Probation under Criminal Law

By Soumya Singh Chauhan, UILS, Chandigarh

Editor’s Note: The criminal justice system is slowly advancing from being retributive to reformative. It has been realised that incarcerating first time offenders often does no good as they may come into contact with hardened criminals, and go their way. This is where the concept of probation becomes important. It is a kind of non-custodial sentence, where the person is released so that he can associate with the people in society and lead a normal life. This paper deals with the law of probation under the Criminal Procedure Code and the Probation of Offenders Act. It analyses the relevant provisions relating to conditions for release of an offender on probation.”

Introduction

The earlier penological approach held imprisonment, that is, custodial measures to be the only way to curb crime. But the modern penological approach has ushered in new forms of sentencing whereby the needs of the community are balanced with the best interests of the accused: compensation, release on admonition, probation, imposition of fines, community service are few such techniques used.

Meaning of probation

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 that 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 the convict’s capacity to readjust to the normal society after the release and association with professional delinquents often has undesired effects.[i]

Law of probation in India

Section 562 of the Code if 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. S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation officers to be appointed who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused during the period of his probation. Both the Act and S.360 of the Code exclude the application of the Code where the Act is applied. The Code also gives way to state legislation wherever they have been enacted.

360. Order to release on probation of good conduct or after admonition.-

(1) 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:

Provided that where any 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 accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under the sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) 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.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehensions.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

Object

Section 360 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 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.

In Jugal Kishore Prasad v. State of Bihar[ii], the Supreme Court 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.”

Release on probation of good conduct

Section 360(1)

Having regard to the age, character or antecedents of the offender, and the circumstances in which the offence was committed, if the court convicting the accused person considers it expedient to release the offender on probation of good conduct (instead of sentencing him at once to any punishment), it may direct the offender to 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 fix and in the meantime to keep the peace and be of good behaviour. Such a release is permissible only if the following conditions are satisfied:

  • There is no previous conviction proved against the offender.
  • When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of which he or she is convicted is not punishable with death or imprisonment for life.
  • When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with fine only or imprisonment for a term of seven years or less.

First Offenders

The expression first offender refers to an offender who has no previous conviction to his credit, apart from the offence in question. It is also necessary that the offence committed by him for the first time must be one of those mentioned in section 360, CrPC. First offenders under this section are entitled to indulgence on the ground 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 time 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 according to sub-section (1) fall under two classes:

  • When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of which he or she is convicted is not punishable with death or imprisonment for life.
  • When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with fine only or imprisonment for a term of seven years or less.

Offenders with any precious conviction or those found guilty of any offence punishable with death or imprisonment for life are totally beyond the purview of the section. From this section it is clear that it tries to reform the criminals by treating them leniently only in those cases where there is no serious danger or threat to the protection of the society.

For application of this section it is necessary that the offender must not have been convicted previously so as to bring him in the category of the first offender. On fulfilment of the above conditions, if the court by which the offender is convicted considers it expedient that the offender should be released on probation of good conduct, it may, instead of sentencing him at once to any punishment, order him to be released on bond with or without sureties. The offender may be required to furnish a bond to appear and receive sentence whenever called upon during such period not exceeding three years as the court may direct. The offender shall be directed by the court to keep the peace and be of good behaviour if he is released on probation under this section. In Md. Syad Ali v. State of Guj.[iii], when the accused was a first offender and his age was below 21 years but the court had not applied its mind to the application of section 360, it was held that it was a fit case for granting probation.

No offender can as a matter of right, on fulfilling the conditions laid down in this section, claim to be released on probation of good conduct. It is a discretionary power given under this section to the court.

Release after admonition

Section 360(3)

Having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, the court may, after convicting the accused person, release him after due admonition. Such a release is permissible only if the following conditions are satisfied:

  • There is no previous conviction proved against the accused person.
  • The offence of which he has been accused of is either theft, theft in a building or dishonest misappropriation or is punishable under the IPC with not more than 2 years’ imprisonment or is one punishable with fine only.

Subsection (3) is applicable only in respect of the specified offences and such other offences under the IPC that are not punishable with more than two years’ imprisonment. Under this sub-section the court has got the discretion to release the offender after admonition instead of sentencing him to any punishment.

Section 360(4)

An order under s. 360 directing release of the convicted offender on probation of good conduct or release after due admonition may be made by an appellate court or by the High Court or court of session when exercising its powers of revision.

Section 360(5)

The High Court or the Court of Session may, on appeal or when exercising its powers of revision, set aside such order and in lieu thereof pass sentence on such offender according to law. But the High Court shall not inflict a greater punishment than might have been inflicted by the court by which the offender was convicted.

Breach of recognisances

Section 360(8) & Section 360(9)

In case the offender fails to observe the conditions of his recognizance, the court which convicted the offender or any court which could have dealt with him in respect of his original offence may issue a warrant for his apprehension and when brought before it may either remand him in custody until the case is heard or admit him to bail with a sufficient surety and after hearing the case, pass sentence.

Section 360 And POA Exclusive Of Each Other

Section 360 itself makes it quite clear that it shall not affect the provisions of the Probation of Offenders Act. According to Section 18 of POA read with section 8(1), General Clauses Act, 1897, Section 360 of the Code would cease to apply to the States or parts thereof in which the POA is brought into force. However, the offender can be still released after admonition or on probation of good conduct under sections 3 and 4 POA which is wider in its scope than the provisions of section 360. In that case also, the court will have to use discretion on the same lines as in cases under section 360.

Chhanni v. State of Uttar Pradesh[iv], is a case relating to applicability of section 360, Cr.P.C. In the instant case it was held that provisions of the two statutes regarding probation have significant differences and they cannot coexist. Hence, provisions of section 360 are wholly inapplicable in areas where Probation of Offenders Act is made applicable. The difference between the two statutes is that section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of section 4 of the probation of offenders act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Therefore the court held that the provisions in the two statutes with significant differences could not be intended to co-exist at the same time in the same area.

The order under this section follows a conviction and can be substituted for a sentence.

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.

Special directive in case of non-punitive measures

The discretion to sentence a convicted person to any punishment has been narrowed down by section 361. This section requires that the court shall normally deal with the offenders under section 360 or under the POA, or in case of youthful offenders under the laws of treatment, training or rehabilitation, of such youthful offenders; and that in case the court decides to pass any sentence on the offender, it shall record special reasons for doing so. Thus, section 361 clearly shows that the courts while dealing with the convicted persons are to adopt, as a matter of policy, non punitive measures for the reformation and rehabilitation of offenders, and as far as possible, to avoid awarding deterrent and retributive punishments.

Where the accused may be given benefit of provisions contained in the POA or section 360, but he is not given that benefit, section 361 requires the court to gives its reasons for not doing so.

Section 361 of the code casts a duty upon the court to extend the benefit of the Probation Act to the accused wherever it is possible and to state ‘special reasons’ if it does not do so. The section makes it mandatory for the court to record in its judgment ‘special reasons’ for not extending the benefit of the Probation Act to the accused. The ‘special reasons’ must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.

The omission to record special reasons as required by section 361 is an irregularity and may require the court of appeal or revision to set aside the sentence passed by the lower court if the irregularity has occasioned a failure of justice. In Santa Singh v. State of Punjab[v], it was observed by the Supreme Court:

“Having regard to the object … there can be no doubt that it is one of the most fundamental parts of criminal procedure and non-compliance thereof will ex-facie vitiate the order [of sentence]. Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this statutory provision, because the accused has been completely deprived of an opportunity to represent to the court regarding the proposed sentence and which manifestly results in a failure of justice.”

Edited by Kudrat Agrawal

[i] http://www.legalserviceindia.com/articles/pro_bat.htm.

[ii] (1972) 2 SCC 633.

[iii] 1989 Cr.L.J. 2063 (Guj).

[iv] 2006 Cri. L.J. 4068 (S.C.).

[v] (1976) 4 SCC 190.

2 Replies to “Probation under Criminal Law”

  1. Hello sir,
    I am from Bhiwani (Haryana) and I am a student in Delhi. I wanna Discuss with you my family sufferings and a verdict of Lower court related to probation.
    In 2012 my neighbour and his son attacked on my father head and there was a cut mark size of 8 centimetre long in the middle of head. Case was filed and we were complainant that time . In 2016 the court received “ISHTGASA” (an Urdu word )on my neighbor’s request and a case was filed against my whole family with 4 members with my mom also. My neighbour managed a fake MLR but there was no doctor to confirm that MLR in front of bench and no police complaint was filed against my family, they had no proofs against my family.

    In last I presented a copy of a former judgement in which my neighbour was found convicted and he was released on probation of 2 years. The probation time was got over in 2011. It was the judgement of Lower court and in high court Chandigarh also same verdict was given and a charge of 10000 rupees per head also charged against my neighbour.
    And in my case-
    On 16 March 2017 the verdict of the junior judge first class (JMIC)was –
    1. my neighbour and his son both were released on probation (second time) and
    2 my family was also released on probation of one year whether there was no proof, no police complaint, no doctor verification.
    Sir, it is the story.

    In Last I want to ask one thing if is it legal to release my neighbour on probation second time? and making my family members convict in that case they were sufferers and complainant.
    And should I appeal in session court? please sir tell me.
    I am a in a huge problem this time.

  2. Sir whether probation will have any adverse impact on the government service of the accused or offender ? Kindly provide necessary case laws in this regard.

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