CRIMINAL PROCEDURE CODE

ASSIGNMENT

Topic: THE CONCEPT OF PROBATION in INDIA

Submitted By:

VATSAL GALA - A09 - 51001190017

Submitted To:

VANITA AGGARWAL

Semester IX

5th Year, BLS/LLB

Submitted On 15.09.2023
 ABSTRACT

The criminal justice system is slowly but gradually changing from being retributive to being
reformative. It is understood that frequently locking up first-time offenders doesn't help
because they might appear to be much more skilled criminals. At this point, the concept of
probation becomes essential. In a non-custodial sentence, the offender is permitted to return
back to society and search for a normal life. This article discusses the probationary
provisions of the Probation of Offenders Act and the Criminal Procedure Code. Conditions
for a probationer's release can be found in the relevant rules and regulations.

INTRODUCTION

Although punishment indeed makes victims and society feel better, it has been discovered
that most of the time punishment, especially imprisonment, does not truly reform the
offender. Often after being released from prison, a person returns to his earlier ways of
breaking the law. This is mostly true for young criminals whose minds have not fully formed.
As a result of their interactions with experienced offenders in jails, they get negatively
influenced.

Mahatma Gandhi once said, "Hate the crime, not the criminal. No one is born a criminal;
the society made them one" This quote means that no one is born with the status of a criminal,
one becomes a criminal due to certain circumstances and that they can be rectified. Thus, the
term Probation means a person, instead of spending time in jail, serves a time outside of
normal society subject to certain rules and regulations. He is also subject to the orders of
some authority. The object of probation is to reform a person. It helps him to learn some
skills whether vocational or professional, so that he can secure a normal life afterwards.

HISTORICAL DEVELOPMENT

Due to changes made to the criminal justice system, the idea of probation is now regarded
as a correctional strategy that first gained popularity in the late nineteenth century. The
separate customs of the common law and civil law were predecessors of probation. However,
the introduction of the juvenile justice system had a significant impact on the historical
evolution of the concept of probation.
There was no system for supervision, and the only magistrates having the authority to grant
probation were first-class magistrates. In 1934, the British government allowed provinces
(state governments) to pass their laws for probationary release. Such an Act was passed in
1936 in Madras and Madhya Pradesh, 1938 in Bombay and Uttar Pradesh, 1953 in
Hyderabad, and 1954 in West Bengal. All of these Acts, however, were only intended for the
probationary release of young offenders. The Probation of Offenders Act was passed in 1958,
beginning in the system in India. 1

LEGAL FRAMEWORK

The Probation of Offenders Act of 1958 (POA) is grounded in an individual-focused

approach to dealing with convicts, particularly young offenders, in a constructive manner.
The underlying belief is that young offenders can be prevented from becoming habitual
wrongdoers through the application of Probation. The Act is designed to facilitate the release
of offenders through probation or admonition while including all associated matters. It
comprises 19 sections and has extends to the whole of India.2 The primary objective of the
Act is to establish a rehabilitative framework for offenders, enabling their transformation
into productive and law-abiding members of society. Additionally, the Act lays down the
guidelines for probation and the appointment of probation officers.

Key Provisions of the Act Include:

Section 3 – Admonition: Admonition entails issuing a warning or reprimand. In this method

of release, the court reproaches the individual, endeavouring to appeal to their moral
conscience, ultimately granting them freedom. The conditions for release under this section
include:

1. The offense must carry a punishment of less than 2 years of imprisonment, a fine, or
both. Alternatively, if the offense falls under any of the Sections 379, 380, 381, 404,
and 420 of the Indian Penal Code, 1860; and

2. The offender should not have any previous convictions.

1 DN Ray, “The Probation of Offenders Act, 1958: A Forgotten Necessity” Bar and Bench (2020).

2 The Probation of Offenders Act, 1958 (Act 20 of 1958), s. 1

If these conditions are met, the court must consider the nature of the crime, as well as the
offender's background and character, and may opt to release the individual after delivering a
warning.

In Basikesan v. State of Orissa3, 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.

Section 4 – Probation of Good Conduct: This provision pertains to the release of an

offender based on their exemplary behaviour. It provides a general guideline to the court for
determining when to grant the privilege of probation and when not to. The phrase "if the
court is of the opinion" essentially confers discretionary authority upon the court in this
matter. The scope of Section 4 within the Act is quite extensive. It is applicable to individuals
found guilty of offenses not punishable by death or life imprisonment. Additionally, this
section mandates that the offender or their guarantor has a fixed place of residence or regular
employment within the court's jurisdiction.

Furthermore, prior to issuing any such order, the court is required to take into account the
probation officer's report related to the case, if available. However, this step is not obligatory.

In Smt. Devki v. State of Haryana4, it was held that the benefit of Section 4 would not be
extended to the abominable culprit who was found guilty of abducting a teenage girl and
forced her to sexual submission with commercial motive.

Section 5 – Compensation and Costs: Under Section 5, the court has the authority to grant
the release of an offender pursuant to either Section 3 or Section 4, if it deems it appropriate.
Concurrently, the court may issue an additional order directing the offender to:

1. Pay compensation, as deemed reasonable by the court, for any losses or injuries
resulting from the commission of the offense; and

3 Basikesan v. State of Orissa, AIR 1967 Ori 4.

4 Smt. Devki v. State of Haryana, AIR 1979 SC 1948.
 2. Cover the costs of the legal proceedings, as determined reasonable by the court.

Section 9 - Breach of Probation Conditions: In instances where the court has issued an
order under Section 4 for an offender or if any other court has reasonable grounds to believe,
based on a probation officer's report or other evidence, that the offender has violated any of
the conditions specified in the bonds they have entered into, the court may take action. This
action can entail issuing a warrant for the offender's arrest or sending a summons, compelling
their presence before the court.

Section 14 – Duties of Probation Officers: Section 13 of the Act defines a Probation Officer
as an individual appointed by the State Government for this role. However, as per Section
14, a Probation Officer is mandated to perform the following responsibilities, subject to any
conditions and constraints that may be imposed. The principal duties and functions of a
probation officer encompass Criminal Probation Monitoring, Investigation, and Guidance,
Counselling, and Professional Oversight. The probation officer's overarching goal is to
facilitate the rehabilitation of the offender, guiding them toward becoming a law-abiding
member of society through encouragement, guidance, and support.

PROBATION UNDER THE CODE of CRIMINAL PROCEDURE

The initial provision addressing probation dates back to Section 562 of the Code of Criminal
Procedure, 1898. Following its amendment in 1974, it is now designated as Section 360
within The Code of Criminal Procedure, 1974 (CrPC). This section is divided into several
subsections. The inaugural subsection, Section 360(1), is stated 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.’5

One could reasonably assert that this subsection bears a striking resemblance to Section 4 of
the POA, as both provisions allow the presiding court to direct the offender's release under
certain conditions.

However, such a release is permissible only when the following criteria are met:

1. The offender does not have any previous convictions.

2. In cases where the convicted person is a woman of any age or a male under 21 years
of age, and the offense for which they are convicted is not punishable by death or life
imprisonment.

3. When the convicted person is not under 21 years of age, and the offense they are
convicted of carries a penalty of either a fine or imprisonment for a maximum of
seven years.

To invoke this section, it is imperative that the offender has no prior convictions, thus
categorizing them as a 'First Offender.' If these conditions are fulfilled, and if the court that
convicted the offender deems it appropriate, the court may choose to order their release on
probation of good conduct instead of immediately imposing a sentence. In both cases, the
offender may be required to provide a bond, committing to appear for sentencing when called
upon within a period not exceeding three years. The court will also instruct the offender to
maintain peace and good behaviour if released on probation under this section.

In Md. Syad Ali v. State of Guj,6 the Accused was a first time offender and his age was below
21 years but the Court had not applied its mind to the application of section 360. It was held
that this was a fit case for granting probation as all the checkboxes for probation under this
section were ticked.

5 The Code of Criminal Procedure (Act 02 of 1974), s. 360(1)

6 Md. Syad v. State of Guj, 1989 Cr.L.J. 2063 (Guj)..

However, it's important to note that an offender, upon fulfilling the conditions outlined in
this section, cannot claim an automatic right to be released on probation of good conduct.
This is a discretionary power granted to the court under this section.

Moving on, Subsection 3 of Section 360 deals with release after admonition. This subsection
bears a resemblance to Section 3 of the POA and is articulated as follows:

‘In any case in which a person is convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under the Indian Penal Code of 1860, punishable
with not more than two years, imprisonment or any offence punishable with fine only and no
previous conviction is proved against him, the Court before which he is so convicted may, if
it thinks fit, having regard to the age, character, antecedents or physical or mental condition
of the offender and to the trivial nature of the offence or any extenuating circumstances under
which the offence was committed, instead of sentencing him to any punishment, release him
after due admonition.’

In accordance with this subsection, the court may release the accused person after due
admonition, provided the following conditions are met:

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

2. The offense they are accused of falls into categories such as theft, theft in a building,
dishonest misappropriation, or is punishable under the IPC with a maximum
imprisonment term of two years or is an offense punishable with a fine only.

This subsection applies exclusively to the specified offenses and other IPC offenses that do
not carry a punishment exceeding two years of imprisonment. Under this sub-section, the
court retains the discretion to release the offender after admonition instead of imposing any
form of punishment.

WHEN PROBATION CANNOT BE GRANTED

There are specific situations in which the POA does not apply. In most instances, the Act
excludes:

1. Sections 409, 467, and 471 of the Indian Penal Code, which pertain to public
officials breaching trust, forgery of valuable securities and wills, and the fraudulent
use of documents as genuine.
 2. Habitual Criminals who are ineligible for release under the Act. In the case of
Kamroonissa v. the State of Maharashtra7, the appellant faced charges of gold theft.
Given her prolonged incarceration and age below 21, her Probation Officer sought
parole under Sections 3 and 4 of the POA. However, the court rejected the request,
citing the appellant's habitual offender status and a prior arrest in 1971.
3. Section 325 of the IPC, which deals with violence resulting in severe bodily harm,
rendering individuals ineligible for release under the Act.
4. Kidnapping or abduction cases, as the POA does not permit probation in such
instances. As demonstrated in the case of Smt. Devki v. State of Haryana, (footnote
no.4 above) Section 4 was not applicable to a grave offender found guilty of
kidnapping a young girl and subjecting her to sexual exploitation for commercial
purposes.

CONCLUSION

The main objective of the entire Probation System is the rehabilitation of offenders, guiding
them toward a lawful path. This approach holds significant potential in India, where
overcrowded prisons and frequent human rights violations persist.

The process of reform and recovery for offenders must occur within the existing social
environment, with the ultimate goal of reintegrating all offenders into organized society.
Those who have caused severe harm to society should of course not be given opportunities
for rehabilitation, as they continue to pose a threat to the public. Nevertheless, probation has
raised concerns and socio-economic issues that challenge conventional notions of crime and
punishment.

What we aspire to achieve is a society in which first-time offenders, children, and women
do not pose a threat to the public in their future lives. Their good behaviour can contribute
to the creation of a liveable and carefree society.

77 Kamroonissa v. The State of Maharashtra, AIR 1974 SC 2117.