be retained in service. According to the High Court, Section 12 of the Act clearly

saves the convict from suffering such disqualification attaching to his conviction. In respect of his conviction

the accused had the protection of Section 12 and he was saved from suffering any disqualification such as theone which resulted in his dismissal. Similarly, in Rajbir/Raghubir Singh v. State of Haryana. the accused a

Government servant was convicted and placed on probation for good conduct under the Probation of Offenders

Act, 1958. It was held by the Supreme Court that in particular facts of the case, the conviction should not affect

his service.

However, in Union of India v. Bakshi Ram82, the Supreme Court observed that release of offender on probation

does not obliterate stigma of conviction. In the instant case, the accused was dismissed from service in view of

his conviction under Section 10 of the Central Reserve Police Force Act and the court held that he was not

entitled to reinstatement in service upon getting the benefit of probation of good conduct under Section 4 of the

Probation of Offenders Act. 1958. The. Supreme Court, in this case pointed out that Section 12 of the Probation

of Offenders Act clearly directs that the offender "shall not suffer disqualification, if any, attaching to a

conviction of an offence under such law". But the section does not preclude the Department from taking action

for misconduct

Documents

Probation of Offenders Act