RELEASE ON ADMONITION AND PROBATION ON BASIS

OF GOOD CONDUCT

CODE OF CRIMINIAL PROCEDURE II

FACULTY OF LAW
JAMIA MILLIA ISLAMIA

SUBMITTED TO: SUBMITTED BY:

DR. ASAD MALIK IRSHAD AHMED

IX SEMESTER

SEC B
 CODE OF CRIMINAL PROCEDURE

TABLE OF CONTENTS

1. Acknowledgement.
2. Introduction.
3. Meaning and Object of Probation.
4. Law of Probation in India.
5. Power of Court to Release Certain Offenders.
5.1 Release on Admonition.
5.2 Release on Probation of Good Conduct.
6. Benefit of Probation when to be Granted..
7. Procedure of Release on Probation.
8. Procedure when Offender Breaches Conditions of
Probation.
9. Benefits of Release on Probation.
10. Judgements on Admonition and Probation.

11. Conclusion.

1|P a g e
 CODE OF CRIMINAL PROCEDURE

ACKNOWLEDGEMENT

I would like to express profound gratitude to Dr. ASAD MALIK for his
invaluable support, encouragement, supervision, and useful
suggestions throughout this project work. His moral support and
continuous guidance enabled me to complete my work successfully.

I am thankful and indebted to all those who helped me directly or

indirectly in completion of this project report.

2|P a g e
 CODE OF CRIMINAL PROCEDURE

INTRODUCTION

Mahatma Gandhi once said, "Hate the crime not the criminal". This means that
we need to eliminate crime and eliminating criminals is not the way to do it.
While it is true that punishment gives a sense of satisfaction to the victims and to
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.

One way to counter this problem is to provide opportunities and guidance to

young and first time offenders instead of committing them to jails. The idea
behind such treatment is that, normally, human beings do not resort to crime
unless they are forced due exceptional circumstances. If we want to reduce crime,
we should make sure that chance criminals are given an opportunity to get
reformed instead of turning into hardened criminals. This is the aim behind
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.
3|P a g e
 CODE OF CRIMINAL PROCEDURE

MEANING AND OBJECT 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. Imprisonment decreases his
capacity to readjust to the normal society after the release and association with
professional delinquents often has undesired effects.

Probation has been the most frequently used alternative to imprisonment and
also as a rehabilitative methodi0. During probation, constant, judicious and
helpful supervision not amounting to undue annoyance is imperative. Probation
seeks to reconcile the conflicting theories of 'punitive reaction' and 'treatment
reaction' to crime. The suspension of sentence under probation serves a dual
purpose of deterrence as well as reformation. It helps in the reformation of the
offender by extending every possible assistance and guidance to him, while at the
same time the threat of being subjected to unexecuted sentence keeps him
deterred from indulging in delinquent acts. The system is useful to the society in
general and the offender in particular. At the same time, it enables the probation
officers to get a deep insight into the problems of criminals.

The object of probation is the protection of society by preventing the crime

through rehabilitation of the offender without curbing his freedom.1 It shifts the
focus of criminal justice from crime to the criminal by replacing punitive approach

1
Gurpal Singh, "Probation of offenders Act in retrospect and prospect with special reference to Punjab", in K. D.
Guar (ed.) Criminal Law and Criminology (20021, p.899

4|P a g e
 CODE OF CRIMINAL PROCEDURE

with reformatory one. It is the result of the recognition of the principle that the
purpose of criminal law is more to reform the criminal than to punish him.2

The object of probation has been laid down in the judgment of Justice Horwill in
In re B. Titus - 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 ignorance or
inadvertence or the bad influence of others and who, but for such lapses, might
be expected to make good citizens. In such cases, a term of imprisonment may
have the very opposite effect to that for which it was intended. Such persons
would be sufficiently punished by the shame of having committed a crime and by
the mental agony and disgrace that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some
crimes are so abhorrent and some criminals are so unrepentant that it is best to
punish them so that the price of committing the crime keeps them from
committing it again. For some of them, there is no hope for reform, and it is best
to protect the society from them by locking them away for life.

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

2
Rattanlal v. State of Punjab, A. I. R 1 965 SC 444

5|P a g e
 CODE OF CRIMINAL PROCEDURE

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.

6|P a g e
 CODE OF CRIMINAL PROCEDURE

LAW OF PROBATION IN INDIA

Section 562 of the Code of 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.

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.

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

(1) When any person not under twenty-one years of age is convicted of an
offence punishable with fine only or with imprisonment for a term of seven years
or less, or when any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or imprisonment for life, and
no previous conviction is proved against the offender, if it appears to the Court
before which he is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be released on probation
of good conduct, the Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering into a bond, with or

7|P a g e
 CODE OF CRIMINAL PROCEDURE

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. Such a release is permissible only if
the following conditions are satisfied:

 There is no previous conviction proved against the offender.

 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.

 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.

Section 4 of the Act provides for probation.

Section 4 : Power of Court to release certain offenders on probation of good
conduct-
(1) When any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the Court by which the person
is found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the 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

8|P a g e
 CODE OF CRIMINAL PROCEDURE

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.

Section 6 of the same Act lays special onus on the judge to give reasons as to why
probation is not awarded for a person below 21 years of age. The Court is also to
call for a report from the probation officer before deciding to not grant probation.

The provision under the Code and the Act are similar, as they share a common
intent, that, punishment ought not to be merely the prevention of offences but
also the reformation of the offender. Punishment would indeed be a greater evil
if its effect in a given case is likely to result in hardening the offender into
repetition of the crime with the possibility of irreparable injury to the
complainant instead of improving the offender. Yet there are a few differences,
which have been enumerated below.

S.4 of Probation of Offenders Act and S.360 of The Cr.P.C.

According to S.4 Probation of Offenders Act- Any person may be released on

probation, if he has not committed an offence punishable with death or
imprisonment for life. (No distinction is made on ground of sex or age). Any
magistrate may pass an order under this section. Magistrate of the third class or
of the second class not specifically empowered by the state government had to
submit the proceeding to Magistrates of the first class or Sub-Divisional

9|P a g e
 CODE OF CRIMINAL PROCEDURE

magistrates. Supervision order may be passed directing that the offender shall
remain under the supervision of a Probation Officer

According to S.360 of Cr.P.C .-Any person not under 21 years of age, if convicted
of an offence punishable with imprisonment for not more than 7 years or when
any person under 21 years of age or any woman is convicted of an offence not
punishable with death or imprisonment for life may be released on probation. It is
not necessary that the person must be a first offender. This section applies only
when no previous conviction is proved against the offender.

Besides these two enactments, the Juvenile Justice (Care and Protection of
Children) Act, 2000 also provides for the release of children who have committed
offences to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit
person executing a bond, with or without surety, or any fit institution as the
Board may require, for the good behavior and well-being of the juvenile for any
period not exceeding three years.

10 | P a g e
 CODE OF CRIMINAL PROCEDURE

POWER OF COURT TO RELEASE CERTAIN OFFENDERS

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

 Release after Admonishing the person, which is provided in Section 3,

 Release on probation of good conduct, which is provided in Section 4.

1. RELEASE ON ADMONITION
Admonition is a warning given to the accused that he should not repeat the
offence again. It is applicable only to first offenders after conviction and without
passing a sentence. The significance of this mode of dealing with the offender is
that: (a) It gives the accused a chance to change his mode of thinking, living and
behavior patterns and to rehabilitate him and; (b) It prevents the association of
the first offender with hardened criminals.

Admonition cannot be claimed as a matter of right. Admonition is very useful and

pragmatic. It is granted after taking into account the trial nature of the offence,
the circumstances of the case, and the age, character, physical and mental
condition of the offender or any other extenuating circumstances under which
the offence was committed.

The provisions relating to the release of the offender after admonition is

contained in Section 360(3) of the Criminal Procedure Code, 1973 and in Section
321 of the Probation Offenders Act, 1958. Section 3 of the Probation of Offenders
Act 1958 is wider in its scope than sub section (3) of 360 of Code of Criminal
Procedure.

11 | P a g e
 CODE OF CRIMINAL PROCEDURE

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 if the offence is punishable under any of the Sections
379, 380, 381, 404, and 420.

2. The offender does not have any prior convictions.

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

Under section 12 of the probation of offenders Act 1958, a person found guilty of
an offence and released on due admonition shall not suffer disqualification
attached to a conviction of an offence. By this section, the stigma attached to the
offence is taken away and the rehabilitation and re-socialisation of the offender is
given importance.

12 | P a g e
 CODE OF CRIMINAL PROCEDURE

2. RELEASE ON PROBATION OF GOOD CONDUCT

Probation protects a person from launching into a career of crime, thus becoming
a recidivist. If he is set at liberty without protection or surveillance, he will be
inclined to erroneously feel that his wrongful conduct is acceptable to normal
society and thus he keeps on repeating the same conduct without any notion to
improve it by good behavior.

The psychological fear of punishment in case of violation of the law, keeps the
offender deterred from law breaking during the period of his probation and thus
indirectly prevent him from adopting a revengeful attitude towards the society.

The intention of the legislature in passing probation laws is to give offenders a

chance of reformation which they would not get if sent to prison. Probation
avoids the shattering impact of imprisonment or incarceration on the personality
of offenders. Also it avoids stimulation of hatred for law-abiding society due to
imprisonment; it seeks to obviate the evils of institutional experience and thus
prevent the offender from contamination and conforming to a criminal career.
Moreover, sentencing an offender to imprisonment casts a stigma on his career
which makes it difficult for him to live in a free society after his release. The
probation obviously saves the offender from such stigmatization and prepares
him for an upright blotless life.

As per 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 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

13 | P a g e
 CODE OF CRIMINAL PROCEDURE

court may direct and in the meantime to keep the peace and be of good behavior.
The section further requires that the offender or his surety has a fixed place of
residence or regular occupation in a place where the court exercises jurisdiction.

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

The court may also require the offender to remain under the supervision of a
probation officer during certain period, if it thinks that it is in the interests of the
offender and of the public. It can also impose appropriate conditions which might
be required for such supervision. In case the court does specify such conditional
release, it must require the offender has to enter into a bond, with or without
sureties, enumerating the conditions. The conditions may relate to place of
residence, abstention from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

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

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

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

14 | P a g e
 CODE OF CRIMINAL PROCEDURE

BENEFIT OF PROBATION WHEN TO 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.

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 Bihar3 , 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
3 AIR 1972 SC.

15 | P a g e
 CODE OF CRIMINAL PROCEDURE

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
Punjab, 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 Maharashtra,4 AIR 1976,

the appellant was below 21 years of age. The appellant was at one time a well
known child film actor and won several awards for acting in films. Subsequently
he fell 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

4 AIR 1976 SC .

16 | P a g e
 CODE OF CRIMINAL PROCEDURE

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 Administration,5 1971, 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.

5 AIR 1971 SC.

17 | P a g e
 CODE OF CRIMINAL PROCEDURE

PROCEDURE FOR RELEASE ON PROBATION

Section 4(2) and Section. 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.

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.6

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.

6 https://www.revisor.leg.state.mn.us/status.

18 | P a g e
 CODE OF CRIMINAL PROCEDURE

The 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

19 | P a g e
 CODE OF CRIMINAL PROCEDURE

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 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.7

7 Ahmad Siddiqui – Criminology, chapter Probation

20 | P a g e
 CODE OF CRIMINAL PROCEDURE

PROCEDURE WHEN OFFENDER BREACHES CONDITIONS

OF PROBATION
As per Section 9, if the court which passes an order under section 4 in respect of
an offender or any court which could have dealt with the offender in respect of
his original 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.

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.

21 | P a g e
 CODE OF CRIMINAL PROCEDURE

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.

22 | P a g e
 CODE OF CRIMINAL PROCEDURE

BENEFITS OF RELEASE ON PROBATION

Probation keeps the offender away from the criminal world. Further, the fear of
punishment in case of violation of probation law has a psychological effect on the
offender. It deters him from law breaking during the period of probation. Thus
probation indirectly prevents an offender from adopting a revengeful attitude
towards the society. Moreover, sentencing an offender to a term of imprisonment
caries with it a stigma, which makes his rehabilitation in society difficult. The
release of the offender on probation saves him from stigmatization and thus
prepares him for an upright living. The shame of going through a trial process
would have sufficiently chastised him. According to the labeling theory, a
stigmatizing label once applied, is very likely to cause further deviance or create
the deviance. People tend to conform to the label even when they didn't set out
that way.

Probation seeks to socialize the criminal, by training him to take up an earning

activity and thus enables him to pick up those life-habits, which are necessary for
a law-abiding member of the community. This inculcates a sense of self-
sufficiency, self-control and self-confidence in him, which are undoubtedly the
essential attributes of a free-life. The Probation Officer would guide the offender
to rehabilitate himself and also try and wean him away from such criminal
tendencies.

23 | P a g e
 CODE OF CRIMINAL PROCEDURE

Before the implementation of probation law, the courts were often confronted
with the problem of disposing of the cases of persons who were charged with
neglect of their family. In such cases there was no alternative but to send them to
prison, which was an unnecessary burden on the State exchequer. With the
introduction of probation as a method of reformative justice, the courts can now
admit such offenders to probation where they are handled by the competent
probation officers who impress upon them the need to work industriously and
avoid shirking their family responsibilities.

An analysis of crime statistics would show that a large segment of offenders

consists of the poor, the illiterate and the unskilled. Such offenders are seen to be
victimized twice: once, when they are denied of their basic human needs in open
society and forced to live in a sub-culture of social marginality, and, again, when
they are grinded in the mill of criminal justice for having infringed the law.
Probation would thus be an effective means to deliver justice to them, they would
not be incarcerated and also they would be trained which would improve their
life later.

The society is also served. The object of society that all its members playing a
positive role by seeking their self-rehabilitation is achieved by the probation
system, it is indeed an effective method of preserving social solidarity by keeping
the law-breakers well under control. Also, during the probation period, the
offender is sent to various educational, vocational and industrial institutions
where he is trained for a profession which may help him in securing a livelihood
for himself after he is finally released and thus lead an absolutely upright life. And

24 | P a g e
 CODE OF CRIMINAL PROCEDURE

whatever work an offender is doing as a probationer, he is contributing to the

national economy. Thus, he no longer remains a burden on the society.

During the term of probation, the offender is sent to various educational,

vocational and industrial institutions where he is trained for a profession which
may help him to secure work after his final release and lead an honest and upright
life.

From the financial point of view, probation can be regarded as the best
correctional measure. The state is relieved of the expense of feeding and
protecting prisoners in jails. Whatever works an offender is doing as a probationer
he is contributing to our national economy and he no more remains a burden to
the public exchequer.

Custodial treatment removes the offender from his family and community and
suspends his social and economic obligations to them. He becomes indeed a
burden upon society. The probation exacts from the offender a contribution
within the limits of his capacity to the well being of others whether it is through
his useful employment in the community or through his participation in the life of
the family or other social group.8

Further, correctional task of probation staff requires closer contact with inmates
during his period of probation. This helps the probation supervisor to get a deeper
insight into the real causes of crime and suggests remedies for their eradication.

8 Report of the Departmental Committee on the Probation service (Morrison Committee) 1650 (t962) p.'t3-16.

25 | P a g e
 CODE OF CRIMINAL PROCEDURE

JUDGEMENTS ON PROBATION AND ADMONITION

In Keshav Sitaram Sali v. State of Maharashtra 9, The Hon’ble Apex Court

held that in a case of petty theft the High Court should have extended the benefit
of either section 360 of the Code of Criminal Procedure or sections 3 and 4 of the
Probation of Offenders Act to the appellant instead of imposing a sentence of fine
on him.

In Basikesan v. State of Orissa,10 it was considered that a youth of 20 years

was found guilty of an offence punishable under section 380 of Indian Penal Code,
1860 and no previous conviction was proved against him. It was held by the court
that the offence committed by the accused was not out of deliberate preparation
or design but it was a fit case for application of section 3 and he be released after
due admonition;

In the case of Ahmed v. State of Rajasthan,11 it was observed that the

benefit of this Act cannot be extended to a person who has indulged in an act
which has resulted into an explosive situation leading to possibilities of communal
tension;

In Sunna v. State12 the accused aged twenty years was found guilty of an
offence under section 380, I.P.C. for committing theft of a bicycle and some
clothes. The Court ordered his release after admonition under Section 3 of the

9 AIR 1983 SC 291

10
AIR 1967 Ori 4,
11
AIR 1967 Raj 190,
12
AIR 1967 SC 4

26 | P a g e
 CODE OF CRIMINAL PROCEDURE

Probation of Offenders Act, 1958 because there was no previous conviction of the
accused and the theft was committed due to sudden temptation without any
premeditation.

In Devki v. State of Haryana13, the Supreme Court refused to extend the

benefit of Probation of Offenders Act to anti-social specialist criminal who has
shown sufficient expertise in the art of abduction, seduction and sale of girls to
others who offer tempting price and sentenced to three years rigorous
imprisonment.

In Dalbir Singh v. State of Haryana,14 it was held that if the court forms the
opinion that it is expedient to release the offender on probation for his good
conduct regard being had to the circumstances of the case. One of the
circumstances which cannot be sidelined in forming the said opinion is “the
nature of the offence”. Thus section 4 can be resorted to when the court
considers the circumstances of the case, particularly the “nature of the offence”
and the court forms its opinion that it is suitable and appropriate for
accomplishing a specified object that the offender can be released on probation
of good conduct.

In Phul Singh v. State of Haryana,15 the court observed: The provision of

this section should not be mistaken as undue leniency not should it be applied
leniently in undeserving cases where the offender in his early twenties,
committed a reprehensible offence of rape on his neighbor’s wife, the court

13
AIR 1979 SC 948
14 AIR 2000 SC 1677.
15
AIR 1980 SC 249.

27 | P a g e
 CODE OF CRIMINAL PROCEDURE

refused to release him on probation and convicted him in view of the heinous
nature of the crime.

In State of Maharashtra v. Natverlal,16 the Supreme Court has declined to

accord to the accused found guilty of gold smuggling, the benefit of Probation of
Offenders Act because smuggling of gold not only affects public revenue and
public economy, but often escapes detection;

In Daulat Ram v. State of Haryana17, it was observed by SC that the object

of section 6 is to ensure that juvenile offenders are not sent to jail for offences
which are not so serious as to warrant imprisonment for life, with a view to
prevent them from contamination due to contact with hardened criminals of the
jail. Therefore, the provision should be liberally construed keeping in view the
spirit embodied therein.

In Abdul Qayum v. State of Bihar,18 the appellant was only 16 year of age at
the time of his conviction for the offence of the theft of Rs. 56/- which he had
committed by pick repeating. He was given six month's rigorous imprisonment
and a probation order was refused in spite of the fact that the probation officer
had recommended it. The appeal and the revision petition having been rejected
by the Patna High court. The appellant finally came to supreme court which
upheld the appeal and divested the trial court to place him on probation.

16 AIR 1980 SC 593.

17
AIR 1972 SC 2434
18
AIR 1972 SC 21

28 | P a g e
 CODE OF CRIMINAL PROCEDURE

In Ratanlal v. State of Punjab,19 Subba Rao, J. (as he then was) speaking for
the majority observed that the Probation of Offenders Act, "is a milestone in the
progress of the modern liberal trend of reform in the field of penology. It is the
result of the recognition of the doctrine that the object of Criminal Law is more to
reform the individual offender that to punish him."

In Jugal Kishore Prasad v. State of Bihar, 20 the Supreme Court (speaking

through Khanna, J.) 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 recognises that no one is a born criminal and that a good many
crimes are the product of socio-economic milieu."

19 AIR 1965 SC 444

20
1973 SCR (1) 875

29 | P a g e
 CODE OF CRIMINAL PROCEDURE

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 programmes. 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.

30 | P a g e
 CODE OF CRIMINAL PROCEDURE

31 | P a g e