DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISHAKHAPATNAM, ANDHRA PRADESH

TITLE OF PROJECT

PROBATION IN ECONOMIC OFFENCES

SUBJECT

CRIMINAL PROCEDURE CODE

NAME OF FACULTY

ASST. PROFESSOR SOMA BATTACHARJYA

NAME OF CANDIDATE

KARTIK BHARGAVA

ROLL NO.: 2018044

SEMESTER: 4TH SEMESTER

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 ACKNOWLEDGEMENT

I would like to sincerely extend my heartful gratitude to our respected Assistant Professor Soma
Battacharjya madam for giving me a wonderful opportunity to research on the topic
“PROBATION IN ECONOMIC OFFENCES”. I bestowed my complete attention on the
allotted topic and researched on this project to the best of my efforts, in order to elucidate and
present the given topic in a lucid way.

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 SYNOPSIS

TITLE OF THE PROJECT:

PROBATION IN ECONOMIC OFFENCES

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, especially 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
mature. They get influenced in the conflict with the law. This is true even more with young
criminals, whose minds are not fully 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 what the objective of probation laws is throughout the globe. The earlier penological
approach held imprisonment, that is, custodial measures to be the only way to curb crime. But
the modern penological approach has ushered in new forms of sentencing whereby the needs of
the community are balanced with the best interests of the accused: compensation, release on
admonition, probation, imposition of fines, community service is few such techniques used.
Through this study, we have shown how benefit of probation is granted in economic offences?

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RESEARCH QUESTIONS:

1. Whether a person guilty of committing an economic offence is granted benefit of

probation?

2. Whether, the same conditions that are followed while granting the benefit of probation in
any non-cognizable case can be applied while granting probation in any case where an
economic offence has been committed.

LITERATURE REVIEW:

1. Code of criminal procedure, 1973

2. 47th law commission report

3. Santhanam committee report

4. Dr. N.V. Paranjape, criminology and penology

5. Criminal procedure by K.N. Chandrasekharan pillai

6. http://www.jstor.org/

7. www.indiankanoon.com

8. www.heinonline.com

9. www.manupatra.com

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OBJECTIVE OF STUDY:

 To study the exceptional circumstances where the offender is granted the benefit of
probation in economic offences.

 To study the relation between section 360 of code of criminal procedure and probation of
offenders act, 1958.

 To find out why certain acts are not governed under probation of offenders act, 1958.

RESEARCH METHODOLOGY:

This is a doctrinal research and materials collected are secondary data.

SCOPE OF STUDY:

To study the law of probation in India and how it is implemented while granting the benefit of
probation to an offender who has committed an economic offence.

SIGNIFICANCE OF STUDY:

 To understand the role of courts, probation officer while granting the benefit of
probation.

 To understand why probation in economic offences is granted only in exceptional cases.

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TABLE OF CONTENTS:

1. Synopsis………………………………………………………………………………05

2. What is probation?........................................................................................................07

3. Object of probation……………………………………………………………………08

4. Socio-economic offences……………………………………………………………..09

5. Law of probation in India…………………………………………………………….12

6. Power of court to release certain offenders…………………………………………..15

7. Benefit of probation when to be granted……………………………………………..18

8. Probation in public welfare offences and economic offences………………………..20

9. Cases where benefit of probation is provided to accused committing economic

offences........................................................................................................................26

10. Conclusion…………………………………………………………………………...27

11. Bibliography…………………………………………………………………………28

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 WHAT IS 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.

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.
In this paper, the focus is on the legislative and administrative aspects of probation, and means
by which probation may be made more effective in India.

“Probo” is a latin word, the meaning of which is “I prove my worth” i.e. to see whether he can
live in a free society without breaking the law. “Probatio” means “test on approval”. Webster
dictionary meaning of Probation is the act of proving, proof, any proceeding designed to
ascertain character .Thus probation means a period of proving or trial. The offender has to prove
that he is worthy of probation. 1

Probation is a socialized penal device an extramural alternative of institutionalization and has

come about as the result of modification over a period of time of doctrine of deterrence into the

1
Dr. N.V. Paranjape, CRIMINOLOGY AND PENOLOGY, 10th Ed. reprinted 2000, pg 23-24, (Central Law
Publications, Allahabad, 2001).

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principle of reformation, a development that paved the way to the introduction of clinical
approach and the principle of individualization in the handling of offenders.

Probation means enlarging a person subject to commit meant by suspension of sentence, during
the regularity of conduct, and imposing conditions and on default thereof arresting and
committing him until imprisonment is served or the judgment is satisfied 2. It is a substitute for
imprisonment, a conditional suspension of sentence.3

OBJECT OF PROBATION

i) Object of probation is to bring law breakers and anti-social persons into willing cooperation
with the community of which he is a member , thus giving him security which he needs and
society protection against his attacks on person or property .

ii) The function of probation is to effect improvement in character of the offender and permanent
rehabilitation and reformation of the offender.

iii) Probation involves moulding of the individual’s habits in more constructive way.

iv) It is a substitute to imprisonment. Punishment will not serve the purpose in all cases of
offenders.

v) The object is that an accused person who is convicted of a crime should be given a chance of
reformation which he would lose by being incarcerated by prison.

2
Santis v. Esola, C C A Cal 50 F 2d 516.
3
People v. Robinsom 235 N.W .236 : 253 Mich 507.

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 SOCIO-ECONOMIC OFFENCES

The term “Socio-economic offences”, is used to denote all white-collar crimes, public welfare,
offences, economic offences including regulatory offences. So the Law Commission4 has rightly
viewed that socio-economic offences form intersecting circle with white-collar crimes and
offences of absolute liability. Characteristics of socio-economic offences according to Law
Commission5 are as follows:

1. Socio-economic criminal motive is greediness or ravenousness but not hate or lust,

2. Background of the crime is non-emotional,

3. Harm is not to an individual alone but to the whole society,

4. Act is wilful and deliberate,

5. Mode of operation of crime is through fraud, but not force, and

6. Absence of individual and social vengeance.

Likewise, types of socio-economic offences according to Law Commission6 are as follows:

1. Offences calculated to prevent or obstruct the economic development of the country,

2. Evasion of taxes,

3. Food and drugs adulteration,

4. Misappropriation and theft of public property and funds,

4
See generally Forty-seventh Law Commission Report (1972).
5
Id., P.2.
6
Id., P.3.

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5. Offences in the nature of breaches of contracts, resulting in the delivery of goods not
according to specification,

6. Black-marketing and hoarding,

7. Misuse of positions by public servants,

8. Trafficking in licences, permits, etc.

The Law Commission dealt in detail the question of effectively dealing with certain anti-social
and economic offences. In its “Report on the Trial and Punishment of Social and Economic
Offences”, they studied causes for defective enforcement like absence of legislative provisions,
absence of the relevant statutory notification, faulty investigation, lack of legal expertise,
procedural drawbacks, want of evidence and administrative difficulties and defects.7

The Commission suggested8 viz., stringent action, departure from conventional mens rea and
burden of proof doctrines, increase in minimum and maximum punishment, establishment of
special courts, appeal should from special court to High Court, mandatory imprisonment, need
for preventive detention, stoppage of business or cancellation of licence, probation.

Amendment of Sec.6 of probation of offenders Act, 1958 called for and constitutional
amendment enlarging the contents of Item 9 in List I, Schedule VII. The above Commission
made a remarkable contribution for the socio-economic offences. With these juristic and
authentic studies and opinions in the general background, now it is proposed to delve into the
socio-economic offence of corruption specifically.

7
Supra, n. 26 at pp.29-38.
8
Supra, n. 26 pp.115-162.

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Categorization of offences by Santhanam committee:

The above committee categorised offences broadly viz.,

(1) Offences calculated to prevent or obstruct the economic development of the country and
endanger, its economy,

(2) Evasion and avoidance of taxes lawfully imposed,

(3) misuse of their position by public servants,

(4) Adulteration of food stuffs and drugs,

(5) Profiteering, black-marketing and hoarding,

(6) Theft and misappropriation of public funds,

(7) Trafficking in licences, permits, etc.

The following are other economic offences mentioned by Santhanam Committee, viz... share-
pushing, malpractices in the share market and administration of companies, monopolistic
controls, under-invoicing or over-invoicing, evasion of economic laws, bribery and corruption,
election offences and malpractices.

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 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 Section 360 of The Code of Criminal
Procedure, 19749. It reads as follows:- 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 behaviour.

S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of
probation.10 The object of probation has been laid down in the judgment of Justice Horwill in In
re B. Titus11 : Section 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.

9
Code of Criminal Procedure, 1973.
10
Section 361 of Code of Criminal Procedure, 1973.
11
AIR 1941 Mad 720

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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 Section 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 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.

Section4 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

13
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 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 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

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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.

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.

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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.

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 years 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.

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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 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

17
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.

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

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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 Bihar ,
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."

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 Probation in public welfare offences and economic offences

The Judiciary has taken shifting stands in administering probation law to public welfare offences
such as food adulteration, smuggling and violation of customs and excise laws, etc. A
chronological survey of the cases relating to public welfare offences would bear testimony to the
fact that till early seventies the courts responded favourably to the inclusion of these offences
within the purview of the probation law and were quite liberal in admitting such offenders to the
benefit of probation regardless of the age and nature of the offence. This trend is clearly
discernible from the case law discussed in the succeeding pages.

In public Prosecutor V. Nalan Suryanarayanamurthy12, the High Court of Andhra Pradesh

taking a strict view held that in a case where the activity of the accused was distinctly anti-social,
it would not be expedient to release the offender on probation. The accused in this case was
found guilty of the offence under Section 7 read with Section 16 of the prevention of food
Adulteration Act, 1954. The Supreme Court took a firm stand in disallowing the benefit of
probation to cases involving smuggling activities. Thus in Maharasthra V. Natwar Lal13, the
Court refused to extend the benefit of probation Act because smuggling of gold not only affects
public revenue and public economy but it is also a menace to society. The above contention also
finds support in the Supreme Court decision in State of Maharashtra V. Kapoor Chand
Kesarmal Jain14. In this case the appellant aged 24 years at the time of occurrence of crime, was
tried for the offence of smuggling of gold and convicted by the trial court. On appeal, the High
Court ordered the appellant to be released on probation for the reason that the gold recovered
from his possession had already been confiscated and that he had stood trial for a long period of
more than seven years and that he was financially not in a position to pay the fine imposed on
him. The State of Maharashtra however went in appeal to the Supreme Court against this
judgment of the High Court. Allowing the appeal, the Supreme Court observed that keeping in
view the nature of the offence, the character of the accused and the circumstances under which
the offence was committed it was not desirable to allow the benefit of probation law to such
professional offenders. An appraisal of the aforesaid case involving socio economic offences

12
AIR 1972 (2), APLJ 313.
13
AIR 1980, SC 593.
14
AIR 1981, SC 927.

20
would reveal a remarkable change in the attitude of courts towards these crimes. The courts,
while accepting in principle the need for liberal application of probation law, have not lost sight
of the dangers involved in mild treatment of socio-economic offenders. These offenders in
matters of punishment because of peculiar nature of their offence and the consequence flowing
therefrom. These offences being injurious to public at large, need to be tackled sternly.
Commenting on this aspect, Mr. Justice V.R. Krishna Iyer, the former Judge of the Supreme
Court of India observed: "Economic offences are often subtle murders practised on the
community, sabotaging the national economy. They have to be tackled with a new seriousness.

Application of the probation of offenders act is barred in some cases

1. The prevention of food adulteration act, 1954

2. The narcotic drugs and psychotropic substances act, 1985

3. The scheduled casts and scheduled tribes (prevention of atrocities) act, 1989

4. The central excise act, 1944

5. Prevention of corruption act, 1988

Application of act is barred in some cases:

Some enactments expressly bar or restrict the applicability of this Act or/and Sec. 360 of the
Code of Criminal Procedure, some such enactments are enumerated below:

The Prevention of Food Adulteration Act, 1954:

There was divergence of opinion on the point as to whether the provisions of the Probation of
Offenders Act,1958 was applicable to cases under the Prevention of Food Adulteration Act

21
between the various High Courts. The question came up for consideration before the Supreme
Court in the under-noted case15 and it held:

“The provisions of Probation of Offenders Act point to the conclusion that their operation is not
excluded in the case of persons found guilty of offences under the Prevention of Food
Adulteration Act. Assuming that there was reasonable doubt or ambiguity, the principle to be
applied in construing a penal Act is that such doubt or ambiguity should be resolved in favour of
the person who would be liable to the penality.”

The Supreme Court in a later case, sounded a note of caution and observed:

“The benefit could be given of the provisions of the probation of offenders Act, 1958 to persons
who are found guilty of offences under the probation of offenders Act, 1958. However,
adulteration of food is a menace to public health. The act, 1958 has been enacted with the aim of
eradicating that antisocial evil and for ensuring purity in the articles of food. In view of the above
object of the Act, 1958 and the intention of the Legislature as revealed by the fact that a
minimum sentences of imprisonment for a period of six months and a fine or rupees one
thousand has been prescribed, the Court should not lightly resort to the provisions of the
probation of offenders Act, 1958 in the case of persons above 21 years of age found guilty of
offences under the Act, 1958.16

The central excise Act, 1944 Section 9-E of the central excise act, 1944 runs as follows:

“9-E. Application of Sec. 562 of the code of Criminal procedure, 1898 and of the probation of
offenders Act, 1958.-(1) Nothing contained in Sec. 562 of the offenders Act, 1958 (20 if 1958),
shall apply to a person convicted of an offence under this Act unless that person is under
eighteen years of age.”

The provisions of sub-section (1) shall have effect not withstanding anything contained in sub-
section (3) of Sec. 9.” Section 9-E was inserted by Customs Gold (Control) and Excises and Salt
(Amendment) Act, 1973 (36 or 1973). It clearly provides that the provisions of the probation of

15
Ishar Das v. State of Punjab. (1952) 2 Cr. L.J. 874.
16
Ram Praksh v. State of Himachal Pradesh, A.I.R. 1973 S.C. 780.

22
offenders Act, 1958 are applicable only to minors (under eighteen years of age) on their
convicting of an offence under the central excise Act, 1944. The benefit of probation, therefore,
cannot be extended to major accused on his conviction of an offence under the Central Excise
Act.

Prevention of corruption Act, 1988.- Section 18 of the probation of offenders Act, 1958 runs
as under: “18. Saving of operation of certain enactments. – Nothing in this act shall affect the
provisions of Sec. 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of
Sec. 5 of the Prevention of Corruption Act, 1947 (2 or 1947) or of any law in force in any state
relating to juvenile offenders or brutal schools”. At the time of the commencement of the
probation of offender Act, 1958 the old prevention of corruption Act, 1947 was in force, so a
reference to that Act in Sec. 18 as reproduced above was natural. The prevention of corruption
Act, 1947 was replaced by the Prevention of Corruption Act, 1988 without any consequential
amendment in Sec. 18 as stated above. Section 8 of the General Clauses Act, 1897 comes into
play in such situation after examining the provisions of Sec. 18 and 19 of the probation of
offenders Act. The Apex Court has held that reference to sec. 562 of the old code of Criminal
Procedure in Sec. 19 of the Probation of Offenders Act, 1958 and Sec. 5 (2) of the Prevention of
corruption Act, 1947 and in Sec. 18 of the Probation of Offenders Act, 1958, respectively have to
be inevitably read as references to their corresponding provisions in the newly enacted code and
the probation of offenders Act, 1958. Consequently on the conviction of a person under Sec. 13
(2) of the Probation of offenders Act, 1958 the benefits enumerated under the Probation of
Offenders Act, 1958 cannot be extended at all in view of the mandate contained in Sec. 18 of the
said Act.

Probation can however, be granted in a case punishable under Sec. 15 of the prevention of
corruption Act, 1988.

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Offences under Drugs and Cosmetics Act:

It is true that offences under the Drugs and Cosmetics Act are menace to public health. The Act
takes a serious note of the widespread anti-social evil practised by some people in infringing the
provisions of the Act and it was in this view of the matter that the Legislature prescribed the
minimum imprisonment for one year which can extend upto ten years as contemplated by Sec.
27 (a) of the Act. The Act was already on the Statute Book when the Probation of Offenders Act
was passed in 1958. The Legislature at the time of passing the Probation of Offenders Act was
aware of the provisions of Sec. 27 (a) (ii) of the Drugs and Cosmetics Act. The Legislature in its
wisdom chose not to apply the provisions of the Probation of Offenders Act in respect of cases
enumerated in Sec. 18 of the Probation of Offenders Act and in a case where the offender was
found guilty of having committed an offence punishable with death or transportation for life. In
the premises it was held that the provisions of Sec. 4 of the Probation of Offenders Act were
available to the Court when the Court thought that instead of sentencing the offender to
punishment it was expedient to release on probation of good conduct on entering into a bond.17

In the instant case also the accused was convicted for offence under Drugs and Cosmetics Act.
He faced trial for 15 years. Consequently, granting the benefit of Probation of Offenders Act,
1958, the substantive sentence awarded to the petitioner was set aside by the High Court and
instead he was ordered to be released on probation for a period of one year of his entering into a
bond in the sum of Rs.5000 with one surety in the like amount to the satisfaction of the Trial
Court. The petitioner was also ordered to pay a sum of Rs. 5000/- as costs of the proceedings.
The bonds to be submitted would be without the supervision of Probation Officer. 18

17
State (Delhi Administration) v. Om Prakash, 1975 Cr. L.J. 177
18
Pawan Kumar Bansal v. State of Haryana, 2004 (2) R.C.R. (Cr.) 325

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Offences under (State) Excise Acts:

Dealing with a case under Karnataka Excise Act, Karnataka High Court held that there can
hardly be any doubt that despite the fact that a minimum sentence of three months' of Rigorous
Imprisonment and a fine of not less than Rs. 100 is prescribed by the Karnataka Excise Act for a
person found guilty of the offence under Sec. 32 of the Karnataka Excise Act, the Court can still
resort to the provisions of the Probation of Offenders Act, 1958, if the conditions required for the
application of those provisions exist.19

In a case of conviction under Sec. 61 (f) of the Tamil Nadu Excise Act, in regard to the question
sentence it was submitted that the accused was a first offender, that he was the only bread-winner
of his poor family and therefore, the Court may be pleased to invoke the provisions of the
Probation of Offenders Act, 1958. Having regard to this facts and circumstances of the case and
the submissions on his behalf, the Madras High Court set aside the sentence of imprisonment
imposed on him and instead directed that he be released under Sec. 4(1) of the Probation of
Offenders Act, 1958.20

Considering a case under Punjab Excise Act, Punjab High Court has held that the Probation of
Offenders Act, 1958 is meant for the offenders in whose case, there is likelihood of some
reformation but if the petitioner seemed to be dealing on a large scale in the anti-revenue and
illegal activity and a huge quantity of 144 bottles of denatured spirit was found in the possession
of the petitioners, it cannot be said that it is a fit case to release the petitioners under the
provisions of the Probation of Offenders Act, 1958.21

19
Rahmatulla v. State, 1978 Cr. L.J. 106
20
Oil, In re, 1976 Cr. L.J. 1339
21
Inderjit Diwan Chand v. State of Punjab, 1978 Cr. L.J. 1327

25
Offences under Gold Control Act and Central Excise Act:

The punishing provisions of the Gold Control Act and the Customs Act have been enacted with
the aim of eradicating the anti-social evil of smuggling gold into India. With that view deterrent
punishments are provided in both the Acts. Therefore, having regard to the nature of the offence
and the circumstances of the case, the Andhra Pradesh High Court did not consider it a fit case
where he accused should be given the benefit of the provisions of the Probation of Offenders
Act, 1958.

Cases where benefit of probation is provided to the accused committing economic offences

A five-Judge Bench of the Apex Court in Musa khan v. State of Maharashtra 22 held as under:

The Probation of Offenders Act is a social legislation, which is meant to reform juvenile
offenders so as to prevent them from becoming hardened criminals by providing an educative
and reformative treatment to them by the Government. Unfortunately, though the provisions
of Section 6 thereof are mandatory, the Courts do not appear to make wise use of these
provisions, which is necessary to protect the younger generation from becoming professional
criminals and therefore, a menace to the society".

In Ammini v. State of Kerala 23 the Kerala High Court held that the Abkari Act does not
contain any provision prohibiting the use of the probation principles to an offender convicted
under the provisions of that Act and directed the release of the accused therein, who was
convicted for the offence under Section 55 of the Abkari Act, invoking the provisions of
the Probation of Offenders Act

In Satar Masiah v. State24 the Delhi High Court held that the Probation of Offenders Act can
be applied to the persons convicted under the Punjab Excise Act and ordered to release the
accused therein, who was a young man with no prior shady antecedents.

In Inderjit v. State of Punjab25 a learned single Judge of Punjab and Haryana High Court held
that the Probation of Offenders Act is meant for the offenders in whose case, there is likelihood
of some reformation, but where the accused are found to be dealing on a large scale in the anti-
revenue and illegal activity, it is not a fit case to release the accused under the provisions of
the Probation of Offenders Act. The said case arose out a conviction under Sections 61, 63 and
75 of the Punjab Excise Act. From this decision, it is clear that the Probation of Offenders Act
22
AIR 1976 SC 2566
23
1981 Cri LJ 1170
24
1982 Cri LJ 2246
25
1976 Cri LJ 1327

26
can be applied to the excise offences, but when the seized quantity of liquor is large, then the Act
cannot be applied.

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. 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 the importance.

27
 BIBLIOGRAPHY

1. Code of criminal procedure, 1973

2. 47th law commission report

3. Santhanam committee report

4. Dr. N.V. Paranjape, criminology and penology

5. Criminal procedure by K.N. Chandrasekharan pillai

6. http://www.jstor.org/

7. www.indiankanoon.com

8. www.heinonline.com

9. www.manupatra.com

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