Author: Prasun Sarkar
Probation of Offenders Act, 1958
Probation means discharging a person subject to a commitment by the 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, it is a substitute for imprisonment, a conditional suspension of sentence. Probation seeks to accomplish the rehabilitation of persons convicted of the crime by returning them to society during a period of supervision rather than by sending them into the unnatural and all too often especially unhealthful atmosphere of prisons and reformatories.
The object of Criminal Law is more inclined towards the reformation of the offender than to punish him. Instead of keeping an accused with hardened criminals in a prison, the court can order personal freedom on the promise of good behavior and can also order a period of supervision over an offender. This is the concept behind ‘probation’.
It is believed that imprisonment decreases the capacity of an offender to readjust to the normal society after the release and association with professional delinquents often have undesired effects on him and his life thereafter. Probation is a socialized penal device which has come up as the result of the modification, over a period of time, of the doctrine of deterrence into the principle of reformation; a development that paved the way to the introduction of the clinical approach and the principle of individualization in the handling of offenders.
According to a report of the United Nations, Department of Social Affairs, ‘Release of 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 sentences acts as a sufficient deterrent to keep him away from criminality. The Probation of Offenders Act, 1958, is based on the concept that young offenders can be saved from becoming habitual offenders by treating them amicably and providing them with a chance to reform rather than dumping them into jails. The probation officer insists on the problem or need of the offender and tries to solve his problem and sees to it that the offender becomes a useful citizen of the society.
The earliest provision to have dealt with probation was sectionS.562 of the Code of Criminal Procedure, 1898. After the amendment in 1974, it stands as S.360 of The Code of Criminal Procedure, 1974. 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 behavior’.
The Probation of Offenders Act, 1958, and S.360 of the Code of Criminal Procedure, 1973 exclude the application of the Code where the Act is applied. The Code also gives way to state legislation wherever they have been enacted. The object of S.360 CrPC is 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 more 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 be good citizens. It is not intended that this section should be applied to experienced men of the world who deliberately flout the law and commit offences.
Power of court to release certain offenders after admonition.—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, (45 of 1860) 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.
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 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.
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition, pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties if any, and the probation officer concerned.
Restrictions on the imprisonment of offenders under twenty-one years of age.—(1) 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.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report if any, and any other information available to it relating to the character and physical and mental condition of the offender.
The Hon’ble Supreme Court in Jugal Kishore Prasad v. State of Bihar explained the rationale of the provision: “The object of the provision is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.”
Duties of A Probation Officer
Sec 14 of the Act deals with the duties of a probation officer. It states:-
A probation officer shall, subject to such conditions and restrictions, as may be prescribed –
(a) enquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court;
(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavor to find them suitable employment;
(c) advise and assist offenders in the payment of compensation or costs ordered by the
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under section 4;
(e) perform such other duties as may be prescribed.
It can be inferred that the measure of alternative punishment i.e., probation and the objective of the theory of reformative punishment would be achieved only if the judiciary and the administration work together. 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 importance. The reform and rehabilitation process have to be worked out in the context of existing social conditions to achieve the ultimate objective to reclaim back those offenders to an orderly society.