Probation A reformative punishment-Probation of Offenders Act 1958.

Probation A reformative punishment-Probation of Offenders Act 1958.

Probation A reformative punishment-Probation of Offenders Act 1958.

Mahatma Gandhi used to say that “Hate the sin not the sinner“. No person is an offender by birth. It is the circumstances which makes him an offender. Thus, a person can be prevented from becoming an offender. One such method is probation which is the soul of the Probation of Offenders Act 1958.

Law and judicial system of each and every country tries to maintain peace and justice in the society and thus the guilty have to be punished. Peace and integrity of nation is disturbed by crime and criminals. In absence of law, crime increases and life becomes chaos. Laws are implicated to maintain discipline and teach righteousness. Jurisdiction helps a person to differentiate right form wrong. Judicial system of a country will enforce laws which will help bringing of peace and harmony every where.

In India Section 53 of the Indian Penal Code following different types of punishment First- Death, Secondly- Imprisonment for life, Thirdly- omitted[1], Fourthly- Imprisonment, which is of two descriptions, namely:- (1) Rigorous, that is, with hard labour; (2) Simple; Fifthly- Forfeiture of property and Sixthly- Fine but the Indian Penal Code does not mention punishments such as community sentencing like probation or parole. Probation is an alternative to a prison. It is reduction in the sentence of an offender by the court and releasing him on certain conditions to live in the community with or without the supervision of a probation officer.

The system was introduced in India in 1958 by passing the Central Pro­bation Act. Though Section 562 in 1898 Code of Criminal Procedure permitted release of an offender on probation but it applied only to juveniles and first offenders. In 1934, states (provincial governments) were permitted to enact their own laws permitting probational release by the then rulers. Madras and Madhya Pradesh en­acted such an Act in 1936, Bombay and Uttar Pradesh in 1938, Hyderabad in 1953 and West Bengal in 1954. But all these Acts were meant only for the probational release of juvenile offenders.

The history of probation is present in India more than 5000 years back. It has started from the Vedic period during the period of Vedas and Smrities. As we all know the Natures Law, it does not punish to every body it gives us the chance of repentance and rehabilitation. According to Manu punishment should be awarded after considering scientifically tendencies of the offender. Even Yajnyawalkya and Kautilya had supported the views of Manu.

The term Probation is derived from the Latin word ‘probare’, which means to test or to prove. As we all know imprisonment is an accepted form of punishment in the world at large it serves three important purposes that is retribution, prevention and deterrence, however, what imprisonment fails to achieve because of several reasons are reformation and reintegration of personal. Though prisons are classified as correctional institutions and prison administration asked correctional administration what constrained these institutions are overcrowding, insufficient prison staff, inadequate allocation of budget in many states and most importantly lack of proper understanding of punishment and correction among different stakeholders. So the provision needs to be seen from that very perspective as an alternative to imprisonment.

The founder of probation was John Augustus a boot maker of Boston and a member of a society working against alcoholism in 1841. In 1878 the law of probation was implemented for the first time in America. As far as India is concerned when we look at the whole idea of probation it also needs to be seen from the broader context of different criminological underpinnings to it. Now when we talk about criminology we find that now the classical school laid the basic principle that the punishment should fit the crime whereas the positive school of Criminology which was led by Lombroso, Enrico Ferri and Garofalo, they changed the whole concept of the understanding of criminal justice punishment and justice to the fact that the punishment should fit the criminal.

Now the positive school of Criminology rejected the free wind theory propounded by the advocates of the classical school like Beccaria and Bentham and instead of looking at the factors within the criminal that is physical, biological and mental traits when you look at the Indian Penal Code we find that Indian Penal Code was in fact enacted when the classicalism was prevalent and positivism was emerging but the points concepts as probation got wider recognition with the influence of positive school of Criminology.

History of Probation law In India

The Report of the Indian Jails Committee of 1919-20 is considered to be the foundation stone of modern prison reform in India. For the first time, said report identified reformation and rehabilitation as the true objective of prison administration. This Committee was appointed to examine the system of jails in India. It defined the aim of the Prison Administration as “prevention of further crime and restoration of the criminal to society as a reformed character”. It stressed the need for shifting the emphasis from the punishment of offenders to their reformation and recommended the adoption of measures. Apart from this, classification of prisoners, Probation, Parole, setting up of juvenile institutions-Remand Homes, Certified Schools, Probation Services and After Care Hostels, Borstals and introduction of separate institutions for women followed after the publication of the 1919-20 report.

In 1923, The Indian Code of Criminal Procedure of 1898 was modified by substituting a new Section 562. The new Section gives the information about the release of offender on Probation. The applicability of the provision was restricted to the first offender and also to some extent, to the legal character of the offence in question. The provision was more liberally applicable to the women and minors. Thereafter, the question of release of offenders on probation of good conduct instead of sentencing them to imprisonment has been under consideration for some time, in 1931, a draft of Probation of Offenders Bill was prepared by the Government of India and was circulated it to the then Local Governments for their views. However, owing to pre-occupation with other more important mailers the Bill would not be proceeded with. However, there are no separate probation laws at all in several States. In view of the widespread interest in the probation system in the country, the above question was re-examined and it was proposed to have a Central law on the subject which should be uniformly applicable to all the States.[2]

In 1958, in India, it is proposed to empower Courts to release an offender after due admonition in respect of certain specified offences. It is also proposed that the courts be empowered to release the offender on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life.

During the period of probation, offenders will remain under the supervision of probation officers in order that they may be reformed and become useful members of society. The Bill seeks to achieve these objects, Resulted into the Probation of Offenders Act 1958 that provides for the release of Offenders on admonition or on Probation. As such in 1958 the Probation of Offenders Act was enacted, which lays down for procedure for appointment of probation officers who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused in case he is given benefit of probation. Section 360 of the Code says that the provisions of the code shall not apply where the Act is applied. Since the matter is of entry of the Concurrent List, states were given liberty to apply the same as they required.

As we have seen earlier that Section 562 of the Code of Criminal Procedure, 1898, was the earliest provision to have dealt with probation. Section 360 of The Code of Criminal Procedure, 1974 was amended in 1974 which 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 fro 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.[3]

Section 361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation. The main object of probation was laid down in the judgment of Justice Horwill in In re B. Titus.

According to him, “Section 562 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 more mature years, who for the first time may have committed crimes ‘through ignorance or inadvertence or the had influence of others and who, but for such lapses, might be expected to make good citizens.

In such cases a term of imprisonment may have the very opposite effect to that of which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal Court would involve. It was not intended that this section should be applied to experienced men of the world who deliberately flout the law and commit offences.”[4]

The provision under the Code and the Act are similar, as they share a common intent, that, punishment should not merely prevent offences but also to reform the offender. Punishment would be a greater evil if its effect in a given case is likely to result in hardening of the offender into repetition of crime with the possibility of irreparable injury to the complainant or any other person instead of improving the offender. Yet there are a few differences in Section 4 of Probation of Offenders Act and Section 360 of the Cr.P.C.

The Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of offender below the age of 18 years who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, or any fit institution as the Board may require, for the good behavior and well-being of the juvenile for any period not exceeding three years[5].

Probation of Offenders Act 1958- An overview

Probation of Offenders Act 1958 serves two important purposes that are admonition and probation. The scope of this act is revolves around firstly release of offenders on probation or after due admonition and for matters connected therewith. They are total 19 sections in Probation of Offenders Act 1958. This particular law or the legislation is applicable to the whole of India. Assam, for instance, has their Probation of Offenders Rules, 1962.

Section 3 of the Probation of Offenders Act 1958 deals with admonition. Admonition is nothing but releasing an offender after giving a warning. A person may be released after the admonition if he has committed offence under section 379, 380, 381, 404, 420 of the Indian Penal Code or punishable with imprisonment for not more than two years or with fine or with both under IPC or any other law.

It is also important for the purpose of admonition under the Probation of Offenders Act 1958 is that the person should not be a habitual offender which means that there should be no previous conviction proved. Now it is important for us to understand here is that somebody is released under section 4 (the subsequent section which will be described in the foregoing paragraphs) or an order made under this section or shall be considered as previous conviction.

Section 4 of the Probation of Offenders Act 1958 provides for probation.
Section 4: 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 behavior.

In short we can say that Section 4 of Probation of Offenders Act 1958 empowers the court to release any person found guilty of having committed an offence not punishable with death or imprisonment for life on probation of good conduct. The person being released on probation has to enter into a bond to appear and receive sentence when called upon during such period, not exceeding three years, and in the meantime to keep the peace and be on good behavior.

Section 6 of the Probation of Offenders Act 1958 lays reasoning on the judge to give reasons as to why probation is not awarded for a person below 21 years of age. The Court shall also call report from the probation officer before deciding to not grant probation.

In other words as per the provisions of section 6 when any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with life imprisonment), 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 of the Probation of Offenders Act 1958. If the court decides to pass any sentence of imprisonment on the offender, it shall have to record its reasons for doing so.

Section 12 of Probation of Offenders Act 1958 deals with the removal of disqualification attaching to conviction. This particular provision states that an offender shall not suffer any disqualification attaching to conviction of an offence under such law if the offender is dealt under section 3 or under section 4 of the Probation of Offenders Act 1958. In fact Section 12 serves the fundamental cause of reformation in as much as it helps the offender not to be branded as a criminal and instead to get rehabilitated in the society. Unfortunately this provision has received very restrictive interpretation by the courts in India.

This restrictive interpretation started from the case of Divisional Personal Officer Southern Railway versus T.R. Chellappan where in the Hon’ble Apex Court ruled that the order of released on probation is merely in substitution of the sentence to be imposed by the court and that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation.[6]

Section 14 of the Probation of Offenders Act 1958 deals with the duties of the probation officers: It provides that a probation officer shall, subject to such conditions and restrictions, as may be prescribed—

(a) inquire, in accordance with any direction 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 court; and

(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under section 4 of the Probation of Offenders Act 1958.

Conclusion

The main object of the criminal justice system is to reform the offender, and to ensure the society security of its people by taking steps against the offender. It is thus a correctional and reformative measure. This purpose is not fulfilled only by incarceration; other alternative measures like admonition, parole, and probation fulfill the purpose equally well.
The benefit of Probation can also be useful in cases where persons on account of family disputes, destitution, loss of near relatives, or other causes of like nature, attempt to harm themselves or the society in which they live.

Its aim is to reform the offender and to make him more optimistic in seeing the right path. This can be achieved as has been said previously, not only by legislative action but also by the administration.

The success of probation is entirely in the hands of the state administrations and the resources it allots to the programmes. They are required to employ trained probation officers, to set up reformatory homes for probationers and also for their training besides others.

Thus while concluding it can be said that the concept of Probation would be effective only when the judiciary and the administration work together concurrently there must be a common understanding between the Judiciary and the Probation Officer.

Probation would be effective only when there is a sincere attempt for its implementation. It would be of great benefit India, where the jails are overcrowded, with human rights violations which would harden the human inside a person. Probation will result as an affirmation of the human inside every being and it must be given de importance.

As such the Supreme Court, in Rattan Lai v. State of Punjab, has observed that the Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him[7].

[1] Repealed by Act 17 of 1949

[2] The Probation of Offenders Act 1958, [Act No. 20 of 1958][16th May 1958] Statement Of Objects And Reasons

[3] Section 360 of Code of Criminal Procedure, 1974

[4] In Re: B. Titus And Ors. vs Unknown AIR 1941 Mad 720

[5] Section 15(1)(e) of The Juvenile Justice (Care and Protection of Children) Act, 2000

[6] 1976 (3) SCC 190

[7] A.I.R. 1965 S.C. 444

Also Read:-IMPORTANT JUDGMENTS ON SERVICE LAW

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Dikshant Jain

"Dikshant Jain is a practicing lawyer at Rajasthan High Court who has completed his law from University of Rajasthan and Post Graduate Diploma in Taxation from University of Rajasthan."