ARMY INSTITUTE OF LAW

Criminology

Submitted in partial fulfilment of the requirement for the degree of B.A L.L.B
fifth year 2020-21.

Compensation under Probation of Offender's

SUBMITTED TO SUBMITTED BY
Ms. Anmolpreet Kaur Ankesh Kumar
Roll No.-1654

ACKNOWLEDGEMENTS

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I would like to extend my gratitude to many people who helped to bring this Research Project
to fruition.

Firstly, I would like to thank Prof. Pradeep Kumar for providing me the opportunity to
prepare my project report on such a nice topic. I am so deeply grateful for his help,
professionalism, valuable guidance and all other kind of support throughout this project and
through my entire program of study that I do not have enough words to express my deep and
sincere appreciation.

I would also want to thank all my friends for giving me support. Without their passionate
participation and input, the project could not have been successfully completed. My thanks
also goes to the entire hostel for their numerous conversations, questions and help.

Finally, I must express my very profound gratitude to my parents for providing me with
unfailing support and continuous encouragement throughout my years of study and through
the process of researching and writing. This accomplishment would not have been possible
without them.

TABLE OF CONTENTS

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Sr. No. Chapter Page No.

1. Introduction 2

2. Historical Background 4-5

3. Overview 6-8

4. Compensation 9-10

5. Conclusion 11

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INTRODUCTION

The Reformative Theory of punishment as the name suggests aims at reforming or improving
the convict. It takes a humanistic approach to the idea of punishment. It has been criticised
repeatedly for being too passive in its understanding of ‘punishment’ and for concentrating
more on the convict than the victim. However, this theory maintains that even after an
individual commits a crime, he should still be treated as a human being.This theory takes into
account the other factors that might play a role in motivating him to commit a crime such as
poverty, unemployment, financial burden etc. It hopes to reform, or amend the individual so
as to give him a chance to re-integrate into society. He must be made aware of his mistakes
and must show repentance. He should not be locked away all his life for good. Hence, the
system of Probation.

The Concept of Probation

The word ‘Probation’ stems from the Latin word ‘Probo’ which translates to ‘I prove my
worth’ or ‘Probatio’ meaning ‘test of approval’. ‘Probation’ under the Webster Dictionary
means the act of proving, proof or any proceeding designed to ascertain character.

Probation is often misconstrued as Parole. However, the two terms while appearing similar,
hold very different meanings. Probation refers to the suspension of sentence and permission
to stay within the community under the guidance of a probation officer, while parole refers to
the early release of a convict before the expiry of the term of punishment. Probation is given
by the Court while Parole is given by a Parole Board, specially formed for the purpose.
Probation forms a substitute to imprisonment while for Parole, imprisonment is a pre-
requisite.

Probation should not be understood as a right, but a privilege given to a criminal convict.

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 HISTORICAL BACKGROUND
The statutory force of probation was strengthened by the recommendations of the Indian Jails
Committees Report1 (1919-1920). The Draft of the Probation of Offenders Bill was presented
by the Government in 1931. They then passed it on to the Provincial governments for their
perusal and feedback. However, the Provincial governments couldn’t give it its due attention
at the time. 3 years later, in 1934 the Indian Government gave a go ahead to the Provincial
Governments to make their own laws pertaining to probation as the chances of them enacting
one was slim.

The recommendations of the Indian Jails Committees did not go unnoticed and the
Government of Indiaon 18th November 1957presented the Bill on Probation ofOffenders in
the Lok Sabha and an amendment to the motion for consideration of the Bill was accepted.
Later that month, the Rajya Sabha discussed the motion and agreed to refer the Bill to the
Joint Committee of the Houses.

The Joint committee was subsequently formed and submitted its recommendations to the Lok
Sabha on February 25th 1958. This report2 formed the basis for the Bill that was later
introduced in the Parliament. The Probation of Offenders Act 1958 provides for the
appointment of Probation officers who would be required to give a ‘pre-sentence’ report to
the Magistrate and oversee the activities of the offender during the period of probations

Section 360 of the CrPChas now replaced Section 562 through the amendment in 1947. An
important thing to note is the fact that this section can only be applied when the offender is
convicted for the first time. This section doesn’t extend to habitual offenders.

Section 360 of the CrPC reads as follows.

1. Any person who is not below twenty-one years and is convicted of a crime for which
the punishment is imprisonment for seven years or is convicted for an offence
punishable with fine.
2. Or any person who is below twenty-one years or if any women convicted of an
offence not punishable with imprisonment of life or death and no previous conviction
is proved against the offender.

1
http://pcs.mp.gov.in/sites/default/files/Report%20of%20the%20%20Indian%20Jail%20Committee%2C
%201919-1920.pdf
2
https://eparlib.nic.in/bitstream/123456789/58440/1/jcb_02_1958_probation_offenders.pdf

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3. And appears before the court, regardless of the circumstances in which he has
committed the offence, the court might release the offender on the promise of good
conduct.

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 OVERVEIW
The aim of the Act is to reform the individual. The offender must be given an opportunity to
reflect on his actions and choose to willingly co-operate with the society through re-
integration.

Probation seeks to accomplish the rehabilitation of persons convicted of a crime by returning

One of the benefits on the Probationary approach is to encourage an improvement in

The object of Probation has been elucidated in the case of In re B. Titus4 by Justice Horwill
as follows:

‘It 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 forsuch
lapses, might be expected to make good citizens. In such cases, aterm of imprisonment may
have the very opposite effect to that for whichit was intended. Such persons would be
sufficiently punished by theshame of having committed a crime and by the mental agony
anddisgrace that a trial in a criminal court would involve.’

The 1958 Act was primarily enforced to provide for the release of offenders on probation or
after due admonition and formatters connected therewith5.

Some of the Salient Feature of the 1958 Act are as follows.

 The aim of the Act is to offer a chance of reformation to first time offenders and re-
integrate them into society.

3
Attorney General's Survey of Release Procedure, Vol II, 1939 Page 1
4
AIR 1941 Mad 720
5
The Probation of Offenders Act, 1958

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  It offers the privilege of Probation to offenders through a warning, or admonition for
offences provided under Sections 379, 380, 381, 404 and 420 of the IPC.
 This Act empowers the Court to free those prisoners on probation in good behaviour
if the crime supposedly perpetrated is not punishable by death or imprisonment for
life.
 The Act gives the Judge the right to modify the terms of the bail after a prisoner is
placed on probation with good behaviour and to prolong the probation period not to
exceed three years from the date of the initial order.
 The offender can be expected to pay compensation for the loss caused to the victim.
 The act applies to offenders under the age of 21, subject to punishment.
 The offender after being given probation stays under the supervision of a probation
officer who is to assist the Court in supervising the offender and guide him in gaining
suitable employment.

In this case of Jugal Kishore Prasad v. The State of Bihar 6, the Supreme Court stated that
the aim of the law is to deter the juvenile offenders from turning into obdurate criminals as a
result of their interaction with seasoned mature-age criminals in case the juvenile offenders
are sentenced to incarceration in jail. It is observed that the Act is in accordance with the
present trend of penology, which says that effect should be made with accordance to change
and remould the offender and not to retribute justice.

Section 37 deals with the power of court to release the offender after admonition. An
Admonition, in literal terms, means a firm warning or reprimand. In the case of Basikesan v.
The State of Orissa8a 20-year-old was found guilty of an offence under Section 380 of the
Indian Penal Code,1860. It was held that the youth had not committed the offence
deliberately and so the case must be applied for Section 3 of the Probation Act and be
released after admonition.

Section 49 talks about the release of the offender on the basis of good conduct. In the case of
Phul Singh v. the State of Haryana 10, the court held that the provision of Section 4 should
not be mistaken and applied easily in undeserving cases where a person in his early twenties

6
1972 AIR 2522
7
Probation of the Offenders Act,1958
8
AIR 1967 Ori 4
9
Probation of the Offenders Act,1958
10
AIR 1980 SC 249

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commits rape. The court, thus, refused the application of probation on such heinous nature of
crime and convicted the person.

Section 611 talks about the restriction on the imprisonment of offenders under twenty-one
years of age. In the case of Daulat Ram v. The State of Haryana12,it was held that the aim of
this Section was to protect the youth. The juvenile offenders would not be sent to jail if their
crime was not as serious as to punish them with life imprisonment or death. Therefore, the
provision should be liberally construed keeping in view the spirit embodied therein.

Section 7 of the Probation of the Offenders Act,1958 deals with the clause that the report of
the probating officer is kept confidential. No Probation Officer’s report is necessary to apply
Section 4 of the Probation of Offenders Act but such report is a must under Section 6 of
Probation of Offenders Act if the offender is under 21 years of age. However, if such a report
is available on the record, under Section 4 of the Act, the Court shall not ignore it and that the
Court shall take the report into consideration.

11
Probation of the Offenders Act,1958
12
1972 SC 2434

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 COMPENSATION
Compensation is a pecuniary remedy that is awarded to an individual who has sustained an
injury in order to replace the loss caused by such injury. The word ‘Compensation’ means to
expiate the loss suffered.13

Under the Probation of Offenders Act 1958, Section 5 provides for payment of compensation
by the offender. It is as follows.

Sec 5. Power of court to require released offenders to pay compensation and costs.

(1) 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.
(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in
accordance with the provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the offender is
prosecuted, shall take into account any amount paid or recovered as compensation
under sub-section (1) in awarding damages

Section 5 of the Probation of the Offenders Act, 1958 says that if any person is released under
Section 3 or Section 4 of this Act, even then the court might order:

 The offender to pay compensation to the victim for the loss or the injury occurred to
him. Or
 Cost of the proceeding as the court may think reasonable.

The Supreme Court in the case of Commandment 20 BK. ITB Police v. Sanjay Binjola 14,
held that it is a settled law that nobody can claim benefit under the Act as a matter of right.

It was observed inState of Sikkim v. Dorjee Sherpa And Ors15that the Court should not take
technical views in certain cases and should take into consideration some other aspects such as
possibility of losing the job, for invoking the provisions of Probation of Offenders Act even
13
https://blog.ipleaders.in/compensation-definition-law/#:~:text=Right%20to%20compensation%20under
%20the%20Indian%20Labour%20Laws,-By&text=The%20word%20'compensation'%20means%20to,As%20a
%20social%20insurance
14
AIR 2001 SC 2058
15
1998 CriLJ 2685

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in serious offences. It has further been contended that the Court should also take into
consideration that the convicts belonging to middle class families without any criminal
antecedent often become victim of circumstances because of undesirable company and other
evil influences available to such young generation.

Conclusion

The benefit of probation can 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.It
would be of great help to a country like India where the prisons are always overcrowded,
with regular abuses of human rights that will harden a person’s inside. Probation is the divine
affirmation inside every being and it has to be given importance. 

In order to accomplish the ultimate purpose of reclaiming all criminals back into organized
society, the reform and recovery process must be carried out in the sense of the current social
situation. Along with the juvenile justice system, probation has taken the human interests and
socio-economic issues underlying the principles of crime and punishment to the forefront. It
also helped to build positive views towards prisoners and expanded the role of enforcing
criminal justice beyond standard sentencing.

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