A Project on Code of Criminal Procedure

Concept of Probation

Jamia Millia Islamia

Faculty of Law

Submitted To:
Dr. Asad Malik

Submitted By:-
Manvendra Pratap Singh
9th Sem
Section ‘A’
TABLE OF CONTENTS

Table Of Cases

Acknowledgement

Table Of Content

Introduction

Post Conviction Order In Lieu Of Punishment

Historical Background Of Probation In India

Probation

 Meaning Of Probation
 Probation: An Alternative Punishment Vis-A-Vis Reformative Theory
 Importance Of Probation

Probation

 Meaning Of Probation
 Probation: An Alternative Punishment Vis-A-Vis Reformative Theory
 Importance Of Probation
 Object Of Probation
 Probation Involves:
 Consideration Taken Into Account For Probation
 Offences In Which Benefit Of Probation Can And Cannot Be Granted

Probation Of Offenders Act, 1958

 Objects, Aims And Reasons For The Enactment Of The Probation Of Offenders Act,
1958.
 Case Laws
 Powers Of The Court Regarding Release Of Certain Offenders.
 Release After Admonishing(Section 3 Of Probation Of Offenders Act, 1958)
 Release On Probation(Section 4 Of The Probation Of Offenders Act, 1958)
 Admonition V. Probation
 Meaning Of The Character Of The Accused
 Power Is Discretionary
 Conditions:
 Scope

2
  Procedure When The Offender Breaches The Conditions Under Sub-Section 4 Of
Section 4 Of Probation Of Offenders Act, 1958.
 Power Of Court To Require Released Offenders To Pay Compensation And Costs
(Section 5 Of The Probation Of Offenders Act, 1958)
 Restrictions On Imprisonment Of Offenders Under Twenty-One Years Of Age
(Section 6 Of The Probation Of Offenders Act, 1958)
 Report Of Probation Officer To Be Confidential (Section 7 Of The Probation Of
Offenders Act, 1958)
 Variation Of Conditions Of Probation (Section 8 Of The Probation Of Offenders
Act, 1958)
 Procedure In Case Of Offender Failing To Observe Conditions Of Bond (Section
9 Of The Probation Of Offenders Act, 1958)
 Procedure For Probation Service
 Removal Of Disqualification Attaching To Conviction (Section 12 Of The
Probation Of Offenders Act, 1958)
 Probation Officer (Section 13 Of The Probation Of Offenders Act, 1958)
 Duties Of Probation Officers (Section 14 Of The Probation Of Offenders Act,
1958)

Probation Under Code Of Criminal Procedure Act, 1973

 Order To Release On Probation Of Good Conduct Or After Admonition (Section 360 Of

Code Of Criminal Procedure Act, 1973)
 Release On Probation Of Good Conduct (Section 360(1))
 First Offenders
 Release After Admonition (Section 360(3))
 Probation Of Good Conduct Or Release After Due Admonition May Be Made By An
Appellate Court (Section 360(4))
 High Court Or The Court Of Session May Set Aside Such Order (Section 360(5))
 Breach Of Recognisances Section 360(8) & Section 360(9)
 Special Reasons To Be Recorded In Certain Cases Where The Court Decides To Pass
Any Sentence On The Offender (Section 361 Of Code Of Criminal Procedure Act, 1973)
 Special Directive In Case Of Non-Punitive Measures

Difference Between Scope Of Probation Under Code Of Criminal Procedure Act, 1973 And The
Probation Of Offenders Act, 1958

 Scope Of Section 4 Of Probation Of Offenders Act Is Far More Wider Than The
Provisions Of Section 360 Of The Code Of Criminal Procedure, 1973.

3
 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 Probation Of Offenders
Act Does Provide For It.
 Power Under The Probation Of Offenders Act Can Be Exercised By Any Magistrate
Whereas Such Power Under Section 360 Cr. P.C. Is Restricted To The Judicial
Magistrate First Class
 Unlike Section 360 Cr. P.C., There Is Provision For Placement Of The Offender Under
The Supervision Of A Probation Officer Under The Probation Act
 Scope Of Section 6 Of Probation Of Offenders Act Is Limited In Comparison To Section
361 Of The Code Of Criminal Procedure

4
TABLE OF CASES

1. Ajahar Ali v.. State of West Bengal SLP (CRL.) No. 2817 of 2013
2. Arvind Mohan Sinha v. Mulya Kumar Biswas 1974 Cri LJ 391
3. Chhanni v. State of Uttar Pradesh (2006) 5 SCC 396
4. Dasappa v. State of Mysore AIR 1965 Mys 224
5. Divisional Personal Officer v. T.R.Challapan AIR 1975 SC2216
6. Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443
7. Gulzar v. State of Madhya Pradesh (2008) 5 SCC 468
8. Gurbachan Singh v. State of Punjab1980 Cri LJ 417
9. In re: Salem Govindappa Chetty 1970 Cr. L.J. (A.P.) 47
10. Isherdas v. State of Punjab 1977 SC 56 (7)
11. Jai Narayan v. Municipal Corporation, Delhi 1972 2 SCC 637
12. Jugal Kishore Prasad vs State of Bihar 1972 AIR 2522
13. Masarullah v. State Of Tamil Nadu AIR 1983 SC 654
14. Mohamad Aziz Mohamed Nasir vs State Of Maharashtra AIR 1976 SC 730
15. Musa Khan v. State of Maharashtra (1976) Cri. LJ 1987 SC
16. Nilgiris Bar Association v. T.K Mahalingam AIR 1998SC398
17. Pushkar Raj v. State of Punjab 1981 Cri LJ 1910
18. Pyarali K. Tejani vs Mahadeo Ramchandra Dange 1974 AIR 228
19. Rajender Datt v. The State Of Haryana on 31 August, 1992 1993 CriLJ 1025
20. Rajeswari Prasad v. Ram Babu Gupta AIR 1961 Patna 19
21. Rajeswari Prasad v. Ram Babu Gupta AIR 1961 Patna 19
22. Ramesh Dass v. Raghunath & others [2008] INSC 189
23. Ramjani v. State of Rajasthan1983 (1) Cri. LJ 1063
24.
Ranjit Singh v. State Of Punjab on 23 April, 2009( Criminal Revision No. 1544 of 2004)
25. Ratan Lal v. State of Punjab (1965) SC 444
26. Sanjay Dutt v. State Of Maharashtra on 21 March(2013 CRIMINAL APPEAL NO. 1060
of 2007)
27. Santa Singh v. State of Punjab AIR 1975 SC2216
28. State of Karnataka v. Mohamed Nazeer 2003 (SCC(Cri)610
29. Uttam Singh v. Delhi Administration AIR 1974 SC 1230

5
ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got that all along the completion of my
project work. Whatever I have done is only due to such guidance and assistance and I would not
forget to thank them.

I owe my profound gratitude to our Code of Criminal Procedure Course, teacher, Dr. Asad
Malik, who guided me all along, till the completion of my project by providing all necessary
information for the project report.

I am thankful and fortunate enough to get constant encouragement, support and guidance from
all teaching staff of Faculty of Law, Jamia Millia Islamia which helped me in successfully
completing my project work.

I would also not forget to remember my friends for their unlisted encouragement and more
over for their timely support and guidance till the completion of my project.

6
INTRODUCTION

It is a well known fact that reformation has replaced retribution in the modern state. George
Bernard Shaw said, “If you are to punish a man retributively, you must injure him. If you are to
reform him, you must improve him and men are not improved by injuries.” An accused person
should be given a chance of reformation which he would lose in case he is incarcerated in prison
and associates with hardened criminals.

The object of Criminal Law is more to reform the offender than to punish him. Instead of
keeping an accused with hardened criminals in a prison, Court can order personal freedom on
promise of good behavior, and can also order a period of supervision over an offender. This is
what we generally call as ‘Probation’. Simply, it can be understood as ‘ the conditional release of
an offender on the promise of good behavior’.

Way back in 1923, the Law Commission of India submitted a report recommending liberal
punishments to persons under 21 years of age and women convicted of offences. This report
through years of delays and lapses became the Probation of Offenders Act, 1958. It has 19
Sections. The central statute covers a wider range of offenses than the State laws that along with
Section 360 of the CrPC formed the Probation Law in India before the 1958 Act.

Section 360 of the CrPC is built on similar lines where the first time offenders are released on
probation of good conduct or after due admonition on certain conditions.

7
POST CONVICTION ORDER IN LIEU OF PUNISHMENT

As the Supreme Court observed in the case of Ediga Anamma v. State of Andhra Pradesh1,
‘guilt once established, the punitive dilemma begins’. The Code of Criminal Procedure provides
that in every trial, when the accused is found guilty and convicted, the court shall proceed to pass
sentence on him2. This mandatory rule has two exceptions of which one is rather technical or
formal in nature. The exceptions are:

(1) In trials of warrant cases and summon cases, whenever a magistrate is of opinion, after
hearing the evidence, that the accused is guilty and that he ought to receive punishment
different in kind form, or more severe than, that which such magistrate is empowered to
inflict, he may record the opinion and submit his proceedings to the Chief Judicial
Magistrate. The Chief Judicial Magistrate than shall proceed to pass such judgment,
sentence or order in the case as he thinks fit.3 This is not really an exception because the
provision enables the Magistrate to get the post-conviction orders passed by a court of
wider competence and authority.

(2) In cases where the Court considers it desirable to proceed in accordance with the
provisions of Section 360 the Court may, having regard to the age, character, antecedents
or physical or mental condition of the offender and to the circumstances in which the
offence was committed, instead of the sentencing the accused person to any punishment,
release him after admonition or on probation of good conduct. \

According to Section 19 of the Probation of Offenders Act, 1958(read with Section 8(1) of
General Clauses Act, 1897) Section 360 of the Code would cease to apply to the States or part
thereof in which that Act is brought into force, as held in Pushkar Raj v. State of Punjab4.

The Probation of Offenders Act much wider in its sweep with its special emphasis on the
reformation and rehabilitation of the offenders. Notwithstanding anything contained in any other
law for the time being in force, the Act enables the court to release offenders after admonition or
on probation of good conduct under certain circumstances.

In Gurbachan Singh v. State of Punjab5 It may be noted that in view of Ss 18 and 19 of the
probation of Offenders Act, 1958 neither the provision of that Act, nor of S. 360 of Code would
apply to the cases under S. 5(2) of the Prevention of Corruption Act, 1947.

1
(1974) 4 SCC 443
2
Ss 235(2), 248(2) and 255(2) of the Code of Criminal Procedure
3
Section 325 of Code of Criminal Procedure
4
1981 Cri LJ 1910
5
1980 Cri LJ 417

8
Thus when the Court finds an accused guilty it has got the discretion either to punish the
offender or to release him after admonition or on probation of good conduct under S. 360 or
under Ss. 3 and 4 of the Probation of Offenders Act. The question is what consideration should
weigh with the court and how the Court is to exercise the discretion. The discretion, to an extent,
is canalized by the provisions of S. 360, the Probation of Offenders Act and S. 361.

9
HISTORICAL BACKGROUND OF PROBATION IN INDIA

In India, probation received statutory recognition for the first time in 1898 through Section 562
of the Code of Criminal Procedure, 1898. 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.

The Central Government appointed a committee in 1916 to consider the provision of the
Criminal Procedure Code. Particularly, it suggested revision of Section 562 and extension of its
provisions to other cases also.

The scope of probation law was extended further by the legislation 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 first offenders were
classified under two categories, namely:—

(i) Male adult offenders over twenty-one years of age; and

(ii) Young male adult offenders under twenty-one years of age and female offenders of any age.

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 Homes, Rescue Homes, Certified Schools and Industrial Schools
were established in Bombay, Madras and Calcutta.

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. 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 by the offender’s delinquent act. The probation laws
enacted by Provinces, however, lacked uniformity.

10
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 United Nations Technical Expert on Correctional
Services.

This Conference was a milestone in the progress of probation law in India. The noted American
criminologist, Dr. Walter Reckless addressed the Conference as a U.N. technical expert and gave
valuable suggestions on Prison Administration in India. Consequently, All India Jail Manual
Committee was formed to review the working of 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 without being subjected to deleterious effects of
prison life.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation
officers to be appointed who would be responsible to give a pre-sentence report to the magistrate
and also supervise the accused during the period of his probation. Both the Act and S.360 of the
Code exclude the application of the Code where the Act is applied. The Code also gives way to
state legislation wherever they have been enacted.

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PROBATION

 Meaning of probation

The term Probation is derived from the Latin word ‘Probare’, which means to test or to prove. It
is a treatment device, developed as a non-custodial alternative which is used by the magistracy
where guilt is established but it is considered that imposing of a prison sentence would do no
good.

Probation is based on the idea that we need to eliminate crime and eliminating criminals is not
the way to do it. Probation provides for opportunities and guidance to young and first time
offenders instead of committing them to jails. The idea behind such treatment is that, normally,
human beings do not resort to crime unless they are forced due exceptional circumstances. If we
want to reduce crime, we should make sure that chance criminals are given an opportunity to get
reformed instead of turning into hardened criminals.

 Probation: An Alternative Punishment vis-a-vis Reformative Theory

Reformative theory is one of the theory of punishment which has an objective to reform the
behavior of the criminal by replacing punishment through some alternatives. As per modern
criminal jurisprudence, nobody is born as criminal; the criminal attitude of an individual is due to
a mixture of social, economic and environmental conditions. In recent times, the emphasis is on
the reformation and rehabilitation of the offender as a self-sufficient and useful member of the
society, without subjecting him to the deleterious effects of jail life.

This relates to the measure of probation, which may be used by the courts as an alternative and is
increasingly being used. If we follow the old age concept that relates to the problem of
dependency of the offender, he/she may not be able to adjust with the society. Instead of this,
there must be some reformative treatment measures in terms of guidance and rehabilitation for
the prisoners. Some of the philosophers, who were in favor of the reformative theory of
punishment, are Jermy Bentham, H.L.A. Hart, A.C. Ewing, etc.

Thus, Probation provides for reformative treatment measures in terms of guidance and
rehabilitation for the prisoners.

It must, however, be kept in mind that reformation does not always work. Some crimes are so
abhorrent and some criminals are so unrepentant that it is best to punish them so that the price of

12
committing the crime keeps them from committing it again. For some of them, there is no hope
for reform, and it is best to protect the society from them by locking them away for life.

 Importance Of Probation

While it is true that punishment gives a sense of satisfaction to the victims and to the society in
general, it has been observed that in most of the cases punishment, specially imprisonment, does
not actually reform the criminal. In most cases, once a person comes out of a prison, he gets back
to his old ways of being in conflict with the law. This is true even more with young criminals,
whose minds are not fully mature. They get influenced in the wrong way because of their
interaction with hardened criminals in jails. Imprisonment decreases his capacity to readjust to
the normal society after the release and association with professional delinquents often has
undesired effects.

According to the United Nations, Department of Social Affairs, The release of the offenders on
probation is a treatment device prescribed by the court for the persons convicted of offences
against the law, during which the probationer lives in the community and regulates his own life
under conditions imposed by the court or other constituted authority, and is subject to the
supervision by a probation officer. The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary help and guidance to the
probationer in his rehabilitation and at the same time the threat of being subjected to unexhausted
sentence acts as a sufficient deterrent to keep him away from criminality. The United Nations
recommends the adoption and extension of the probation system by all the countries as a major
instrument of policy in the field of prevention of crime and the treatment of the offenders.

This is the aim behind Probation of Offender's Act, 1958. It allows the court to take into account
the nature of the crime, the age of the offender, and the circumstances of the crime, and instead
of committing the offender to jail, release him under supervision and guidance of a probation
officer. This ensures that the offender is integrated back into the society. The act is based on the
reformatory approach, which is adopted in many countries of the world. For example, in USA,
almost 60% of the offenders are released on probation.

 Object of Probation

The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus
and others6 –

“S. 562 is intended to be used to prevent young persons from being committed to jail, where they
may associate with hardened criminals, who may lead them further along the path of crime, and
to help even men of mature years who for the first time may have committed crimes through

6
AIR 1941 Mad 720

13
ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be
expected to make good citizens. In such cases, a term of imprisonment may have the very
opposite effect to that for which it was intended. Such persons would be sufficiently punished by
the shame of having committed a crime and by the mental agony and disgrace that a trial in a
criminal court involve”.

 Probation involves:

 Withholding of imprisonment of convicted offender

 Conditional release
 Permission to live in the community
 Supervision of an agent of the Court

 Consideration taken into account for Probation

 Circumstances of the case

 Nature of crime
 Age of accused
 Character of accused

 Offences in which benefit of probation can and cannot be granted

Section 4, as described above, gives a general direction to the court for deciding when and when
not to give the benefit of probation. The words, "if the court is of the opinion" basically give
discretionary power to the court in this respect. Section 6, however, tries to impress upon the
court to lean in favor of giving benefit in cases of young and immature adults. When any person
under twenty-one years of age is found guilty of having committed an offence punishable with
imprisonment (but not with imprisonment for life), the court by which the person is found guilty
shall not sentence him to imprisonment unless it is satisfied that, having regard to the
circumstances of the case including the nature of the offence and the character of the offender, it
would not be desirable to deal with him under section 3 or section 4, and if the court passes any
sentence of imprisonment on the offender, it shall record its reasons for doing so. For the purpose
of satisfying itself whether it would not be desirable to deal under section 3 or section 4, the
court shall call for a report from the probation officer and consider the report, if any, and any
other information available to it relating to the character and physical and mental condition of the
offender.

14
Thus, even though no mathematical rule is given, the general intention of the legislature is to
give the benefit of probation as much as possible. In Jugal Kishore Prasad vs State of Bihar7
1972, the Supreme Court observed that the object of the Probation of Offenders Act, "is in
accordance with the present trend in the field of penology, according to which efforts should be
made to bring about correction and reformation of the individual offenders and not to resort to
retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and
that a good many crimes are the product of socio-economic milieu."

In absence of a precise formula to determine when and when not the benefit of probation can be
given, we have to look at SC court judgments to understand what kind of offenses are eligible for
this benefit. SC has accepted the applicability of probation for many kinds of offences. For
example, in Isherdas v. State of Punjab8, the Supreme Court held that the Probation of
Offenders Act was applicable to the offenses under the Prevention of Food Adulteration Act,
1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra9 the appellant was below
21 years of age. The appellant was at one time a well known child film actor and won several
awards for acting in films. Subsequently he fell in bad company and took to evil ways. SC held
that even if the point relating to Section 6 is not raised before the High Court, the court was
bound to take notice of the provisions of the section and give its benefit to the applicant. It
further held that Section 6 lays down an injunction not to impose a sentence of imprisonment on
a reason who is under 21 years of' age and if found guilty of having committed an offence
punishable with imprisonment other the that for if unless it is satisfied that it would not be
desirable to deal with him under Section 3 or Section 4. This inhibition on the power of the court
to impose a sentence of imprisonment applies not only at the state of trial but also at the stage of
High Court or any other court when the case comes before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration10, the appellant was of 36 yrs of age and
was caught with 3 sets of playing cards and obscene photographs. SC refused to allow him the
benefit of release on probation having regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and there have been
cases where even minor offenses have not been given the benefit of probation. It can be said that
this benefit is given on case to case basis after looking at the peculiarities of the case. It is not
possible to categorize the offences in this respect.

7
1972 AIR 2522
8
1977 SC 56 (7)
9
AIR 1976 SC 730
10
AIR 1974 SC 1230

15
PROBATION OF OFFENDERS ACT, 1958

 Objects, Aims and Reasons for the enactment of the Probation of Offenders Act,
1958.

The prime object of the Probation of Offenders Act, 1958 is to prevent the conversion of
youthful offenders into obdurate criminals.

The aim of the Act is to provide for the release of offenders on probation or after due admonition
and for matters connected therewith.

The reason for the enactment of the Act is that there are no separate probation laws at all in
several States and even in States where there are probation laws, they are not uniform nor they
adequate to meet the present requirements.

In addition, there has been an increasing emphasis on the reform and rehabilitation of the
offenders as a useful and self-reliant member of society without subjecting him to the deleterious
effects of jail life. Hence, the Government of India proposed to have a Central law on the subject
which should be uniformly applicable to all the States.

It is also aimed to empower the Courts to release an offender after admonition in respect of
certain specified offences. With the emergence of reformative theory of punishment the present
Act has been enacted with a view to provide an offender the opportunity of improving his
conducts so as to be able to live in society. Its aim is the rehabilitation of the offender.

If amateur offender is put in jail along with the criminals, the chances of his being reformed and
made worthy of living in the society are diminished to a great extent.

The Act aims to empower Courts to release on probation in all suitable cases, an offender found
guilty of having committed an offence not punishable with death or imprisonment for life. The
Act also puts restrictions on the imprisonment in respect of offenders under 21 years of age.

The Act provides provisions to remain the offenders under the supervision of probation officers
during the period of probation in order that they may be reformed and become useful members of
society.

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  Case Laws

In Jugal Kishore Prasad v. State of Bihar11, the Supreme Court has stated that the object of the
Probation of Offenders Act, 1958 is to prevent the conversion of youthful offenders into
obdurate criminals as a result of their association with hardened criminals of mature age in case
the youthful offenders are sentenced to undergo imprisonment in jail.

In Arvind Mohan Sinha v. Mulya Kumar Biswas12, it has been observed that the Probation of
Offenders Act, 1958 is a reformative measure and its object is to reclaim amateur offenders who
can be usefully rehabilitated in society. The Act recognizes the importance of environmental
influence in the commission of crimes and prescribes a remedy whereby the offenders can be
reformed and rehabilitated in society.

Musa Khan v. State of Maharashtra13

In this case it was held that Probation of Offenders Act is a social legislation which is meant to
reform juvenile offender, so as to prevent there from hardened criminals by providing them
education and reformative treatment by government.

Jai Narayan v. Municipal Corporation, Delhi14

In this case it was held that there has been an increasing emphasis on reformation and
rehabilitation as useful and self relyimg member of society without subjecting to deleterious
effect of jail life.

Ratan Lal v. State of Punjab15

In this case it was observed that Probation of Offenders Act is a milestone in the progress of
modern liberal train to reform the field of penology. It is the result of recognition of doctrine that
object of criminal law is to more to reform the individual offender than to punish him.

 Powers of the court regarding release of certain offenders.

Depending on the circumstances of the case, a court may release the person in two ways –

(a) release after admonishing the person, which is provided in Section 3; or

(b) release on probation of good conduct, which is provided in Section 4.

Both are explained below.

11
1972 AIR 2522
12
1974 Cri LJ 391
13
(1976) Cri. LJ 1987 SC
14
1972 2 SCC 637
15
(1965) SC 444

17
  Release After Admonishing(Section 3 of Probation of Offenders Act, 1958)

Admonishing means to warn or reprimand. In this mode of release, the court scolds the person,
and in a way, tries to appeal to the good conscious of the person and releases him.

Section 3 says thus:

When any person is found guilty of having committed an offence punishable under Section
379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or
any offence punishable with imprisonment for not more than two years, or with fine, or with
both, under the Indian Penal Code or any other law, and no previous conviction is proved against
him and the court by which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the character of the offender, it
is expedient so to do, then, notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him to any punishment or releasing him on
probation of good conduct under section 4, release him after due admonition

The conditions required to be released under this section are -

1. The offence must be punishable with imprisonment for less than 2 yrs. or with only fine or
with both , or the offence is punishable under any of the Sections 379, 380, 381, 404, and 420 of
Indian Penal Code.

2. The offender does not have any prior convictions.

3. Court by which the person found guilty of offence, must be of the opinion after considering
the circumstances of the case that it is expedient to do so.

4. Court must form opinion on the basis of nature of offence and character of offender.

Note- It is important to note that a person previously released under Section 4 of the Probation of
Offenders Act will be deemed to be as his previously convicted and will not be entitled to be
released under this section

If the above conditions are satisfied, then the court must take into consideration the nature of the
crime and the antecedents and character of the offender and if it thinks suitable, it can release the
offender after warning.

 Release on Probation(Section 4 of the Probation of Offenders Act, 1958)

Section 4 of the act deals with the power of the court to release certain offenders on probation of
good conduct.

1. As per Sub-section 1 of Section 4, if any person is found guilty of having committed an

offence not punishable with death or imprisonment for life and the court by which the

18
 person is found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is expedient to
release him on probation of good conduct, then, notwithstanding anything contained in
any other law for the time being in force, the court may, instead of sentencing him at
once to any punishment, direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon during such period, not
exceeding three years, as the court may direct and in the meantime to keep the peace and
be of good behavior.The section further requires that the offender or his surety has a fixed
place of residence or regular occupation in a place where the court exercises jurisdiction.

2. As per Sub-section 2 of Section 4, before making any such order, the court shall take into
consideration the report, if any, of the probation officer concerned in relation to the case.
However, it is not necessary that the court has to act on probation officers report. It can
also gather information from other source and on its own analysis.

3. Sub-section 3 of this section further provides that the court may also require the offender
to remain under the supervision of a probation officer during certain period, if it thinks
that it is in the interests of the offender and of the public.

4. Sub-section 4 of Section 4 provides that Court can also impose appropriate conditions
which might be required for such supervision. In case the court does specify such
conditional release, it must require the offender has to enter into a bond, with or without
sureties, enumerating the conditions. The conditions may relate to place of residence,
abstention from intoxicants, or any other matter as the court thinks appropriate to ensure
that the crime is not repeated.

5. As per sub-section 5 of Section 4, the court making a supervision order under sub-section
(3) shall explain to the offender the terms and conditions of the order and shall forthwith
furnish one copy of the supervision order to each of the offenders, the sureties, if any, and
the probation officer concerned.

In Ramjani v. State of Rajasthan16, it was held that the non-obstante clause in Section 4 of the
Act is a clear manifestation of the intention of the legislatures that the provisions of the Act
would have effected notwithstanding any other law for the time being in force.

It is a general section under which the benefit is extended to the offenders under 21 years of age
and also offenders who are above 21 years of age. Discretion is exercised by the court while
giving the benefit of probation to the offenders above 21 years of age. No reasons are to be
recorded when the benefit of probation is granted to the offenders above 21 years of age.

16
1983 (1) Cri. LJ 1063

19
Section 4 laid down that the court shall consider the report of the P.O if any. It is not obligatory
on the court to call for and consider the report of the P.O. in terms of section 4(2)

In Divisional Personal Officer v. T.R.Challapan17, it was held that, ‘An order of release on
probation comes into existence only after the accused is found guilty and is convicted of the
offence. Thus the conviction of the accused or the finding of the court that he is guilty cannot be
washed out at all because that is the sine quo non for the order of release on probation of the
offender. The order of release on probation of the offender is merely in substitution of the
sentence to be imposed by the court. This has been made permissible by the c statute with a
humanist point of view in order to reform youthful offenders ad to prevent them from becoming
hardened criminals.’

Masarullah vs State Of Tamil Nadu18

The facts of this case are: appellant Masarullah was convicted for offences under Sections
452 and 397 I.P.C. and was sentenced to suffer imprisonment for 5 years and 7 years
respectively. His appeal to the High Court failed. Hence Special Leave Petition was filed. The
only question which we had to be addressed was whether the accused should be given the benefit
of the Probation of Offenders Act, 1958.

The Supreme Court held that:

“Here is a young man. He is serving. He comes from lower middle class, but respectable family
having an atmosphere of educational culture. In his formative impressionable years, he comes
under the undesirable influence of movie eulogising crime and showing criminal a daring person.
This young man falls a prey and a victim. He emulates his hero of movie. Latent psychopathetic
background lead him astray. Therefore, having regard to nature of offence, the character of
offender and the attendant and surround-ding circumstances as revealed in the report of the
probation officer and being influenced by the modern trend of reclamation of offender rather
than condemnation, we consider this a preeminently fit case to grant the benefit of modern pena
logical approach as enacted in the Act.

We should, therefore, like to suspend his sentence and put him under the supervision of his
father, Appellant is already released on bail.”

Ajahar Ali Vs. State of West Bengal19

Facts of the case: On 6.11.1995, Nasima Begum (PW.1), aged about 16 years filed a complaint
alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa

17
AIR 1975 SC2216
18
AIR 1983 SC 654
19
SLP (CRL.) No. 2817 of 2013

20
Khatun, she met the appellant on the way who suddenly came and forcibly caught hold of her
hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding.

A case under Section 354/324 IPC was registered. After conducting the trial, the court of Ist
Judicial Magistrate, Ist Court, Malda vide judgment and order dated 9.5.2012 found the appellant
guilty for offence under Section 354 IPC and sentenced him as referred to hereinabove.

Aggrieved, the appellant preferred Criminal Appeal No.2/2012 before the learned Sessions
Judge, Malda and the said appeal was dismissed vide judgment and order dated 22.8.2012.

Appellant challenged both the aforesaid orders by filing Criminal Revision before the High
Court which has been dismissed by the impugned judgment and order dated 19.9.2012. Hence,
appeal was filed in Supreme Court.

Learned counsel appearing for the appellant challenged the impugned judgment by contending
that the appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000
(hereinafter referred to as the 'JJ Act 2000'), he ought to have been tried before the Juvenile
Justice Board and not by the criminal court, as was done. Even otherwise, considering the time
gap of 18 years and the fact that the appellant as well as the complainant have settled in life and
both of them are married and have children, their lives should not be disturbed. In all
circumstances, the court should give the benefit to the appellant under the provisions of
Probation of Offenders Act, 1958 (hereinafter referred to as the 'Act 1958').

The Supreme Court held this:

‘ In the instant case, as the appellant has committed a heinous crime and with the social condition
prevailing in the society, the modesty of a woman has to be strongly guarded and as the appellant
behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958
should be given to the appellant.’

Sanjay Dutt vs State Of Maharashtra20 on 21 March, 2013

The appellant was charged on four grounds

Firstly, The appellant, in pursuance of the aforesaid criminal conspiracy and during the period
from January, 1993 to April, 1993, agreed to keep in his possession and acquired 3 AK-56 rifles
and its ammunition, one 9mm pistol and its cartridges and handgrenades, unauthorisedly, which
were part of the consignments smuggled into the country by Dawood Ibrahim Kaskar and his
associates knowingly and intentionally that these were smuggled into the country for the purpose
of committing terrorists acts and that he thereby committed an offence punishable under Section
3(3) of TADA.

20
CRIMINAL APPEAL NO. 1060 of 2007

21
Secondly, The appellant, by doing the aforesaid act, unauthorisedly, in Greater Bombay which is
specified as a Notified Area under Clause (f) of Sub Section (1) of Section 2 of TADA and
thereby committed an offence punishable under Section 5 of TADA.

Thirdly, The appellant possessed the above mentioned arms and ammunitions with an intent to
aid terrorists and contravened the provisions of the Arms Act, 1959 and the Arms Rules, 1962,
the Explosive Substances Act, 1908 and the Explosives Rules, 2008 and thereby committed an
offence punishable under Section 6 of TADA.

Fourthly, The appellant, by doing the aforesaid act, committed an offence punishable
under Sections 3 and 7 read with Sections 25(1- A) (1-B)(a) of the Arms Act, 1959.

Appellant’s counsel stated that appellant had no previous involvement or conviction prior to one
in 1992 which ended in acquittal. Thus, according to him, he is not a previous offender or a
convict. In the event, this Court releases the appellant on Probation under the provisions of
the Probation of Offenders Act, neither any injustice would occasion to anyone as the offence in
which he was convicted, is not even a social offence nor any prejudice be caused to the
prosecution. He asserted that he is not a habitual offender, and is not likely to commit any
offence in future. The TADA Court did not get any opportunity to complain about the conduct of
the appellant in 19 years. He further submitted that he has also suffered the agony of long trial of
13 ½ (thirteen and a half) years. The stress and trauma of the same, besides the fact that he has
carried the tag of an alleged terrorist for 13 ½ (thirteen and a half) years though unwarranted, and
has been deprived of the company of his daughter, is a punishment in itself. He has also stated
that he had suffered mentally, physically and emotionally in the last several years.

He also informed this Court that he got married again in the year 2008 and is blessed with two
children aged 1 and ½ years and they need their father’s presence in their life. He further
submitted that he has been actively involved in an AIDS charity and raises funds for the free
treatment of aids patients who cannot afford the same, besides visiting the hospitals/centres. It is
further submitted that he is on the Board of Directors of “Save the Children Foundation” and
helping in raising funds for children who are needy, orphaned and destitute as their Brand
Ambassador for a long time, even prior to his being charged in this case.

The Supreme Court discussed the Probation Of Offenders Act and observed that:

‘The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person
found guilty of having committed an offence not punishable with death or imprisonment for life.
The same has also been held by this Court in Chhani vs. State of U.P., (2006) 5 SCC 396.

Section 360 of the Code of Criminal Procedure 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 Probation of Offenders Act
states that a person found guilty of an offence and dealt with under Section 3 or 4 of

22
the Probation of Offenders Act, shall not suffer disqualification, if any, attached to the conviction
of an offence under any law. The Code of Criminal Procedure does not contain parallel
provision. Two statutes with such significant differences could not be intended to co-exist at the
same time in the same area. Such co-existence would lead to anamolous results. The intention to
retain the provisions of Section 360 of the Code and the Probation of Offenders Act as applicable
at the same time in a given area cannot be gathered from the provisions of Section 360 or any
other provisons of the Code.

Keeping those information in the form of an additional affidavit, let us consider his claim and
eligibility of applying Section 4 of the Probation of Offenders Act.

Sub-section 4 of the Probation of Offenders Act contains the words “Notwithstanding anything
contained in any other law for the time being in force”. The above non obstante clause points to
the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an
overriding effect and shall prevail if the other conditions prescribed therein are fulfilled. Those
conditions are:

(i) The accused is found guilty of having committed an offence not punishable with death or
imprisonment for life;

(ii) The Court finding him guilty is of the opinion that having regard to the circumstances of the
case, including the nature of the offence and the character of the offender, it is expedient to
release him on probation;

(iii) The accused in such an event enters into a bond with or without sureties to appear and
receive sentence when called upon during such period not exceeding three years as the court may
direct and, in the meantime, to keep the peace and be of good behaviour.

84) The underlying object of the above provisions obviously is that an accused person should be
given a chance of reformation, which he would lose in case he is incarcerated in prison and
associates with hardened criminals. It is submitted that the provisions of the said Act are
beneficial provisions and, therefore, they should receive wide interpretation and should not be
read in a restricted sence vide Ishar Das vs. State of Punjab, 1973 (2) SCC 65.

Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or
above the age of 21 years. This section is intended to attempt possible reformation of an offender
instead of inflicting upon him the normal punishment of his crime. It is submitted that it is settled
law that while extending benefit of the said provision, this Court has to exercise its discretion
having regard to the circumstances in which the crime was committed, viz., the age, character
and antecedents of the offender. It is also settled law that such exercise of discretion needs a
sense of responsibility. The section itself is clear that before applying the same, this Court should
carefully take into consideration the attendant circumstances.’

23
Thus, the Supreme court held that:

‘The circumstances and the nature of the offence as analysed and discussed above are so serious
and we are of the view that they do not warrant Appellant the benefit of the provisions of
the Probation of Offenders Act, however, taking note of various aspects, we reduce the sentence
to minimum period, viz., 6 years to 5 years. The appeal is disposed of on the above terms.’

Ranjit Singh vs State Of Punjab on 23 April, 200921

Facts of the case:

Case of the prosecution is that on secret information received, police party on 15th July, 1996 in
a room of the tubewell, found the petitioner distilling illicit liquor. At the time of raid, accused
was found feeding the fire. The working still was dismantled and cooled down. One drum
containing 25 kg lahan, one shikala with a hole, one chapney, three cane pieces, one plastic pipe,
one iron balla and one can of plastic were found in possession of the petitioner. Case FIR No.
144/1996 was registered at Police Station Jandiala under Section 16/1/14 of Punjab Excise Act.

Petitioner was tried. Trial Court found the petitioner guilty and convicted him for the above said
offence and sentenced him to undergo rigorous imprisonment for two years and to pay fine of
Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for three
months.

Aggrieved against the same, petitioner filed an appeal. The appellate Court maintained the
conviction, however reduced the sentence awarded to the petitioner to one year rigorous
imprisonment.

The Supreme Court cited Joginder Singh v. State of Punjab22 and held this:

‘In Joginder Singh v. State of Punjab, 1980 PLR 585, a Full Bench of this Court also held that
mere prescription of the minimum sentence under Section 61(1)(c) of the Act was no bar to the
applicability of Sections 360 and 361 Cr.P.C. Further that the same was not a special reason for
denying the benefit of probation to a person convicted there under. It was further held that on the
same reasoning, there was no bar to the applicability of Sections 4 and 6 of the Probation of
Offenders Act. The Full Bench held as follows:

'To conclude on the legal aspect, therefore, it must be held that the mere prescription of the
minimum sentence under Section 61(1)(c) of the Punjab Excise Act, 1914 is no bar to the
applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the same is not
a special reason for denying the benefit of probation to a person convicted there under. In the

21
Criminal Revision No. 1544 of 2004

22
1980 PLR 585

24
alternative, it is equally no bar to the applicability of Sections 4 and 6 of the Probation of
Offenders Act. The answer to the question posed at the outset is rendered in the negative."

According to the counsel for the petitioner, petitioner has not only suffered a protracted trial but
he has remained in custody for a period of thirteen days.

I am in agreement with the submissions made by Mr.P.S.Dhaliwal. Accordingly, the order of

conviction is being maintained, however, order of sentence is set aside and petitioner is ordered
to be released on probation for a period of one year.

Counsel for the petitioner has stated that in the present case, occurrence pertains to year 1996.
Petitioner has already suffered a protracted trial of 13 years. It has further been submitted that in
the order, where quantum of sentence was determined, it was noticed by the trial Court that
petitioner was aged 20 years. Therefore, the petitioner, being less than 21 years of age, ought to
have been released on probation.’

Rajender Datt vs The State Of Haryana on 31 August, 199223

In brief, the facts of the prosecution case are that injured Bhagwan Dass Sharma PW4 was
posted as Shift Engineer in 15 M. W. Plant of Thermal Power House, Faridabad. Rajinder Dutt
accused was previously employed as Shift Attendant on this plant under the injured but was
transferred from there to Coal Handling Plant. The accused suspected the injured to be
instrumental in his transfer. On 3-10-1985 Bhagwan Dass Sharma had to resume his duties from
2 P.M. to 10 P.M. He arrived on the premises of Thermal Power House at about 1.45 p.m. and
was proceeding towards the power house after parking his Moped at the stand, when he reached
beyond the Chief Engineer's office, the accused arrived there and threatened to kill him due to
transfer. Mr. Sharma retraced his steps and tried to escape towards the office of the Chief
Engineer. However, the accused over took and gave him two blows on his left shoulder with
hockey stick. Ashok Kashyap, Assistant Engineer had also seen the occurrence. The accused
managed to escape along with hockey stick. Bhagwan Dass Sharma rushed to the office of Chief
Engineer and apprised him of this matter. The Chief Engineer in turn sent report Ex. P.C. to the
Station House Officer/ in charge of Police Station, Mujesar, Faridabad about this incident on the
basis of which formal F.I.R. Ex. PD was registered by S I Udey Singh on the same day at 3.50
P.M. A case under Section 323/506 IPC was registered against the accused. He also got the
injured medically examined from Dr. A. K. Saxena PW 1, who found two contusions on the left
shoulder of the injured. Injury No. 1 was kept under observation subject to X-ray examination
while injury No. 2 was declared simple.

Sub-Inspector Udey Singh also visited the spot and prepared rough site plan Ex. PU. On X-ray
examination, Dr. D.B. Chakarwarti PW 2 found the fracture of acromion process of the left
shoulder. Injury No. 1 was declared grievous in nature. The offence was converted to one

23
1993 CriLJ 1025

25
under Sections 333/506/353 IPC. After completion of investigation, the accused was arraigned
for trial on such like allegations.

Before the trial Court, in order to prove its above-referred case, the prosecution examined seven
witnesses. Bhagwan Dass Sharma injured and Ashok Kashyap supported the above referred
ocular version.

The version of the accused before the trial Court in his statement recorded under Section 313 of
the Code of Criminal Procedure was that of innocence and false implication contending that the
injured was not competent to transfer him as only Superintending Engineer could have done so.
The accused-appellant, however, led no evidence in defence despite being called upon to do so.

Rajinder Dutt appellant was convicted by the learned Addl. Sessions Judge, Faridabad on a
charge for offence punishable under Sections 333/506/353 IPC and was awarded two years' RI
and fine of Rs. 500/- or in default of payment thereof, to further undergo one month's RI on the
first count. He was awarded one year's RI on the second count. No separate sentence was
awarded for offence under Section 353 IPC, in view of awarding the sentence under Section
333 IPC. Both the substantive sentences were ordered to run concurrently. Feeling aggrieved
against the orders of conviction and sentence, the appellant has went in appeal.

The Supreme Court held that:

‘The question then arises whether it is a fit case where the appellant should be given the benefit
of Probation of Offenders Act or of the provisions of Section 360 Cr P.C. in view of the
reformatory trend of criminal penalogy, In this regard, it is noteworthy that the appellant had
indulged in causing grievous hurt to his superior officer serving in the same department on the
misconceived notion that the latter was instrumental in his transfer. Consequently, it is not a fit
case for releasing the appellant on probation.’

Pyarali K. Tejani vs Mahadeo Ramchandra Dange24

The appellant/petitioner, a dealer in scented supari, was charged with the offence of having
sold and retained for selling scented supari with saccharin and cyclamate, prohibited
artificial sweeteners, in contravention of S.7(i)(ii) and rule 47 of the Prevention of Food
Adulteration Act, 1954 and thereby having committed an offence punishable under section
16(1)(a)(i) of the Act. The Magistrate convicted the accused and imposed a fine of only Rs.
100/-. On revision the High Court enhanced the punishment to the statutory minimum of
six months imprisonment and one thousand rupees fine. In October 1972, a circular was
issued by the Municipal Corporation of Greater Bombay that the Central Committee for Food
Standards had accepted the recommendation of is Sub-Committee that saccharin may be
permitted to be used in scented. supari. In appeal of this Court the appellant admitted the sale

24
1974 AIR 228

26
as also the presence of saccharin and cyclamate in the supari sample. But he urged that
section 23(i)(b) of the Act which empowered the framing of rules was bad, because, the statute
laid down no policy, principles or guidelines regarding articles of food for which standards
are to be prescribed, that supari is not( an article of food and, as such, the admixture of any
sweetener cannot attract the per-at provisions; that the dealer believed in good-faith that
there was no cyclamate in the substance sold induced by the warranty and did not know that
saccharin was contraband, that neither saccharin nor cyclamate is biochemical risk, and so
a blanket ban on their use is an unconstitutional restriction on he freedom of trade guaranteed
in article 19; that there is discrimination against supari vis-à-vis carbonated waters wherein
the use of saccharin is permitted under rule 47; and that in any event the Probation of
Offenders Act should have been applied.

The Judgment of the Court was delivered by KRISHNA IYER, J., held that:

‘The kindly application of the probation principle is negatived by the imperatives of social
defence and the improbabilities of moral proselytisation. No chances can be taken by society
with a man whose anti-social operations, disguised as a respectable trade, imperil numerous
innocents. He is a security risk. ‘

 Admonition v. Probation

In re: Salem Govindappa Chetty25, the Andhra Pradesh High Court released the accused on
probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, though the
accused was convicted under Section 16(1)(a) of the Act of the Prevention of Food Adulteration
Act, 1954 on a charge of selling Mysorepak (sweet) containing non-permitted coaltar dye
metanil yellow, and even though the accused therein was the owner of the shop, while Jai Narain
was the employee. The appellant Jai Narain pitched his tent too high in praying for release after
due admonition. He prayed for the relief which even the Supreme Court was not empowered to
grant, Section 3 being inapplicable. There is a sharp distinction between release after due
admonition under Section 3 and release, on bond, on probation of good conduct under Section 4.
It is true that under Section 12 of the Act release under Section 3 or Section 4 is not a
disqualification attaching to a conviction of an offence. In case of release after due admonition,
the sword does not remain hanging on the accused. The fact that such an order may be set aside
under Section 11(4) is a different matter while in case of release on a bond on probation of good
conduct the sentence is merely suspended and the sword remains hanging on the accused till the
expiry of the bond and in the event of the accused failing to observe the conditions of the bond,

25
1970 Cr. L.J. (A.P.) 47

27
he is liable to be dealt with under Section 9, that is, he may be sentenced for the original offence
or a penalty may be imposed upon him.

 Meaning of the character of the accused

The word character is not defined in the Act. In Nilgiris Bar Association v. T.K Mahalingam26
it was held that The word character must be given the ordinary meaning. The provision of
Section 4 vests in the court a discretion to release a person found guilty of having committed an
offence not punishable with death or imprisonment for life.

In Rajeswari Prasad v. Ram Babu Gupta27 , it was held that ‘It is really for the court ,by which
the person is found guilty , to determine ,having regard to the circumstances of the case including
the nature of the offence and the character of the offender , whether or not it will be expedient to
release him on probation of good conduct . It is only when the court forms an opinion that in a
given case the offender should be released on probation of good conduct that the court acts as
provided in Section 4’

 Power is discretionary

In State of Karnataka v. Mohamed Nazeer28 it was held that, ‘While granting the benefit
under the Act the court shall take into consideration the nature of the offence. If the offence is
not trivial in nature, the court should not be lenient in granting such a benefit’ . Power to release
on b probation is discretionary and has to be exercised in appropriate cases.

 Conditions:

Conditions to be satisfied for application of Section 4

(1) the offence committed must not be one punishable with death or imprisonment for life .

(2) the court must opine that it is expedient to release him on probation of good conduct instead
of sentencing him to any punishment and

(3) the offender or surety must have a fixed place of abode it regular occupation in a place situate
within the jurisdiction of the court .

Relevant factors to be taken into consideration. The convicts have no indefensible right to be
released .The right is only to be considered for release on license in terms of the Act and the
rules . The probation Board and the State Government are required to take into consideration the
relevant factors before deciding or declining to release a convict.

26
AIR 1998SC398
27
AIR 1961 Patna 19
28
2003 (SCC(Cri)610

28
  Scope

The provision of section 4 vests in the court a discretion to release a person found guilty of
having committed an offence not punishable with death or imprisonment for life. It is really for
the court , by which the person is found guilty , to determine having regard to the circumstances
of the case including the nature of the offence and the character of the offender , whether or not it
will be expedient to release him on probation of good conduct. In Rajeswari Prasad v. Ram
Babu Gupta29 it was held that It is only when the court forms an opinion that in a given case the
offender should be released on probation of good conduct the court acts as provided in section 4.

A wide discretionary jurisdiction has been conferred on the courts to release the convicts not
involved in very heinous offences, on probation instead of incarcerating them to prison. The
main object of awarding punishment is the prevention of crime and reformation of the offender

The policy of the law is that where an offence is an overly heinous one grant of probation is
ruled out as a matter of law. The heinousness of the offence and its deleterious effect on the body
politic, is in the eye of law, “ if not fundamental , a very relevant factor for the grant of refusal of
probation “.

In Dasappa v. State of Mysore30 it is laid down as follows :

“It is only when the court forms an opinion that the offender in a given case should be released
on probation of good conduct that it has to act as provided by Section 4 of the Act . It was for the
accused to have placed all the necessary material before the court which could have enabled it to
consider that the first accused was an offender to whom the benefit of section 4 would be
extended “.

 Procedure when the offender breaches the conditions under sub-section 4 of Section
4 of Probation of Offenders Act, 1958.

As per Section 9, if the court which passes an order under Section 4(4) in respect of an offender
or any court which could have dealt with the offender in respect of his original offence has
reason to believe, on the report of a probation officer or otherwise, that the offender has failed to
observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant
for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring
him or them to attend before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand him to custody
until the case is concluded or it may grant him bail, with or without surety, to appear on the date
which it may fix for hearing.

29
AIR 1961 Patna 19
30
AIR 1965 Mys 224

29
If the court, after hearing the case, is satisfied that the offender has failed to observe any of the
conditions of the bond or bonds entered into by him, it may forthwith

(a) Sentence him for the original offence.

(b) Where the failure is for the first time, then, without prejudice to the continuance in force of
the bond, impose upon him a penalty not exceeding fifty rupees.

It is important to note that the sentencing in respect of which the probation is given is merely
suspended when the offender is released on probation under Section 4. Thus, if any condition of
the probation is violated, the court may sentence the offender for the original offence without
conducting a fresh trial.

 Power of court to require released offenders to pay compensation and costs (Section
5 of the Probation of Offenders Act, 1958)

As per Section 5, the Court directing the release of an offender under section 3 or section 4,
May, if it thinks fit, make at the same time a further order directing him to pay-

(a) Such compensation as the court thinks reasonable for loss or injury caused to any person by
the commission of the offence;

(b) Such costs of the proceedings as the court thinks reasonable.

 Restrictions on imprisonment of offenders under twenty-one years of age (Section 6

of the Probation of Offenders Act, 1958)

Sub-section(1) of this Section states that when any person under twenty-one years of age is
found guilty of having committed an offence punishable with imprisonment (but not with
imprisonment for life), the court by which the person is found guilty shall not sentence him to
imprisonment unless it is satisfied that, having regard to the circumstances of the case including
the nature of the offence and the character of the offender, it would not be desirable to deal with
him under section 3 or section 4, and if the court passes any sentence of imprisonment on the
offender, it shall record its reasons for doing so.

Sub-section (2) of this Section provides that for the purpose of satisfying itself whether it would
not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section
(1) the court shall call for a report from the probation officer and consider the report, if any, and
any other information available to it relating to the character and physical and mental condition
of the offender.

30
Section 6 tries to impress upon the court to lean in favor of giving benefit in cases of young and
immature adults. When any person under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but not with imprisonment for life), the
court by which the person is found guilty shall not sentence him to imprisonment unless it is
satisfied that, having regard to the circumstances of the case including the nature of the offence
and the character of the offender, it would not be desirable to deal with him under section 3 or
section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its
reasons for doing so.

For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or
section 4, the court shall call for a report from the probation officer and consider the report, if
any, and any other information available to it relating to the character and physical and mental
condition of the offender. Thus, even though no mathematical rule is given, the general intention
of the legislature is to give the benefit of probation as much as possible

 Report of probation officer to be confidential (Section 7 of the Probation of

Offenders Act, 1958)

The report of a probation officer referred to in sub-section (2) of section 4 or sub-section (2) of
section 6 shall be treated as confidential: Provided that the court may, if it so thinks fit,
communicate the substance thereof to the offender and may give him an opportunity of
producing such evidence as may be relevant to the matter stated in the report.

 Variation of conditions of probation (Section 8 of the Probation of Offenders Act,

1958)

Sub-section (1) of this section provides that if, on the application of a probation officer, any court
which passes an order under Section 4 in respect of an offender is of opinion that in the interests
of the offender and the public it is expedient or necessary to vary the conditions of any bond
entered into by the offender, it may, at any time during the period when the bond is effective,
vary the bond by extending or diminishing the duration thereof so, however, that it shall not
exceed three years from the date of the original order or by altering the conditions thereof or by
inserting additional conditions therein: Provided that no such variation shall be made without
giving the offender and the surety or sureties mentioned in the bond an opportunity of being
heard.

31
Sub-section (2) of this Section provides that If any surety refuses to consent to any variation
proposed to be made under Sub-section (1), the court may require the offender to enter into a
fresh bond and if the offender refuses or fails to do so, the court may sentence him for the
offence of which he was found guilty.

Sub-section (3) of this section provides that notwithstanding anything contained in the Act, the
court which passes an order under Section 4 in respect of an offender may, if it is satisfied on an
application made by the probation officer, that the conduct of the offender has been such as to
make it unnecessary that he should be kept any longer under supervision, discharge the bond or
bonds entered into by him.

 Procedure in case of offender failing to observe conditions of bond (Section 9 of the

Probation of Offenders Act, 1958)

Sub-section (1) of this section provides that if the court which passes an order under Section 4 in
respect of an offender or any court which could have dealt with the offender in respect of his
original offence has reason to believe, on the report of a probation officer or otherwise, that the
offender has failed to observe any of the conditions of the bond or bonds entered into by him, it
may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties,
if any, requiring him or them to attend before it at such time as may be specified in the summons.

Sub-section (2) of this section provides that the court before which an offender is so brought or
appears may either remand him to custody until the case is concluded or it may grant him bail,
with or without surety, to appear on the date which it may fix for hearing.

Sub-section (3) of this section provides that If the court, after hearing the case, is satisfied that
the offender has failed to observe any of the conditions of the bond or bonds entered into by him,
it may forthwith—

(a) sentence him for the original offence; or

(b) where the failure is for the first time, then, without prejudice to the continuance in force of
the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the
court may fix, the court may sentence the offender for the original offence.

 Procedure For Probation Service

S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that the judge would consider the
report of the probation officer before deciding on whether to grant probation. S. 14 of the said
Act lays down the duties of the Probation Officers.

32
The pre-sentence report of the Probation Officer is the fundamental document for the guidance of
the Court whether to grant the benefit of probation to the accused or not. The object of the pre-
sentence report is to appraise the court about the character of the offender, exhibit his
surroundings and antecedents and throw light on the background which prompted him to commit
the offence and give information about the offenders conduct in general and chances of his
rehabilitation on being released on probation.

The judge may also pass a supervision order under section 4(3) of the Act, whereby the offender
is placed under the supervision of a probation officer and certain conditions are imposed upon
him. This is mostly in the form of regular visits to the supervising officer. Some of the conditions
which must be followed have been laid down in S. 4(4). On the application of the probation
officer such conditions may be varied- S. 8(2) and also the offender may be discharged- S. 8(3).
If the offender fails to follow the conditions laid down by the Court, the original sentence against
him may be revived S.9.

Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the report of a
probation officer or a recognized voluntary organization to be considered before passing a
sentence. The Magistrate appointed as a member of the Board constituted under this Act must
know something of child psychology. The Board would pass orders against a juvenile. The Act
provides for the setting up of Observation and Special Homes by the State Government where
the juvenile could be placed. Here the rehabilitation and social integration of the child would
take place. It also provides for an After care programme which would take care of the delinquent
child after he has been discharged from these homes, based on the report of the Probation
Officer. The Probation officers appointed under the probation of Offenders Act would also
function under the Juvenile Justice (Care and Protection of Children) Act.

Probation in India is mostly dependent on the policies of the State rather than a uniform Central
Policy. In Karnataka a State level Probation Advisory Committee has been constituted with High
Court Judge as Chairman with official and non-officials as members. A District level Probation
Advisory Committee has been constituted in each district consisting of the District and Sessions
Judge as Chairman with official and non-officials as members. After Care Programmes have
been set up to improve the lives of those released on probation.

The After Care Programme, in Kerala, is intended to rehabilitate released prisoners and
probationers coming under the supervision of District Probation Officers. By utilizing this
amount they can engage in small scale income generating activities. The amount of assistance is
Rs.10,000/- per head. If the amount is insufficient for meeting the expenses this can be attached
with some bank loan. Department of Juvenile Welfare and Correctional Services was set up in
Andhra Pradesh in 1990. It gives the following probation services taking care of probationers

33
released by the courts and ex-convicts, released juveniles, after-care work, counseling and
guidance to reform themselves and not to revert to crime and for their rehabilitation through
Govt. Welfare Agencies.

 Removal of disqualification attaching to conviction (Section 12 of the Probation of

Offenders Act, 1958)

Section 12 provides that notwithstanding anything contained in any other law, a person found
guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer
disqualification, if any, attaching to a conviction of an offence under such law: Provided that
nothing in this section shall apply to a person who, after his release under section 4 is
subsequently sentenced for the original offence.

In simple language it means that a person released on probation, shall not be disqualified. But if
a person fails to comply with conditions under Section 9 of the Act, then he won’t get the
protection of this section.

 Probation Officer (Section 13 of the Probation of Offenders Act, 1958)

As per Section 13, a probation officer under this Act shall be –

(a) a person appointed to be a probation officer by the State Government or recognised as such
by the State. Government ; or

(b) a person provided for this purpose by a society recognized in this behalf by the State
Government; or

(c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a
probation officer in the special circumstances of the case.

 Duties of probation officers (Section 14 of the Probation of Offenders Act, 1958)

A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-

(a) inquire, in accordance with any directions of a court, into the circumstances or home
surroundings of any person accused of an offence with a view to assist the court in determining
the most suitable method of dealing with him and submit reports to the court.

(b) supervise probationers and other persons placed under his supervision and, where necessary,
endeavor to find them suitable employment ;

(c) advise and assist offenders in the payment of compensation or costs ordered by the court ;

34
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have
been released under section 4; and

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

35
PROBATION UNDER CODE OF CRIMINAL PROCEDURE ACT, 1973

Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision to have dealt
with probation. After amendment in 1974 it stands as S.360 of The Code of Criminal Procedure,
1974. S. 361 makes it mandatory for the judge to declare the reasons for not awarding the benefit
of probation. Both the Act and S.360 of the Code exclude the application of the Code where the
Act is applied. The Code also gives way to state legislation wherever they have been enacted.

 Order to release on probation of good conduct or after admonition (Section 360 of

Code Of Criminal Procedure Act, 1973)

(1) When any person not under twenty-one years of age is convicted of an offence punishable
with fine only or with imprisonment for a term of seven years or less, or when any person under
twenty-one years of age or any woman is convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved against the offender, if it appears to
the Court before which he is convicted, regard being had to the age, character or antecedents of
the offender, and to the circumstances in which the offence was committed, that it is expedient
that the offender should be released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be released on his entering into a bond,
with or without sureties, to appear and receive sentence when called upon during such period
(not exceeding three years) as the Court may direct and in the meantime to keep the peace and be
of good behavior:

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.

(2) Where proceedings are submitted to a Magistrate of the first class as provided , 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 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.

36
(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 such 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 shall not under the sub-section inflict a greater
punishment 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 far as may be, apply in the case of
sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender, 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 apprehensions.

(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 or rehabilitation of youthful offenders.

 Release on probation of good conduct (Section 360(1))

Having regard to the age, character or antecedents of the offender, and the circumstances in
which the offence was committed, if the court convicting the accused person considers it
expedient to release the offender on probation of good conduct (instead of sentencing him at
once to any punishment), it may direct the offender to 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 fix and in the meantime to keep the peace and be of
good behaviour. Such a release is permissible only if the following conditions are satisfied:

1. There is no previous conviction proved against the offender.

37
 2. When the person convicted is a woman of any age, or any male person under 21 years of
age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
3. When the person convicted is not under 21 years of age, and the offence of which he is
convicted is punishable with fine only or imprisonment for a term of seven years or less.

 First Offenders

The expression first offender refers to an offender who has no previous conviction to his credit,
apart from the offence in question. It is also necessary that the offence committed by him for the
first time must be one of those mentioned in Section 360. First offenders under this section are
entitled to indulgence on the ground of their age, character or antecedents and to the
circumstances in which the offence is committed. The object of this section is to avoid sending
the first time offender to prison for an offence, which is not of a serious character and thereby
running the risk of turning him into a regular criminal.

First offenders according to sub-section (1) fall under two classes:

1. When the person convicted is a woman of any age, or any male person under 21 years of
age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
2. When the person convicted is not under 21 years of age, and the offence of which he is
convicted is punishable with fine only or imprisonment for a term of seven years or less.

Offenders with any precious conviction or those found guilty of any offence punishable with
death or imprisonment for life are totally beyond the purview of the section. From this section it
is clear that it tries to reform the criminals by treating them leniently only in those cases where
there is no serious danger or threat to the protection of the society.

For application of this section it is necessary that the offender must not have been convicted
previously so as to bring him in the category of the first offender. On fulfillment of the above
conditions, if the court by which the offender is convicted considers it expedient that the offender
should be released on probation of good conduct, it may, instead of sentencing him at once to
any punishment, order him to be released on bond with or without sureties. The offender may be
required to furnish a bond to appear and receive sentence whenever called upon during such
period not exceeding three years as the court may direct. The offender shall be directed by the
court to keep the peace and be of good behaviour if he is released on probation under this
section. In Md. Syad Ali v. State of Guj.[iii], when the accused was a first offender and his age
was below 21 years but the court had not applied its mind to the application of section 360, it
was held that it was a fit case for granting probation.

38
No offender can as a matter of right, on fulfilling the conditions laid down in this section, claim
to be released on probation of good conduct. It is a discretionary power given under this section
to the court.

 Release after admonition (Section 360(3))

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, the court may, after convicting the accused person, release him after due
admonition. Such a release is permissible only if the following conditions are satisfied:

1. There is no previous conviction proved against the accused person.

2. The offence of which he has been accused of is either theft, theft in a building or
dishonest misappropriation or is punishable under the IPC with not more than 2 years'
imprisonment or is one punishable with fine only.
3. Subsection (3) is applicable only in respect of the specified offences and such other
offences under the IPC that are not punishable with more than two years' imprisonment.
Under this sub-section the court has got the discretion to release the offender after
admonition instead of sentencing him to any punishment.

 Probation Of Good Conduct Or Release After Due Admonition May Be Made By

An Appellate Court (Section 360(4))

An order under s. 360 directing release of the convicted offender on probation of good conduct
or release after due admonition may be made by an appellate court or by the High Court or court
of session when exercising its powers of revision.

 High Court or the Court of Session may set aside such order (Section 360(5))

The High Court or the Court of Session may, on appeal or when exercising its powers of
revision, set aside such order and in lieu thereof pass sentence on such offender according to law.
But the High Court shall not inflict a greater punishment than might have been inflicted by the
court by which the offender was convicted.

 Breach of recognisances Section 360(8) & Section 360(9)

In case the offender fails to observe the conditions of his recognizance, the court which
convicted the offender or any court which could have dealt with him in respect of his original
offence may issue a warrant for his apprehension and when brought before it may either remand
him in custody until the case is heard or admit him to bail with a sufficient surety and after
hearing the case, pass sentence.

39
  Special reasons to be recorded in certain cases where the court decides to pass any
sentence on the offender (Section 361 of Code Of Criminal Procedure Act, 1973)

Special reasons to be recorded in certain cases, where in any case the Court could have dealt
with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders
Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time
being in force for the treatment, training or rehabilitation of youthful offenders, but has not done
so, it shall record in its judgment the special reasons for not having done so.

 Special directive in case of non-punitive measures

The discretion to sentence a convicted person to any punishment has been narrowed down by
section 361. This section requires that the court shall normally deal with the offenders under
section 360 or under the POA, or in case of youthful offenders under the laws of treatment,
training or rehabilitation, of such youthful offenders; and that in case the court decides to pass
any sentence on the offender, it shall record special reasons for doing so. Thus, section 361
clearly shows that the courts while dealing with the convicted persons are to adopt, as a matter of
policy, non punitive measures for the reformation and rehabilitation of offenders, and as far as
possible, to avoid awarding deterrent and retributive punishments.

Where the accused may be given benefit of provisions contained in the POA or section 360, but
he is not given that benefit, section 361 requires the court to gives its reasons for not doing so.

Section 361 of the code casts a duty upon the court to extend the benefit of the Probation Act to
the accused wherever it is possible and to state 'special reasons' if it does not do so. The section
makes it mandatory for the court to record in its judgment 'special reasons' for not extending the
benefit of the Probation Act to the accused. The 'special reasons' must be such as to compel the
court to hold that it is impossible to reform and rehabilitate the offender after examining the
matter with due regard to the age, character and antecedents of the offender and circumstances in
which the offence was committed. This is some indication by the Legislature that reformation
and rehabilitation and not mere deterrence, are now among the foremost objects of the
administration of criminal justice in our country.

The omission to record special reasons as required by section 361 is an irregularity and may
require the court of appeal or revision to set aside the sentence passed by the lower court if the
irregularity has occasioned a failure of justice.

40
In Santa Singh v. State of Punjab31, it was observed by the Supreme Court:

"Having regard to the object ... there can be no doubt that it is one of the most fundamental parts
of criminal procedure and non-compliance thereof will ex-facie vitiate the order [of sentence].
Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent
and implicit because of the infraction of the rules of natural justice which have been incorporated
in this statutory provision, because the accused has been completely deprived of an opportunity
to represent to the court regarding the proposed sentence and which manifestly results in a failure
of justice.”

31
AIR 1975 SC2216

41
DIFFERENCE BETWEEN SCOPE OF PROBATION UNDER CODE OF CRIMINAL
PROCEDURE ACT, 1973 AND THE PROBATION OF OFFENDERS ACT, 1958

 Scope of Section 4 of Probation Of Offenders Act Is Far More Wider Than The
Provisions Of Section 360 Of The Code Of Criminal Procedure, 1973.

Unlike Section 360 of Cr. P.C., Section 4 of 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.

Further, Section 360 is applicable in respect of first offenders, Section 4 of the Probation of
Offenders Act allows the court to grant probation benefits to a person with previous conviction..
Thus, the scope of the Probation of Offenders Act is far more wider than the provisions of
Section 360 of the Code of Criminal Procedure, 1973.

The Supreme Court in Chhanni v. State of Uttar Pradesh32, once again reiterated that the
enforcement 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 upto 7 years, and any
woman convicted of an offence not punishable with death or imprisonment for life.

 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
Probation Of Offenders Act Does Provide For It.

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 Probation Of Offenders Act does provide for it.
Further Section 12 of the Probation of Offenders 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 Chhanni v. State of Uttar Pradesh33, 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.

32
(2006) 5 SCC 396
33
Supra note 24

42
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 subsequent to modification of the sentence. The Court,
however, directed the High Court to consider the application considering the peculiar
circumstances of the case.

The Supreme Court, reiterated once again in Ramesh Dass v. Raghunath & others34, that
release of an accused charged with commission of an offence under Section 326 r/w 149 IPC on
probation under Section 360 IPC would be improper as the offence is punishable with life
imprisonment. Therefore, provisions of the Probation of Offenders Act would be applicable in
the case.

The respondents in this case, were convicted under Section 326/149 and Section 325/149 IPC by
the Chief Judicial Magistrate and sentenced to 5 years’ rigorous imprisonment and a fine of Rs.
5,000/- each. On appeal, the Additional District Judge, Karnal reduced the sentence to three
years.

The State appealed against this order and the High Court quashed the judgment of A.D.J. and
restored the judgment of the Chief Judicial Magistrate and directed release of the accused
persons on probation under Section 360 Cr. P.C. and enhanced the amount of fine to Rs. 15,000/-
. It was also directed that 50 per cent of fine shall be payable to injured victim.

In appeal against the judgment of the High Court, the Supreme Court held that since the
Probation of Offenders Act was applicable in the State of Haryana, the provisions of Section 360
Cr. P.C. relating to release of offender on probation would not be applicable. Further, Section
360(1) of Cr. P.C. itself provides that the provisions of this section would not apply if the offence
is punishable with life imprisonment. The case was therefore, remitted to the High Court.

 Power Under The Probation Of Offenders Act Can Be Exercised By Any Magistrate
Whereas Such Power Under Section 360 Cr. P.C. Is Restricted To The Judicial
Magistrate First Class

It is significant to note that the power under the Probation of Offenders Act can be exercised by
any magistrate whereas such power under Section 360 Cr. P.C. is restricted to the Judicial
Magistrate First Class. However, Second Class Magistrate may also exercise the power to release
an offender on probation if he is specially authorised by the High Court in that behalf.

 Unlike Section 360 Cr. P.C., there is provision for placement of the offender under
the supervision of a probation officer under the Probation Act

34
[2008] INSC 189

43
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.

 Scope of Section 6 of Probation of Offenders Act is limited in comparison to Section

361 of the Code of Criminal Procedure

Firstly, Section 6 of the Probation of Offenders Act restricts the discretion of the court only if it
wants to sentence a young offender to imprisonment. Section 361 goes far behind this objective.
Even if the court wants to award a sentence of fine only, the section will discourage it by making
it obligatory for the court to record special reasons for not dealing with the criminal under either
of the two Acts.

Secondly, unlike section 6 of the Probation of Offenders Act, Section 361 restricts the judicial
discretion even in cases of persons who are above 21 years of age and are quite grown up.

The Supreme Court in Gulzar v. State of Madhya Pradesh35, 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.

35
(2008) 5 SCC 468

44
PROBLEMS IN THE PRACTICAL IMPLEMENTATION OF PROBATION IN INDIA

1. S. 6 of the Probation of Offenders Act, which makes it easier for a person below 21 years
of age to benefit from probation. This is regardless of their antecedents, personality and
mental attitude. It might lead to recidivism because many of them may not respond
favorably to this reformative mode of treatment. Also, in many cases it is difficult to
ascertain whether the delinquent is a first offender or a recidivist.

2. The Probation of Offenders Act, in sections 4(2) and 6(2), lays down that report of the
probation officer is considered before awarding probation. But, the Courts generally have
shown scant regard for the pre-sentence report of the probation officer because of lack of
faith in integrity and trustworthiness of the Probation Officers. In their view calling for
the pre-sentence report would mean unnecessary delay, wastage of time, undue
exploitation of the accused by the probation officer and likelihood of biased report being
submitted by him, which would jeopardize the interest of the accused and would be
contrary to the object envisaged by the correctional penal policy.

3. Section 4 of the Probation of Offenders Act does not make supervision of a person
released on probation mandatory when the court orders release of a person on probation
on his entering into a bond with or without sureties. This is not in accordance with the
probation philosophy, which considers supervision essential in the interests of the
offender, against corrective justice.

4. The lower judiciary in India has not at all taken into consideration the objects and reasons
of this act, while applying its discretion in regard to grant of probation. In an umpteen
number of cases the accused had to move the High Court and even the Supreme Court to
get the relief of probation. If an accused gets relief of probation only in the High Court or
the Supreme Court after passing through the turmoil of a long and cumbersome judicial
process, he would, psychologically, be diverted towards hardened and the whole purpose
of the Act would be forfeited.

5. Variation or discharge of the probationer is based solely on the report of the probation
officer; this leaves the probationer at the mercy of the Probation Officer.

6. The after probation services are not very effective. Thus, even considering that a sentence
of probation has been passed and the offender is placed under supervision it is nothing
more than a regular visit to the officer. There is no scientific process of rehabilitation and
the Probation Officers aren’t adequately trained. They are recruited between 20 and 26
years of age. They are grouped into districts and supervised by a state/provincial chief.

45
 There is no in-service training and occasional refresher courses, and thus they are not
adequately trained.

7. Further, often there is a lack of interest for social service among the probation personnel.
Lack of properly qualified personnel, want of adequate supervision and excessive burden
of casework are attributed as the three major causes of inefficiency of the probation-staff.

46
SUGGESTIONS TO MAKE PROBATION SERVICE FULFILL ITS PURPOSE

A few suggestions have been given in the project which may be implemented at the legislative
and the administrative level, which would make probation effective in India. Changes that could
be brought about in the law are enumerated below. These changes are mostly applicable to the
Probation of Offenders Act as it is more widely applicable than S.360 of the Code.

 Due importance must be given to the reports of the probation officers by making
necessary amendments in section 4(2) and section 6(2) of the Act. Probation must be
based on thorough investigation into the case history of the offender and the
circumstances associated with his crime. United Nations Standard Minimum Rules for
Non-Custodial Measures also provides that the judicial authority must avail of such a
report.

 Recidivists have often proved a failure in the process of probation. It has, therefore, been
generally accepted that probation should only be confined to the cases of juveniles, first
offenders and women offenders. Though S.360 of CrPC lays down that only first
offenders will be granted this benefit, if they are not below 21 years of age, no such
condition has been laid down in the Act. Necessary amendment may be done to
incorporate the same.

 It must be made mandatory for offenders to be placed under supervision of a probation

officer, by amendment under S.4 (3) of the Act, as that would best serve the philosophy
of probation. If the officer feels that the offender would not commit a crime, he could
then submit to the court an application for the offenders discharge. Also, it has been left
to the discretion of the Probation Officer to decide and inform the Court about necessity
to vary an order of probation or to discharge the probationer, so there must be a
complaint mechanism provided is a probationer wants to complain against a decision
concerning the implementation made by the implementing authority, or the failure to take
such a decision.

 The proviso to S(4) of the Act lays down that probation would be granted only after the
offender or his surety, have fixed place of abode or regular occupation. A large segment
of offenders consists of the poor, the illiterate and the unskilled. It would not be possible
for them to fulfill the conditions in all cases, hence the proviso should be amended to not
make it mandatory, and leave it at the jurisdiction of the Court. Amendment could be
made to The Code of Criminal Procedure to include the provisions for pre-sentence
report and supervision.

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 To make the judiciary more responsive, an amendment could be brought about in The
Probation of Offenders Act which would make it mandatory for the judiciary to lay down
the grounds as to why the benefit of probation must not be given, on the lines of S.361 of
the Code.

 The provisions under the Probation of Offenders Act and the Code of Criminal Procedure
could be amended to be similar to the Juvenile Justice (Care and Protection of Children)
Act, where more detailed procedures are laid down, like for the setting up of observation
homes, report of the probation officer.

 Changes could be brought about in the way administration deals with probation.
Some of them are enumerated below.

 India, being a developing country can’t spend heavily on correctional measures, as its
emphasis would be more on economic improvement. Due to lack of economic resources
most developing countries violate the UN Standard Minimum Rules. It wouldn't be
possible for India to adopt all of the measures prescribed by the UN, but India could
adopt a few of the measures.

The first among them must be to have trained probation personnel. This isn't there today
because the task of the probation officers is not given much importance in India. It is
considered to be a mere formality, but if utilized well they would be most effective. The
quality of probation service must be improved by making the service conditions of the
probation staff more lucrative. This will attract well-qualified and competent persons to
the profession. The probation personnel ought to be
specially trained so that they can discharge their duty as probation officer competently.

 A nation-wide uniform scheme of training for probation personnel with emphasis on

social-work and rehabilitative techniques would serve a useful purpose to improve the
efficacy of probation service in India. Guidelines for the training of Probation officers as
have been laid down in the United Nations Standard Minimum Rules for Non-Custodial
Measures, may be followed to the extent possible.

South Africa, though a developing country makes it necessary that desired entrants have
degrees in criminology, psychology, or social work. There are also monitoring staff who
work parallel to probation officers. Loans are offered for full and part-time study and
short courses. Thus it is no excuse that probation may be implemented only in the
developed and rich countries.

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 Further an increased investment on correctional services for the poor, illiterate and
unskilled would be most productive not only in reducing crime but also in improving the
quality of life among the strata the come from and are ultimately to return to. The Kerala
Government has provided for an After Care Programed to rehabilitate probationers. They
are given an assistance up to Rs.10, 000/- per head. By utilizing this amount they can
engage in small scale income generating activities. The amount of assistance is. If the
amount is insufficient for meeting the expenses this can be attached with some bank loan.
Such services could be extended to the rest of India.

 Further, this system must be extended to rural courts where there is general lack of social
agencies to undertake the task of rehabilitation of offenders. Rural delinquents may be
more responsive to this correctional method of treatment than the urban offenders
because of their relatively simple life-style. In developing probation and aftercare
services it should be ensured that women and children are specially assisted.

In U.S., Prediction Tables are compiled to plan probation strategies. Such tables may help
in anticipating the probable result of correctional treatment on different offenders. There,
they have proved immensely helpful in estimation of offender’s personality for
individualized treatment. For example, a juvenile delinquent from a broken home would
be less responsive to treatment than a person from a good family background.

The present system in parts of the country, where the offender only has to present himself
before the probation officer on a regular basis would not suffice.

 At present the work of probation is assigned to different departments in different States.

In some states probation service is placed under the Social Welfare Department while in
others in functions under the Panchayat Department or the Home Department. It is
advisable to have an independent Department of correctional Services on the pattern of
the state of Gujarat at the national level to exclusively deal with rehabilitation of
offenders, of which probation is one of the techniques.

 Lastly, An attitudinal change, must be sought and brought about among the judicial
officers towards the significance of the probation system, this would make the concept
more workable and beneficial. Probation in India as of today is mostly at the States
initiative. Instead a central policy towards probation must be formulated.

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CONCLUSION

The object of the criminal justice system is to reform the offender, and to ensure the society its
security, and the security of its people by taking steps against the offender. It is thus a
correctional measure. This purpose is not fulfilled only by incarceration, other alternative
measures like parole, admonition with fine and probation fulfill the purpose equally well.

The benefit of Probation can also be usefully applied to cases where persons on account of
family discord, destitution, loss of near relatives, or other causes of like nature, attempt to put an
end to their own lives.

Its aim is to reform the offender and to make him see the right path. This can be achieved as has
been said previously, not only by legislative action but also by sincerity on the part of the
administration. In some parts of the country it is being implemented in the right spirit.

The success of probation is entirely in the hands of the State Government and the resources it
allots to the programmers. Resources are needed to employ trained probation officers, to set up
homes for those on probation and also for their training besides others.

Thus while concluding it can be said that the concept of Probation would be effective only where
the judiciary and the administration work together there must be a common understanding
between the Magistrate (or) Judge and the Probation Officer. Probation would be effective only
when there is a sincere attempt made to implement it. It would be of great benefit for a country
like India, where the jails are often overcrowded, with frequent human rights violations which
would harden the human inside a person. Probation is an affirmation of the human inside every
being and it must be given de importance.

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