What provisions have been made in CrPC regarding probation?

Question: What provisions have been made in CrPC regarding probation? [RJS 1993]

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Answer

Section 360 of the Criminal Procedure Code lays down the provision regarding probation. This section is a piece of beneficent legislation. It enables the Court, under certain circumstances, to release the accused, who has been convicted, on probation for good conduct. It applies only to first offenders, who are entitled to the indulgence on the score of their age, character or antecedents, and to the circumstances in which the offence is committed.

The object of this section is to avoid sending the first offender to prison for an offence, which is not of a serious character and thereby running the risk of turning him into a regular criminal.

First offenders fall into two classes:

• those above the age of 21 years and convicted of an offence punishable with fine only or imprisonment for a term of seven years or less, and
• those under the age of 21 years or women, and “convicted of an offence not punishable with death or imprisonment for life“.

A Court cannot pass an order under this section where the offence charged is punishable with more than seven years’ imprisonment and the person accused is more than 21 years old.

Sub-section (1) is expressed in general language. It applies to a person convicted of an offence punishable with a fine only or imprisonment of not more than a certain period. It covers the case of a conviction under any law. The term “previous conviction” similarly applies to a conviction under any law and is not confined to a conviction under the IPC.

The expression “Instead of sentencing him” is used in this subsection and subs. (3) indicates that the order of probation can be passed after conviction, but before awarding the sentence and in substitution of it. If the sentence is once awarded, no order for probation can be passed thereafter.

The operation of this subsection (3) is confined to certain offences under the IPC and not offences under any other special Acts. It covers offences punishable with not more than two years imprisonment or with a fine only. Power under the sub-section can be exercised by a second-class Magistrate and it is to be noted that in order to give the benefit of this subsection, the offence should be of a trivial nature.

As per the sub-section (5)

“the High Court or the Court of Session has power, on appeal or in revision, to set aside the order of the Magistrate and in lieu thereof to pass sentence on the offender according to law, provided that it cannot inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.”

Finally, it is imperative to note that the provisions of section 360 CrPC become wholly inapplicable in areas where the effect of the Probation of Offenders Act, 1958 is made applicable. The provisions of the two statutory enactments have significant differences. They cannot co-exist.

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