By Amrita Malik, SLS Pune
Editor’s Note: Section 562 of the Code of Criminal Procedure, 1898, was the earliest provision to have dealt with probation. After amendment in 1974, it stands as S.360 of The Code of Criminal Procedure, 1974.
The Probation of Offenders Act, 1958 contains elaborate provisions relating to probation of offenders, which are made applicable throughout the country. The Act provides four different modes of dealing with youthful and other offenders in lieu of sentence, subject to certain conditions. These include:—
(1) Release after admonition;
(2) Release on entering a bond on probation of good conduct with or without supervision, and on payment by the offender the compensation and costs to the victim if so ordered, the courts being empowered to vary the conditions of the bond and to sentence and impose a fine if he failed to observe the conditions of the bond;
(3) Persons under twenty-one years of age are not to be sentenced to imprisonment unless the court calls for a report from the probation officer or records reasons to the contrary in writing; and
(4) The person released on probation does not suffer a disqualification attached to a conviction under any other law.
It must be stated that the provisions of the Probation of Offenders Act are not confined to juveniles alone, but extend to adults also. Again, provisions of the Act are not only confined to offenses committed under the Indian Penal Code but they extend to offenses under other special laws such as the Prevention of Corruption Act, 1947; the Prevention of Food Adulteration Act, 1954; the Customs Act, 1962; the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980; the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, Narcotic Drugs & Psychotropic Substances Act, 1985 etc.
In recent times, the emphasis is on the reformation and rehabilitation of the offender as a self-sufficient and useful member of the society, without subjecting him to the deleterious effects of jail life.
This relates to the measure of probation, which may be used by the courts as an alternative and is increasingly being used.
An accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals.
The object of Criminal Law is more to reform the offender than to punish him. Instead of keeping an accused with hardened criminals in a prison, Court can order personal freedom on the promise of good behavior, and can also order a period of supervision over an offender. This is what we generally call as ‘Probation’. Simply, it can be understood as ‘ the conditional release of an offender on the promise of good behavior’.
MEANING OF PROBATION
“Probo” is a Latin word, the meaning of which is “I prove my worth” i.e. to see whether he can live in a free society without breaking the law. “Probatio” means “test on approval”. Webster dictionary meaning of Probation is the act of proving, proof, any proceeding designed to ascertain character. Thus probation means a period of proving or trial. The offender has to prove that he is worthy of probation.
Probation is a socialized penal device, an extramural alternative of institutionalization and has come about as the result of modification over a period of time of doctrine of deterrence into the principle of reformation, a development that paved the way to the introduction of clinical approach and the principle of individualization in the handling of offenders.
Probation means discharging a person subject to 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 [i] It is a substitute for imprisonment, a conditional suspension of sentence.[ii]
The term “Probation” is derived from the Latin word “probare”, which means to test or to prove. It is a treatment device, developed as a non-custodial alternative which is used by the magistracy where guilt is established but it is considered that imposing of a prison sentence would do no good. Imprisonment decreases his capacity to readjust to the normal society after the release and association with professional delinquents often have undesired effects.
According to the United Nations, Department of Social Affairs, The release of the 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 sentence acts as a sufficient deterrent to keep him away from criminality
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 (Attorney General’s Survey of Release Procedure, Vol II, 1939 Page 1).
Probation system is based on reformative theory. It is a scientific approach. It is a rational approach towards the causation of crime of young offenders and thus they can be saved from becoming habitual offenders by dumping them into jails. The probation officer insists on the problem or need of the offender and tries to solve his problem and see that the offender becomes a useful citizen of the society.
OBJECT OF PROBATION
i) The object of probation is to bring lawbreakers and anti-social persons into willing cooperation with the community of which he is a member, thus giving him security which he needs and social protection against his attacks on person or property.
ii) The function of probation is to effect improvement in the character of the offender and permanent rehabilitation and reformation of the offender.
iii) Probation involves molding of the individual’s habits in a more constructive way.
iv) It’s a substitute for imprisonment. Punishment will not serve the purpose in all cases of offenders.
v) The object is that an accused person who is convicted of a crime should be given a chance of reformation which he would lose by being incarcerated by prison.
Analysis of Section 4 of Probation Of Offenders Act 1958
Release on Probation
Section 4 of the act deals with the power of the court to release certain offenders on probation of good conduct. [iii]
As per Section 4, if any person is found guilty of having committed an offense 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.
The section further requires that the offender or his surety has a fixed place of residence or regular occupation in a place where the court exercises jurisdiction. Also, before making any such order, the court shall take into consideration the report, if any, of the probation officer, concerned in relation to the case. However, it is not necessary that the court has to act on the probation officers report. It can also gather information from other source and on its own analysis.
The court may also require the offender to remain under the supervision of a probation officer during a certain period if it thinks that it is in the interests of the offender and of the public. It can also impose appropriate conditions which might be required for such supervision. In case the court does specify such conditional release, it must require the offender has to enter into a bond, with or without sureties, enumerating the conditions. The conditions may relate to the place of residence, abstention from intoxicants, or any other matter as the court thinks appropriate to ensure that the crime is not repeated.
The non-obstante clause in Section 4 of the Act is a clear manifestation of the intention of the legislatures that the provisions of the Act would have effected notwithstanding any other law for the time being in force. [iv]
It is a general section under which the benefit is extended to the offenders under 21 years of age and also offenders who are above 21 years of age. Discretion is exercised by the court while giving the benefit of probation to the offenders above 21 years of age. No reasons are to be recorded when the benefit of probation is granted to the offenders above 21 years of age.
Section 4 laid down that the court shall consider the report of the P.O if any. It is not obligatory on the court to call for and consider the report of the P.O. in terms of Section 4(2).
An order of release on probation came into existence only after the accused is found guilty and is convicted of the offense. Thus the conviction of the accused or the finding of the court that he is guilty cannot be washed out at all because that is the sine quo non for the order of release on probation of the offender. The order of release on probation of the offender is merely in substitution of the sentence to be imposed by the court. This has been made permissible by the c statute with a humanist point of view in order to reform youthful offenders ad to prevent them from becoming hardened criminals.[v]
Meaning of the “character” of the accused
The word character is not defined in the Act. Hence it must be given the ordinary meaning. [vi]The provision of Section 4 vests in the court a discretion to release a person found guilty of having committed an offense not punishable with death or imprisonment for life.
It is really for the court, by which the person is found guilty, to determine, having regard to the circumstances of the case including the nature of the offense and the character of the offender, whether or not it will be expedient to release him on probation of good conduct. It is only when the court forms an opinion that in a given case the offender should be released on probation of good conduct that the court acts as provided in Section 4[vii].
Power is discretionary:
While granting the benefit under the Act the court shall take into consideration the nature of the offense. If the offense is not trivial in nature, the court should not be lenient in granting such a benefit. [viii] Power to release on probation is discretionary and has to be exercised in appropriate cases. [ix]
Conditions to be satisfied for application of Section 4:
(1) the offense committed must not be one punishable with death or imprisonment for life.
(2) the court must opine that it is expedient to release him on probation of good conduct instead of sentencing him to any punishment and
(3) the offender or surety must have a fixed place of abode it regular occupation in a place situated within the jurisdiction of the court.
Relevant factors to be taken into consideration. The convicts have no indefeasible right to be released. The right is only to be considered for release on license in terms of the Act and the rules. The Probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining to release a convict.
The provision of Section 4 vests in the court a discretion to release a person found guilty of having committed an offense not punishable with death or imprisonment for life. It is really for the court, by which the person is found guilty, to determine to have regard to the circumstances of the case including the nature of the offense and the character of the offender, whether or not it will be expedient to release him on probation of good conduct. It is only when the court forms an opinion that in a given case the offender should be released on probation of good conduct the court acts as provided in Section 4. [x]
A wide discretionary jurisdiction has been conferred on the courts to release the convicts not involved in very heinous offenses, on probation instead of incarcerating them to prison. The main object of awarding punishment is the prevention of crime and reformation of the offender
The policy of the law is that where an offense is an overly heinous one grant of probation is ruled out as a matter of law. The heinousness of the offense and its deleterious effect on the body politic, is in the eye of the law, “if not fundamental, a very relevant factor for the grant or refusal of probation.”
In Dasappa v. State of Mysore, [xi] it is laid down as follows :
“It is only when the court forms an opinion that the offender in a given case should be released on probation of good conduct that it has to act as provided by Section 4 of the Act. It was for the accused to have placed all the necessary material before the court which could have enabled it to consider that the first accused was an offender to whom the benefit of Section 4 would be extended “.
FOR WHAT OFFENCES, SECTION 4 CANNOT BE APPLIED?
It was settled law that nobody can claim benefit under PO Act as a matter of right. This was clearly held in AIR 2001 SC 2058. It was observed in State Of Sikkim vs Dorjee Sherpa And Ors, [xii]that decisions reported in AIR 1983 SC 654 : 1983 Cri LJ 1043 (Masarullah v. 1State of Tamilnadu) and 1981 (Supp) SCC 17 (Aitah Chander v. State of A.P.) have also been referred to contend that the Court should not take technical views in such cases and should take into consideration some other aspects such as possibility of losing the job, for invoking the provisions of Probation of Offenders Act even in serious offenses.
It has further been contended that the Court should also take into consideration that the convicts belonging to middle-class families without any criminal antecedent often become the victim of circumstances because of an undesirable company and other evil influences available to such young generation. Provisions of Probation of Offenders Act,1958 normally cannot be applied to the following offenses:
- ACB cases (AIR 1983 SCC 359),
- Section 304 part-II of IPC ,
- NDPS Cases ( (2002) 9 SCC 620),
- Section 304-A (AIR2000 SC 1677),
- Section 325 IPC,
- Sections 409, 467, 471 IPC (AIR 2001 SC 2058;),
- Kidnap and, abduction (AIR 1979 SC 1948), and
- Habitual offenders, (Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117), etc.
Section 4 is similar to subsections (1) and (7) of Section 360 of the Code of Criminal Procedure, 1973 which are stated as follows:
(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, 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 find be of’ good behaviour :
Provided that where the first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
The court, before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the court acts or in which the offender is likely to live during the period named for the observance of the conditions.
I. Uttam Singh vs The State (Delhi Administration) 21 March, 1974[xiii]
The appellant was convicted under s. 292 I.P.C. and sentenced to rigorous imprisonment and fine for selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures. The conviction and sentence was affirmed by the High Court.
It was contended that the sentence was very severe on the ground that only one single offense had been established and secondly that he might be released Linder the Probation of Offenders Act, 1958.
Facts : The accused has a shop at Kishan Ganj, Delhi. It is no more in controversy that on 1st February 1972, the accused sold a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures to P.W. 1. This sale was arranged by the police Sub-Inspector (P.W. 4) on receipt of secret information about the accused uttering these obscene pictures.
On getting a signal from the purchaser a raid was made in the accused’s shop when two more packets of such obscene cards were also recovered in addition to the packet already sold to P.W. 1. The ten-rupee note, which was the price of the said set of playing cards and which had been earlier given-by the Sub-Inspector to P.W. 1, was also recovered from the person of the accused.
At the trial, the accused was convicted under Section 292, Indian Penal Code and sentenced to six months’ rigorous imprisonment and to a fine of Rs. 500/-, in default further rigorous imprisonment for three months. The High Court affirmed the conviction as well as the sentence.
The learned counsel for the appellant submitted that the sentence is very severe on the ground that only one single sale has been established in this case and also only three packets of cards were recovered from the accused. He further submitted that the accused is entitled to be released on probation under Section 4 of the Probation of Offenders Act, 1958.
Held – The accused is married and is said to be 36 years of age. Having regard to the circumstances of the case and the nature of the offense and the potential danger of the accused’s activity in this nefarious trade affecting the morals of society particularly of the young, we are not prepared to release him under section 4 of the Probation of Offenders Act. These offenses of corrupting the internal fabric of the mind have got to be treated on the same footing as the cases of food adulterators and we are not prepared to show any leniency. The appeal was, therefore, rejected.
II. Ishar Das vs State Of Punjab on 31 January [xiv]
The appellant, who was less than 20 years was convicted for an offense under s. 7(1) of the Prevention of Food Adulteration Act, 1954, and was ordered to furnish a bond under s. 4 of the Probation of Offenders Act, 1958. The High Court revised the sentence, because of Section 16 of the Prevention of Food Adulteration Act Prescribed a minimum sentence of imprisonment for 6 months and a fine of Rs. 1000.
It is Manifest from plain reading of sub-section (1) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years. On the contrary, the said subsection is applicable to persons of all ages subject to certain conditions which have been specified therein. Once those conditions are fulfilled and the other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct.
The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the legislature for a person found guilty of the offense under the Prevention of Food Adulteration Act, the court can resort to the provisions of the Probation of Offenders Act.
In this respect sub-section (1) of Section 4 of the Probation of Offenders Act contains the words “notwithstanding anything contained in any other law for the time being in force”. The above non-obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an overriding effect and shall prevail if the other conditions prescribed are fulfilled.
Those conditions are:
(1) the accused is found guilty of having committed an offense not punishable with death or imprisonment for life,
(2) the court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offense and the character of the offender, it is expedient to release him on probation of good conduct, and,
(3) the accused in such an event enters 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.
HELD: Section 4(1) of the Probation of Offenders Act contains the non-obstante clause notwithstanding anything contained in any other law for the time being in force, and hence the section would have overriding effect and shall prevail if its other conditions are fulfilled; especially when the Probation of Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act.
As the object of Probation of offenders act 1958 is to avoid imprisonment of the person covered by the provisions of that act, the said object cannot be set at naught by imposing a sentence of the fine which would necessarily entail imprisonment in case there is a default in the payment of fine.
The Supreme Court held that the Probation of Offenders Act was applicable to the offenses under the Prevention of Food Adulteration Act, 1954.
III. Public Prosecutor v. N.S. Murthy[xv]
The accused was tried for committing murder of his wife but he was convicted under Section 323 of IPC as the injury caused by him was simple in nature. He was released on Probation by the trial court but the High Court sentenced him to sic months R.I. It was held that the conduct of the accused immediately after the occurrence as well as the trial was one of the relevant and material factors to be taken into account before exercising powers under Section 4(1) of the Probation of Offenders Act 1958. In regard to the conduct of accused the court made the following observation:
“In the present case, the accused did not admit his guilt at any stage. The conduct of the accused is not that of a man of good character. Admittedly he ran away after the incident. He was kept in custody of P.W 3 and was handed over to the police on the day following the date of offense at the inquest. He never repented for what had happened to his wife either immediately after the occurrence or at any time subsequent thereto. His statement under Section 342 CrPC makes it abundantly clear that he is not entitled to have the benefit of Section 4(1) of the Act.
I. Sukhnandan v. State of M.P [xvi]
The High Court while dealing with a question as to whether the benefits of the provisions of the Act may be granted to the accused, for outraging the modesty of woman it has been held after considering the provisions of Section 4 as well as Section 12 of the Act , it would be just and proper that the applicant, who is in service and his service record is found not to be good and also he is having five children and is the sole bread earner, the sentence of fine even imposed on him may attach disqualification, be given the benefit of the provisions of the Act
Facts – On 31-10-1990 at 12 o’clock while Parbatia Bai (P.W. 1) was returning from the well, accused met her and followed her. He asked where her husband has gone. Parbatia told that her husband has gone for earning wages. He demanded liquor from Parbatia, but Parbatia refused. He tried to drag Parbatia and took her near the Jack-Fruit Tree (Kathal Ped) and slapped Parbatia.
Parbatia cried, her bangles were broken and her Saree had torn, then the accused ran away from the spot. Parbatia complained about the matter to Muniram, her husband. Both of them then went to the police station on 2-11-1990 at 11:00 a.m. and lodged the F.I.R. Offence under Sections 354 and 323 was registered. She was sent for medical examination. Ex. P-5 is a medical report. The applicant was arrested and the challan was filed.
The accused was serving as Peon in the Education Department. His service record is said to be good. He is having five children, three daughters, and two sons, and the conviction awarded to him may result in removal from service. Therefore, the benefits of the provisions of the Probation of Offenders Act, 1958 may be granted to him.
Held : Having thus considered the provisions of Section 4 as well as Section 12 of the Probation of Offenders Act, in the opinion of this Court, it would be just and proper that the applicant, who is in service and his service record is found to be good and also he is having five children and is the sole bread earner, the sentence of fine even imposed on him may attach disqualification, be given the benefit of provisions of the Probation of Offenders Act. The State counsel was specifically asked, who stated that he has no objection to this effect.
II. Ashok Kumar Dogra vs The State (N.C.T. Of Delhi) on 29 September 2008
Facts : On 26.6.1995, while driving a red line bus bearing registration No. DL- 1P-2315 at Peera Garhi Chowk, Delhi, the petitioner hit a scooter bearing No. DL-1S-1132. The scooter rider, who was injured succumbed to his injuries later on. PW-8, Ct. Randhir Kumar was an eye witness to the accident.
Before the Metropolitan Magistrate, Ct. Randhir Kumar deposed that the accident was a result of rash and negligent driving of the petitioner. Considering the entire evidence produced by the prosecution the petitioner was convicted by the Metropolitan Magistrate. The appeal preferred by the petitioner was also dismissed by the Sessions Court, holding that there is no infirmity in the order passed by the Trial Court.
On 28th March 2008, counsel for the petitioner confined his plea in this matter to the reduction of sentence and/or the benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958.
The counsel for the petitioner contends that the petitioner has faced the rigors of trial for nearly twelve years and has already served more than five months of his sentence. Furthermore, the petitioner is the only earning member of the family and has to support his wife and four minor children.
It is also contended that the petitioner has no history of ever being involved in any criminal proceedings. Counsel of the petitioner submitted that keeping in mind these factors, either the sentence of the petitioner may be reduced or the petitioner may be released on probation of good conduct as contemplated by Sections 3 and 4 of the Probation of Offenders Act, 1958.
Counsel for the State, on the other hand, opposed the contention of the petitioner and relies on the decision of the Supreme Court in Dalbir Singh Vs. State of Haryana 2000 Cri.L.J. 2283. In that case, whilst dealing with the question of benefit of probation being granted to offenders under Section 304-A of the IPC, the Supreme Court categorically stated that the benefit of any such probation should not be extended to persons convicted under Section 304-A for rash and negligent driving.
Held – While considering the quantum of sentence, to be imposed for the offense of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.
The punishment sentencing the petitioner to undergo rigorous imprisonment for three months under Section 279 IPC, with a fine of Rs.500/-; and rigorous imprisonment for one year with fine of Rs.5,000/- under Section 304-A IPC awarded by the Court of the Metropolitan Magistrate and confirmed by the Court of Sessions was held to be quite reasonable. The revision petition was accordingly dismissed.
III. Mukhtiar Singh vs State Of Punjab on 16 March 2010
The trial Court convicted the petitioner for the offense and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5000/- and in default of payment of fine, he was ordered to further undergo rigorous imprisonment for three months. Aggrieved against the same, petitioner had filed an appeal. The Appellate Court dismissed the same, upheld the conviction and maintained the sentence.
Facts – On 9th November, 1995, ASI Jagsir Singh was present along with his companion officials at Sirsa Kainchian in connection with patrol duty. At that time, secret information was received that the present petitioner is engaged in the distilling of illicit liquor and is operating a working Still in the fields of Jit Singh son of Harnam Singh at Ghaggar drain.
On the receipt of secret information, ruqa was sent to the Police Station for registration of the case and a raiding party was constituted. When the raiding party reached the spot, it found the accused feeding fire below the hearth. The working still was dismantled. The equipment and raw material was cooled down and was taken into possession. A separate recovery memo was prepared, vide which the equipment of the working Still and 175 kg of Lahan (raw material used for preparing the illicit liquor) were taken into possession.
From the testimony of the witnesses, it has held that the petitioner was operating a working Still and was engaged in distilling illicit liquor. It was submitted that the occurrence had taken place on 9th November, 1995. A period of more than 14 years has elapsed and during this period, the petitioner has not committed any other offense.
It was further submitted that at the time of occurrence, the petitioner was aged about 33 years. He has a large family to support and is the sole breadwinner of his family. It has been submitted that petitioner be granted an opportunity to reform himself and rehabilitate in the society.
In Isher Dass v. State of Punjab, AIR 1972 SC 1295, Hon’ble Supreme Court held that subsection (1) of Section 4 of the Probation of Offenders Act containing the non-obstante clause, would have an over-riding effect and shall prevail if the other conditions prescribed were fulfilled.
The Full Bench held as follows:- “To conclude on the legal aspect, therefore, it must be held that the mere prescription of the minimum sentence under Section 61 (1)(c) of the Punjab Excise Act, 1914 is no bar to the applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the same is not a special reason for denying the benefit of probation to a person convicted thereunder. In the alternative, it is equally no bar to the applicability of Sections 4 and 6 of the Probation of Offenders Act. The answer to the question posed at the outset is rendered in the negative.”
Taking into consideration that in the last 14 years, petitioner has committed no other offense, the age and antecedents of the petitioner, the Court was of the view that ends of justice will be fully met in case petitioner is released on probation under Probation of Offenders Act, 1958 for a period of one year. He shall furnish personal/surety bonds to the satisfaction of the trial Court with an undertaking that he shall maintain peace, good conduct, and behavior during the period of probation.
To conclude, it can be said 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.
The provision of Section 4 vests in the court a discretion to release a person found guilty of having committed an offense not punishable with death or imprisonment) for life. It is really for the court, by which the person is found guilty, to determine, having regard to the circumstances of the case including the nature of the offense and the character of the offender, whether or not it will be expedient to release him on probation of good conduct. It is only when the court forms an opinion that in a given case the offender should be released on probation of good conduct that the court acts as provided in the Section.
Where, however, the court is not satisfied with the justification of a release on probation of good conduct, it will certainly impose upon the offender penalty as provided by the Indian Penal Code. In case of offenders under twenty-one years of age, special provision has been made in Section 6
Section 4 is general. It applies to all kinds of offenses, whether under or above twenty-one years of age. Section 4 empowers the court in appropriate cases to release an offender on probation of good conduct “instead of sentencing him at once to any punishment”.
Section 4 speaks of punishment and not of imprisonment. The court will not punish him in any manner if on the facts it is satisfied that a particular person guilty of the offense of the nature enumerated in Section 4 should be released on his entering into a bond. The word ‘punishment’, therefore, is wide enough to comprehend both the punishment of imprisonment and the punishment of a fine. Therefore, Section 4 empowers a court to remit the fine also and on the plain wording of the section, it will be unreasonable to contend that remission of the fine was not within the competency of the court.
Formatted on March 15th, 2019.
[i] Santis v. Esola . C C A Cal 50 F 2d 516
[ii] People v. Robinsom 235 N.W .236 : 253 Mich 507
[iii] 1978 CriLJ72
[iv] Ramjani v. State of Rajasthan 1983 (1)Crimes 1063
[v] Divisional Personal Officer v. T.R.Challapan AIR 1975 SC2216
[vi] AIR 1998SC398 Nilgiris Bar Association v. T.K Mahalingam
[vii] Rajeswari Prasad v. Ram Babu Gupta AIR 1961 Patna 19
[viii] State of Karnataka v. Mohamed Nazeer 2003 (SCC(Cri)610
[ix] 1998 CriLJ 1675
[x] Rajeshwari Prasad v. Ram Babu Gupta , AIR Pat 19
[xi] (1964) 2 Mys LJ 342 ; AIR 1965 Mys 224
[xii]1998 CriLJ 2685
[xiii]1974 AIR 1230, 1974 SCR (3) 722
[xiv] 1972 AIR 1295
[xv] 1973 Cri LJ 1238(AP)
[xvi] IV (2002)C.C.R.340