The Probation of Offenders Act, 1958: An Overview

The article “The Probation of Offenders Act, 1958: An Overview” highlights the role of the Court in order to release certain offenders on probation for good conduct. The article analyses various case laws to understand other sections of the aforesaid Act. Further, it also delves into the provisions of the Code of Criminal Procedure, 1973. The author feels that Gandhiji's words especially hate the crime, not the criminal, can also be felt by proper observation of the Probation of Offenders Act because this prescribes a chance for the improvement of offenders depending upon the nature of the offence.

Introduction

The Latin words "PORBO," which means "I prove my merit," and "Probation," which means "Approval test," are the roots of the English word "probation," which is used to determine if a person can exist in society without breaking the law. As a result, probation describes the process of proving one's worth and developing a character that enables one to be released.[1]

The Probation of Offenders Act, of 1958 is a law that seeks to provide the release of offenders following proper reprimand in all appropriate circumstances when an offender is not found guilty of an offence that carries a death or life sentence. This law was enacted to offer offenders a chance to demonstrate that they can behave better in public and continue to live in the same community without doing anything to endanger it. This Act has provided scholars with a wealth of research options, making it one of the more fascinating areas to study today. One of the primary issues with the Act is that under some circumstances, the offender would still be imprisoned without the opportunity to improvise, which contributes to the overpopulation of Indian jails.[2]

The Doctrine of Deterrence, which emerged through time from reformist thinking, serves as the foundation for the Act. After being released, it has been seen that the offender's ability to re-adjust to society declines. Working with seasoned criminals may present them with additional challenges. This has an undesirable effect on the guilty person's life following the conviction. The Probation of Offenders Act, of 1958 saves minor offenders from becoming regular criminals. By giving people the opportunity to change for the better rather than going to jail, this is accomplished. The probation officer seeks to resolve the issue amicably while attending to the needs and challenges of the accused. For those who have been found guilty of crimes, this is done.[3]

The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus[4] - Section 562. It is designed to be used to stop young people from being sent to prison, where they might associate with experienced criminals who could push them further down the path of crime, and to assist mature men who may have first committed crimes out of ignorance, carelessness, or under the bad influence of others but who, but for those mistakes, might have been expected to be good citizens. In some situations, a prison sentence could have the exact opposite result from what it was intended. Such individuals would be amply punished by the embarrassment of having committed a crime as well as by the suffering and humiliation that a criminal court proceeding would entail.

Power of Court to release certain offenders after admonition

Section 3 of the Probation of the Offenders Act,1958 deals with the power of a court to release the offender after admonition. In literal terms, an admonition is a stern warning or reprimand. When a person is found guilty of violating Section 379, Section 380, Section 381 or Section 404 or Section 420 of the Indian Penal Code,1860 or any other offence punishable by a fine, a term of imprisonment of not more than two years, or both under the Indian Penal Code,1860 or under any other law, Section 3 explains how the offender is benefited on the basis of admonition after satisfying the following conditions. A person shouldn't have a prior conviction for the same offence. The offender's personality and the nature of the crime are taken into consideration by the court. Instead of punishing the defendant, the court may release him on probation for good behaviour under Section 4 of the Act or release him after giving him a proper warning.

In Keshav Sitaram Sali v. State of Maharashtra[5], the appellant worked for the Railways. In the case before Special Judicial Magistrate First Class (Railways), Bhusawal, on the counts of charcoal stealing, he assisted Bhikan Murad in carrying out a charcoal theft crime. The State Government appealed the learned Magistrate's acquittal decision before the Bombay High Court after the learned Magistrate cleared the appellant of that offence. He was given a 500-rupee fine and two months of strict jail time if he didn't pay it. Some coal was stolen, with a value of Rs. 8. The Supreme Court ruled that rather than imposing fines in cases of petty thefts, the High Court should grant benefits under Sections 3 or 4 of the Probation of Offenders Act of 1958 or Section 360 of the Code of Criminal Procedure of 1973.

In Basikesan v. State of Orissa[6], a 20-year-old was found guilty of an offence under Section 380 of the Indian Penal Code,1860. As a result, the case had to be submitted under Section 3 of the Probation Act and the young person had to be released after being warned.

In Ahmed v. State of Rajasthan[7], the court said that the benefit of the Probation of the Offenders Act does not extend to anyone who has indulged in any activity that resulted in an explosive situation leading to communal tension.

Power of Court to release certain offenders on Probation of Good Conduct

Section 4 of the Probation of the Offenders Act,1958 talks about the release of the offender on the basis of good conduct. It is one of the Act's most crucial sections. If the perpetrator is found guilty of an offence that carries a death sentence or a life sentence, Section 4 of the Act does not apply. The circumstances of the case, particularly the crime's nature and the offender's personality, must be taken into account by the court. In order to release the offender on probation for good behaviour, the court may issue a monitoring order.

The supervisory period is not to be shorter than one year. The probation officer must supervise the individual for such a span in such a situation. In the supervisory order, the name of the probation officer should be listed. The offender can be ordered by the court to sign a bond, with or without sureties, promising to show up and receive their penalty when required during that time, which should not be longer than three years. The defendant might be released from custody if they behave well. When issuing a supervision order, the court must explain its terms and conditions to the offender and may impose any necessary conditions. The perpetrator should receive this supervision order right away. Although the probation officer's report is not required to enforce this requirement, the Court must consider it when giving a probation order for good behaviour if the material is required to be recorded.

In Smt. Devki v. State of Haryana[8], it was noted that Section 4 would not apply to the despicable offender who was found guilty of kidnapping a juvenile girl and forcing her to do sexual acts for profit.

In Phul Singh v. State of Haryana[9], the court ruled that the Section 4 clause should not be erroneously and arbitrarily used in circumstances when a person in their early 20s commits rape. Due to the horrific nature of the act, the court rejected the motion for probation and found the defendant guilty.

Restriction on Imprisonment of Offenders under 21 years of age

Section 6 of the Probation of the Offenders Act,1958 talks about the restriction on the imprisonment of offenders under twenty-one years of age. According to this clause, offenders under the age of 21 are not detained in facilities where the crime did not merit a sentence of life in prison or death. The court must request the probation officer's report when the accused is under the age of 21. If the court determines that the offender is not suitable for admonition (Section 3), release on probation for good behaviour (Section 4), or both, the court may sentence the offender, under 21 years old, to imprisonment. However, the court cannot sentence the offender without stating its reasons for doing so. Whether or not Sections 3 or 4 of the Act apply must be determined by the Court. The report of the probation officer must be requested by the court for this reason.

Therefore, if the offender is under the age of 21, the Probation Officer's report is required. Before making a decision, the court takes into account the character, physical health, and mental state of the offender as well as the nature of the offence. Because it is impossible for the court to determine whether or not Sections 3 or 4 apply without taking the report of the probation officer into account, the report of the probation officer is required by Section 6 of the Act. The Court reviews the report after receiving it and then decides whether or not the criminal can be freed with a warning or probation for good behaviour. After receiving the report, if the court orders that the offender shall not be released, applying Section 3 or Section 4 of the Act, the Court can pass sentence to the offender recording the reasons for doing so.

In the case of Mohamad Aziz Mohamed Nasir v. State of Maharashtra[10], the appellant was under the age of 21. The appellant once enjoyed success as a well-known child actor in movies, earning various accolades. He then started hanging out with terrible people and turned to evil. The Supreme Court ruled that even if the issue pertaining to Section 6 is not brought before the High Court, the court must still take note of its provisions and provide the applicant benefit from them. It further held that Section 6 imposes an injunction not to impose a sentence of imprisonment on a person who is under the age of 21 and who has been found guilty of an offence punishable by imprisonment other than that unless it is satisfied that it would not be desirable to deal with him under Sections 3 or 4. This restriction on the court's ability to impose an imprisonment sentence applies not only to the trial stage but also to the stage where the case is brought before the High Court or any other court in an appeal or revision.

However, in Uttam Singh v. Delhi Administration[11], the 36-year-old appellant was apprehended with three decks of cards and lewd pictures. Considering his age and the nature of the offence, the SC refused to grant him the benefit of a probationary release.

In Ramji Nissar v. State of Bihar[12], According to the Supreme Court, the purpose of the Act, of 1958 is to stop young offenders from developing into criminals by contact with more experienced criminals inside a jail. Instead of punishing them as usual for their misdeeds, the technique employed is to try to reform them if possible. The person's age issue is significant for punishing the offence for which he or she is found guilty, not for determining the person's guilt. Therefore, Section 6 does not apply if a court finds that the defendant was above 21 on the day the court convicted him guilty.

Provisions related to Probation in CrPC

The clause is broadly divided between procedural and substantive general regulations pertaining to offenders' probation. In Section 562 of the Code of Criminal Procedure, published in 1898, the first provision addressing probation was made. Following the 1973 revision, Section 360 of the Code of Criminal Procedure addressed probation. This Section says that if:

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 a fine.

2. Or any person who is below twenty-one years or if any woman is convicted of an offence not punishable with imprisonment of life or death and no previous conviction is proved against the offender.

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.

The court might release him on entering the bond for good conduct and peace instead of punishing the offender with imprisonment. In the case of Jugal Kishore Prasad v. State of Bihar[13], according to the Supreme Court, the goal of the rule is to prevent young offenders from becoming into obdurate criminals as a result of their interactions with seasoned mature-age offenders should they be given a jail sentence. It has been noted that the Act follows the current penological trend, which holds that the criminal should be changed and reshaped rather than punished in order to exact revenge. No one is born a criminal, according to contemporary criminal law. A good number of crimes are a result of a socioeconomic environment.

The Probation of the Offenders Act, 1958 excludes the application of Section 360 of the Code of Criminal Procedure, 1973 whenever the Act is applied. Section 3 to Section 12 of the Probation of the Offender Act, 1958 deals with the procedures of the court to deal with the release of the offenders. As per Section 19, in the states where the Probation of Offenders Act is enacted, Section 360 of CrPC shall cease to apply. Thus, it is clear that Section 4 of the Probation of Offenders Act has an overriding effect.[14]

Other Salient Features of the Act

1. The Probation of Offenders Act of 1958 aims to change inexperienced inmates by rehabilitating them in society and preventing juvenile offenders from developing into obdurate criminals under environmental control by keeping them in jail alongside hardened criminals. This aims to free first-time offenders after proper warning or notification with advice who are suspected of committing an offence punishable under Sections 379, 380, 381, Section 404, or 420 of the Indian Penal Code, as well as in the case of any crime punishable with up to two years in prison, a fine, or both.
2. The Act mandates that the Court can impose whatever restitution and costs of the prosecution it deems appropriate for the harm or damage caused to the victim. This Act gives the Court the authority to release probationary inmates who are behaving well if the alleged offence is not one that carries a death sentence or a life sentence. Therefore, he will be kept under check.
3. According to the Act, the judge has the authority to change the bail conditions once a prisoner is put on probation for good behaviour and to extend the probationary period for a maximum of three years from the date of the initial decision. To prevent incarceration, the Act provides further protection for those under the age of twenty-one. A person convicted of a crime carrying a life sentence, however, is not permitted to employ this clause.
4. If the person who has been released on bail refuses to abide by the conditions of the bond, the Act gives the Court the authority to issue a warrant of arrest or summons to him and his guarantees requiring them to appear before the Court on the day and time specified in the summons. The Judge may try the defendant and impose a jail sentence under the terms of this Act. Even when the case is brought to its attention on appeal or in revision, the High Court or any other Court may issue such an order. The Act gives probation officers a key role in assisting the Court, monitoring probationers under its supervision, and assisting probationers in pursuing adequate work.

Judicial Trend towards Probation

i) Abdul Qayum v. State of Bihar[15]

The defendant, in this case, was found guilty under Section 379 of the IPC and given a 6-month severe jail term. Together with another person who was also charged with the theft, he perpetrated it. The appellant was 16 years old when the crime was committed, and he was 18 when he was found guilty. According to Section 6 of the PO Act, the probation officer recommended that he be released on probation. According to the Probation Officer's report, the accused was not a hardened criminal or an associate of hardened criminals, therefore, imposing a prison sentence would be contrary to the PO Act's intent and instead would link him to hardened criminals.

The Trial Court refused to give him the benefit of probation, citing the fact that he was a friend of the other accused, a seasoned criminal, as justification. The High Court upheld the decision. In a case involving an appeal, the Supreme Court decided to let him live a normal life as a law-abiding citizen because it believed that if he were released on probation for good behaviour, there would be a chance that he would be reclaimed. In accordance with Section 4 of the Act, the conviction was overturned, and the appellant was discharged.

ii) Rattan Lal v. State of Punjab[16]

The Supreme Court noted that both appellate courts and revisional courts are included in the term "court" in Section 6(1). As a result, any court with the power to convict and sentence the offender to jail, as well as the High Court or any court to whom an appeal or revision is taken, may make an order under Section 11(1) of the Act.

iii) MCD v. State of Delhi[17]

It was held that it is mandatory on the part of the Court to call for a report from the probation officer before proceeding under Section 4(2) of the Probation of offender Act, 1958.

iv) Daulat Ram v. State of Haryana[18]

In this instance, it was decided that the purpose of this Section was to safeguard children. If the young offenders' crimes weren't heinous enough to warrant life in prison or death sentences, they wouldn't be detained. Consequently, the clause should be broadly construed while bearing in mind the meaning intended by it.

v) Dalbir Singh v. State of Haryana[19]

Given the necessity to consider all the relevant circumstances in this case, the court determined that probation for the offender for his exemplary behaviour was acceptable and should be imposed. "The essence of the offence" is one of the factors influencing the aforementioned opinion that cannot be ignored. Thus, Section 4 can be redressed where the court recognizes the circumstances of the situation, in particular the “character of the crime,” when the court decides whether it is reasonable and necessary for the execution of a defined reason that the defendant should be released on the grounds of good conduct.

Conclusion

The goal of the criminal justice system is to punish the offender, reform him or her, and protect society's security and that of its citizens. Thus, it serves as a corrective action. Other alternatives to incarceration, such as parole, admonition with a fine, and probation, also serve this goal just as effectively.

The benefit of probation can also be applied in situations where people attempt suicide due to family strife, poverty, the death of close relatives, or other similar reasons. Its aim is to reform the offender and to make him see the right path. As previously said, this can be accomplished not only through legislative action but also through the administration's honesty. It is being carried out in the correct spirit in various areas of the nation.

The State Government and the resources it devotes to the programmes have complete control over the outcome of probation. In addition to others, resources are required to set up residences for those on probation, hire trained probation officers, and fund their training. To sum up, it may be claimed that the concept of probation would only be effective if the judiciary and the administration worked together and that the Magistrate (or Judge) and the Probation Officer needed to have a shared understanding. Only when a real effort is made to administer probation will it be effective. For a nation like India, where there are frequently overcrowded jails and numerous instances of human rights violations, which would harden a person's inner being, it would be quite beneficial.[20]

References

[1] Shama Innus Jamadar, General Study on Probation Offender in the Indian Context and Study of important provisions of Probation of Offenders Act, Available Here

[2] Isha Kansal, Yash Chawda, A critical study of Probation of Offenders Act, Available Here

[3] Khyati Basant, Probation of Offender Act, 1956, Available Here

[4] 1941 (54) LW 81.

[5] AIR 1983 SC 291

[6] AIR 1967 Ori 4

[7] AIR 1967 Raj 190

[8] AIR 1979 SC 1948

[9] AIR 1980 SC 249

[10] 1976 SCC (Cri) 148.

[11] 974 AIR 1230 1974 SCR (3) 722 1974 SCC (4) 590.

[12] AIR 1963 SC 1088

[13] 1972 AIR 2522, 1973 SCR (1) 875

[14] Amrita Malik, Probation of Offenders Act, Available Here

[15] AIR 1972 SC 214

[16] AIR 1965 SC 444

[17] AIR 2005 SC 2658

[18] 1972 SC 2434

[19] AIR 2000 SC 1677

[20] D. Trayosha, Probation: A study in the Indian context, Available Here

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination