Probation Of Offenders Act

PROBATION: CONCEPT The release of offenders on probation is a treatment device prescribed by the court for persons convicted of offences against the law, during which the probationer lives in the community and regulates his own life under condi/tions imposed by the court or other constituted authority, and is subject to supervision by a probation officer.1 The term ‘probation’ is derived from the latin word ‘probare’ which means “to test” or ‘to prove’. S. Cunnings observed, “Probation is a matter of discipline and treatment. If probationers are carefully chosen and supervision work is performed with care and caution, it can work miracles in the field of rehabilitation”. Don M. Gottfriedson observed that “probation is a procedure by which a convicted person is released by the Court without imprisonment subject to conditions imposed by the Court. Thus probation is part of the decisionmaking process of judges at the time of sentencing”. Donald Taft has defined probation as the postponement of final judgement or sentence in a criminal case, giving the offender an opportunity to improve his conduct and to readjust himself to the community, often on a condition imposed by the court and under the guidance and supervision of an officer of the court. In case of juvenile probationers, non-criminal procedure is adopted and it is less formal. Thus, the system of probation involves restrictions on the liberty of probationer and refrains him from disapproved behaviour, or conversely, compels him to perform certain required acts which may be irksome or even painful to him. 2 The basic purpose is to keep the delinquent away from evil consequences of incarceration and offer him an opportunity to lead socially useful life without violating the law. The philosophy underlying probation is based on the assumption that most persons who become criminals do so because of their environment and special circumstances and that in suitable cases it is possible to change the conditions which led to a person’s fall from proper standards and reclaim him as a sound normal citizen. 3 Probation is often misconceived by some people as an easy let-off or a form of leniency and not a punishment. But this notion is rather misleading. Probation, whether it is for juveniles or adults, permits a more normal social experience than institutionalisation and makes possible varying degrees of control over delinquents together with an option of sentencing him to an institution if he violates probation conditions.

1

Probation and Related Measures (New York) United Nations, Department of Social Affairs, (1951), 287. Taft, ‘England:Criminology’, 4th Edt., 375. 3 Paranjape N.V, ‘Criminology & Penology with victimology’, 15th Edt.., 2012, Central Law Publications, 522 2

Probation is a Conditional Suspension of Sentence Probation is a conditional release of an offender under supervision. As a corrective measure, supervision can be used in two ways, namely, before or after the custodial sentence. If it is applied to an offender before custodial sentence, it is known as ‘probation’ but if it is applied to an offender who has just been released from a custodial sentence, then it is known as ‘parole’. Undoubtedly, probation is an embodiment of a progressive criminal policy based on individualisation of treatment. It is rather a selective measure depending on the discretion of the court. The actual selection for release on probation depends on the careful investigation of personal case-history and social circumstances of the offender.4 The system of probation involves conditional suspension of punishment. An offender may be released on probation either after the sentence is passed in his case or without passing of a sentence. In the former case, the sentence is suspended and delinquent is placed under probation while in the latter, he is put under probation straightway without any sentence being passed on him. Thus, the suspension of sentence may refer either to the suspension of the execution of sentence in the former case or suspension of imposition of sentence in the latter case, depending upon the discretion of the court.5 The offender may be released on probation after the suspension of his sentence on following two considerations, namely. – (i)

His case may be considered as really hopeful when judicial leniency is expedient;

(ii)

Probation may be intended to serve positive role as a method of guidance, assistance and supervision of the probationer so that he may rehabilitate himself for the normal law-abiding life. The suspension of probationer’s sentence is conditioned by his good behaviour during the period of probation and therefore, it acts as a sufficient deterrent for the offender and serves as a punitive reaction to crime. In other words, the system of probation serves to bridge the gap between punishment and measures of safety, that is, the moral responsibility and the social defence, and thus it seeks to combine the punitive and the treatment reaction to crime.

According to Howard Jones, the following conditions must be fulfilled before allowing the benefit of release on probations to an accused person. – (1) No punishment should be imposed initially; (2) The offender should be given a definite period to redeem himself; (3) During the period, delinquent should be placed under supervision of a probation officer for two obvious reasons: 4 5

Supra 3, p. 523 Ibid.

(i)

In order to keep the court informed about his progress; and

(ii)

To help him to make the best use of the opportunity given to him.

(4) If the offender responds favourably, his initial crime should be deemed to have been scrapped, but if he fails to do so, he may be brought back to court and sentenced for the original crime as also for any other crime which he might have committed. It is thus evident is not a “let-off” as alleged by some critics because the probationer must either respond favourably to reformation or suffer imprisonment later. The original offence remains punishable throughout the period of probation and the offender is liable to be punished in case he violates the conditions of the probation order.

Probation: It’s Definitions Probation as a legal disposition only. – One point of view sees probation simply as a suspension of sentence by the court. Since sentence is not imposed, the offender remains in the community until the length of the sentence has expired, unless, of course, in the meantime he has engaged in any conduct that would warrant carrying out the sentence. This system leaves everything to the probationer and makes of probation a simple policing procedure. Therefore, it implies two things to the probationer: another chance, and the threat of punishment should he fail to improve his behaviour. In 1908, judge McKenzie Cleland put it this way: probation is a plan “of suspending over offenders the maximum sentence permitted by law” and of allowing them “to determine by their subsequent conduct whether they should lose or retain their liberty.. with the full knowledge that further delinquency meant..

severe

punishment.”6 Probation as a measure of leniency. – It probably best represents the general lay point of view, as well as that of most probationers. This fact presents a basic problem to professional personnel, who view probation as a form of treatment. Many offenders, however, especially among juveniles, feel their acts are unfortunate slips, and while possibly inexplicable, they are, in the final analysis, choices between right and wrong, choices which the offender feels capable of controlling. 7 Probation as a punitive measure. – 6

Cleland, “New Gospel in Criminology; Municipal Court of Chicago”, 31 McClure’s 358-62, June 1908 Lewis Diana, “The Journal of Criminal Law, Criminology, and Police science”, Northwestern University School of Law, Vol. 51, No.2, Jul- Aug 1960, 190 7

This view has found little acceptance in the literature, especially during the 1910-1960’s. According to Almy, probation must be presented to the probationer as a punishment, one which permits him to escape commitment and its stigma but one which also makes other demands. If these demands are not met, then the probationer can expect the same type of punishment as other defenders. 8 The assumption underlying such a view is that it is the certainty of punishment that deters. Probation as an administrative process. – It is likely that earlier ideas of reform and rehabilitation attached to probation came about as a reaction to the various abuses associated with the imprisonment of children. As a result, a great deal of sentiment was tied to the concept of probation in its beginning. This sentiment, alongwith the goal of reform or rehabilitation, formed the nucleus of the conception of probation as an administrative process. Essentially what probation consists of under this conception is the execution of concrete measures aimed at helping the offender stay out of further trouble. The ultimate goal of complete rehabilitation in this approach, however, was something which was more hoped for than worked for. In this respect it is a fairly negative approach consisting mainly of things done for the offender in the hope that they will somehow deter him from a further career in crime. Thus, arranging for medical treatment, making appointment for the administration of tests, effecting school transfers, seeking employment for the offender, checking on his activities, and so on constitute the major content of probation under this viewpoint.9 Probation as social case work treatment. – Case work may be defined as a process of attempting to understand the needs, impulses and actions of an individual and of helping him to recognise these in a way that is satisfying to himself and yet in accord with the demands of social living. The case worker is concerned with assisting the individual to realize his own capacities to the fullest extent, as well as to orient him to the resources existing within his environment which will provide a satisfying outlet. The probation officer’s work concerns itself with helping the man under supervision to bring to conscious expression his underlying emotional conflicts and thus rid these deep-seated unknown drives of their tension and potency. Probation as a combination of case work and administration. – This point of view regarding probation does not, as it might suggest, constitute a catch-all for those approaches which do not fit the categories discussed thus far. From this standpoint probation is represented both by case

8 9

Almy, “Probation as Punishment”, 24 Survey 657 (1910) Supra 7, 191

work functions and by administrative or executive procedures. Where case work is paramount, administrative functions are supplementary. Where administrative duties are indicated as the primary plan of approach, case work skills and techniques, however defined, must be utilized in the performance of those duties. In other words, some cases may be felt to require intensive interviews more than anything else. But in the course of most cases there are, practically without exception, other things to be done as well: arranging a transfer of schools, scheduling medical and other appointments, and so on. Other cases may be felt to call for mainly administrative functions, such as those just mentioned, plus limited and superficial contacts with the probationers. But in performing those functions and in making those contacts a case work approach must be applied. In summary, then, this point of view sees probation as the simultaneous application of case work and administrative functions, but in specific cases it is more one than the other. Whenever is paramount in any particular case, the other is complementary. 10

Probation: Object The Supreme Court spelt out the object of the Probation of Offenders Act, 1958 in the following words : “ The purpose of the Act is to stop conversion of youthful offenders into stubborn criminals as a result of their association with hardened criminals of mature age in case of youthful offenders are sentenced to undergo imprisonment in jail. Modern criminal jurisprudence recognises that no one is born criminals and that a good many crimes are the result of socio-economic environment. Although not much can be done for hardened criminals, yet a considerable emphasis has been laid on bringing about reform of young offenders not guilty of very serious offences by preventing their association with hardened criminals. The Act gives statutory recognition to the above objective.” 11

Probation: Historical Development The early origins of probation were variously and unevenly shaped by a variety of mechanisms, people, ideologies, economies and politics in diverse orderings across various jurisdictions worldwide, probation’ one common penal cornerstone, across all those different jurisdictions, was, and continues to be, the prison. In order to set this argument in an appropriate global context, it is necessary to study early origins and the main events in the international development of probation. Early Origins of Probation. –

10

Supra 7, 197 Ramji Missar v. State of Bihar, AIR 1963 SC 1088; Ram Naresh Pandey v. State of M.P., (1974) 3 SCC 30; Jagdev Singh v. State of Punjab, AIR 1973 SC 2427; Musa Khan v. State of Maharashtra, 1976 Cri. L.J. 1987 (SC). 11

Some authorities trace the roots of probation to the middle ages when such devices as the benefit of clergy and the law of sanctuary made it possible either to avoid or at least to postpone punishment. It is more likely that there was not any continuous linear development of probation, although one can point to various forerunners such as the judicial reprieve, by which the court suspended the imposition or execution of a sentence, and the practice of releasing an offender

on his own recognizance. Consequently, probation was probably more

directly an outgrowth of the different methods in England and America for suspending sentence. 12 Under the common law the courts of England had for many years bound over petty offenders to sureties or released them on their own recognizance even without sureties. 13 Such practices were also common in some of the American colonies, especially Massachussets, which in 1836 recognized by law the releasing of minor offenders with sureties. In 1869 this same state also authorized the placement, after investigation, of youthful offenders in private homes under the supervision of an agent of the state. Credit for the first use of the term probation foes to John Augustus, a Boston shoemaker, who apparently became interested in befriending violators of the law, bailed many of them out of jail, and provided them with sympathetic supervision. John Augustus, the "Father of Probation," is recognized as the first true probation officer. Augustus was born in Woburn, Massachusetts in 1785. By 1829, he was a permanent resident of Boston and the owner of a successful boot-making business. It was undoubtedly his membership in the Washington Total Abstinence Society that led him to the Boston courts. Washingtonians abstained from alcohol themselves and were convinced that abusers of alcohol could be rehabilitated through understanding, kindness, and sustained moral suasion, rather than through conviction and jail sentences. In 1841, John Augustus attended police court to bail out a "common drunkard," the first probationer. The offender was ordered to appear in court three weeks later for sentencing. He returned to court a sober man, accompanied by Augustus. To the astonishment of all in attendance, his appearance and demeanor had dramatically changed. Augustus thus began an 18-year career as a volunteer probation officer. Not all of the offenders helped by Augustus were alcohol abusers, nor were all prospective probationers taken under his wing. Close attention was paid to evaluating whether or not a candidate would likely prove to be a successful subject for probation. The offender's character, age, and the people, places, and things apt to influence him or her were all considered. Augustus was subsequently credited with founding the investigations process, one of three main concepts of modern probation, the other two being intake and supervision. Augustus, who kept detailed notes on his activities, was also the first to apply the term "probation" to his method of treating offenders.

12 13

Halpern, ‘Probation, Encyclopedia of Criminology’, Philosophical library, New York, 1949, 388. United Nations, Department of Social Affairs, Probation and Related Matters 16, 1951.

By 1858, John Augustus had provided bail for 1,946 men and women. Reportedly, only 10 of this number forfeited their bond, a remarkable accomplishment when measured against any standard. His reformer's zeal and dogged persistence won him the opposition of certain segments of Boston society as well as the devotion and aid of many Boston philanthropists and organizations. It was not until 1878, however, that the first probation law was passed, Massachussets again taking the lead. In that year mayor of Boston was given the power to appoint probation officers, and was only two years later, in 1880, the law was extended to apply to other communities within the state. Then in 1891 Massachussets passed a second law, which required the extension of probation to the criminal courts.14 Two other New England states, Rhode island, Vermont, New Jersey enacted adult probation laws in 1899 and 1900. 15By 1900, though, only five states- Massachusets, Missouri, Rhode island, New Jersey, and Vermont-recognized probation legally. 16 Social, Cultural, Economic and Political context. – The Power to suspend sentences, derived as it was from English common law, provided the Crown or state with the mechanism by which to ameliorate the severity of the law. The practice grew originally ‘because of the need to limit and enforce the conditions of suspended sentence as well as through the social, humanitarian urge to consider the individual factors, to make the punishment fit the individual instead of the crime, and to give guidance and help to the offender to promote his rehabilitation’. The 19th century was one of ‘invention and material progress’(and at no time in history was there such an interest in crime), probation emerged from 19 th century interest in improving prisons and the fact that the creation of reformatories and training schools led to the discovery of the potential for reform in first offenders and the young. Moreover, it was linked to an increased theoretical awareness, amongst humanitarians committed to reform of the criminal justice system, of the need for investigation and treatment of the individual. 17 This take on humanitarian motivation is taken a stage further by Lopez-Rey (1957) in an interesting argument about the closeness of the Anglo-American and Continental systems of probation. He asserts that, just as in Europe, ‘rather than treatment and supervision being the main feature of the Anglo-Saxon model “the ratio essendi” of probation was rather desire for protecting certain offenders against the then existing inhumane conditions of prison and not of creating a specific method of treatment’. 18 Some earlier commentators place the emergence of probation within the context of a rebellion against the authority of the judiciary sparked by the harmful arbitrariness of sentencing and harsh punishment in the second 14

Barnes & Teeters, ‘New Horizons in Criminology’, 2nd Edt, 1955, New York, 760. Charles L. Chute, ‘Probation and Suspended sentence’, Journal of the American Institute of Criminal law and crimilogy, Vol. 12 No. 4, 1922, 559 16 Barnes & Teeters, ‘New Horizons in Criminology’, 2nd Edt, 1955, New York, 760. 17 Charles L. Chute, ‘The extension of Probation in Criminal Courts’, Annals of the American Academy of Political and Social Science, Progress in the law, (1928), 18 Lopez- Rey, M., ‘United Nations Activities and International Trends in Probation’, Howard Journal IX, (1957), 15

half of the nineteenth century.19 In a more generalized view the probation fulfilled the social need of keeping offenders out of the prison environment that created dangerous habitual offenders, and it did so in criminal justice systems dominated by prison and the concept of deterrence through capital and corporal punishment. The underlying factor her is ‘dangerousness’. Prison, through circumstance, not design, became the only penal device and, except in the case of ‘hardened criminals’, was harmful and stigmatizing. 20 The unifying factor in the international spread of probation about which we can be most confident is the prison itself. During the nineteenth century, prison became the cornerstone of penal systems throughout Europe and indeed the world. The impetus for that came from the reformatory impulses of the likes of Bentham, Howard and Fry and when, in the late nineteenth century, ‘public and expert opinion agreed that imprisonment did not, and could not fulfil its original ideal of treatment’, many European states developed non-custodial sentences. Probation spread internationally in significant part because of the loss of faith in prison and partly because it became a symbol of ‘the state’s confidence in its ability to extend discipline and control beyond the prison and into the community’.21 Historical Perspective of Probation Law in India In India, probation received statutory recognition for the first time in 1898 through section 562 of the Code of Criminal Procedure, 1908. Under the provision of this section, the first offender convicted of theft, dishonest mis-appropriation or any other offence under the Indian Penal Code punishable with not more than two years imprisonment could be released on probation of good conduct at the discretion of the Court. Later, the children Act, 1908, also empowered the court to release certain offenders on probation of good conduct. Similar provisions existed in the Children Act, 1960 which were repealed consequent to passing of the Juvenile Justice Act, 1986. This Act was further substituted by the Juvenile Justice (Care & Protection of Children) Act, 2000. 22 The scope of probation law was extended further by the legislation23 in 1923. Consequent to Indian Jail Reforms Committee’s Report (1919-20), the first offenders were to be treated more liberally and could even be released unconditionally after admonition. The release of offenders on probation could be extended not only to offences under the Indian Penal Code but also to offences falling under special enactments. To cope up with the extended probation, a number of Remand

19

Cornil P., ‘Substitutes for Imprisonment in Belgium’, in S. Glueck, ed., Probation and Criminal Justice, The Macmillan Company (1933), New York. 20 Timasheff, ‘ One Hundred Years of Probation 1841-1941’, Fordham University Press, (1941). 21 O’ Brien, ‘The Prison on the Continent: Europe, 1865-1965’, The Oxford History of the Prison: The practice of Punishment in Western Society, Oxford University Press, 1995. 22 Supra 3, p. 529 23 Section 157 of the Amending Act No. XVIII of 1923.

Homes, Rescue homes, Certified schools and Industrial schools were established in Bombay, Madras & Calcutta.24 The Government of India in 1931, prepared a draft of Probation of Offenders Bill and circulated it to the then Provincial Governments for their views. However, the Bill could not be proceeded further due to pre-occupation of the Provincial Governments.25 Later, the Government of India in 1934, informed the local governments that there were no prospects of a central legislation being enacted on probation and they were free to enact suitable laws on the lines of the draft bill. Consequently some of the provinces enacted probation laws which assumed considerable importance because they introduced for the first time provisions regarding pre-sentence enquiry report of probation officer, supervision by paid and voluntary probation officer and compensation for injury caused to a person b the offender’s delinquent act.26 After the Indian Independence, certain concrete steps were initiated to popularise probation as a correctional measure of treatment of offenders. A Probation Conference was held in Bombay in 1952 on the advice of Dr. Walter Reckless, the UN Technical expert on Correctional services. Dr. Walter addressed the Conference and gave valuable suggestions on prison Administration in India.

27

Consequently, All India Jail Manual Committee was formed to review the working of the Indian Jails and suggest measures for reform in the system. The Committee in its report of 1957 pointed out that there was no liaison between the government, the probation personnel, the police, and the prison administrators in implementation of the probation law. The Committee also highlighted the need for a central law on probation with greater emphasis on release of offenders on probation of good conduct so that they are reclaimed as selfreliant members of society.28 In 1958, the Probation of Offenders Act was enacted by the Parliament.

Probation: the Criminal Procedure Code, 1973 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 24

Sen P.K. Penology : Old & New (1943), p. 169. Kulkarni R.A., ‘Probation of Offenders in India’, (1971) p.5 26 Supra 3, p. 530 27 Ibid. 28 Ibid. 25

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 (45 of 1860), 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 the 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 shaII not under this 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 tar 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 apprehension. (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. 1. Grant of probation after conviction but before sentence: Under this section an Offender can be released on probation only after he is convicted and before he is sentenced to a punishment. If the Court convicts the accused and sentences him to any punishment, the provision of this section cannot be applied. 29 Moreover the power of granting of probation is discretionary with the Court. Section 360 is not a mandatory provision. The exercise of power under this section is purely discretionary one with the Court.30 2. Conditions for release on probation.— When the offender is 21 years of age or above, he shall be entitled to the benefit of this section when two conditions are fulfilled : (1) when he has not been previously convicted, and (2) when he has been convicted of an offence punishable with fine only or with imprisonment for a term of 7 years or less. When the accused is under 21 years of age, or a woman, in order to get the benefit of this section, he or she should not have been previously convicted. Secondly, the offence of which he is convicted is not punishable

29

re : Adapa Hanumantha Rao, AIR 1957 AP 413 : 1957 Cri L 925 : 1955 Andh LT (Cri) 67 ; State v. Jagdish, AIR 1970 Raj 110 : 1970 Cri UJ 731. 30 Ram Bahadur v. State of U.P., 1975 Cri L,J 1279 (All).

with death or imprisonment for life. A person may be punished for imprisonment for the specified period mentioned in the section under any law, may be Indian Penal Code or under other Penal Law. If the conviction is for the period specified in the section, the convicted person would be entitled to the benefit of the section provided the other circumstances exist. In granting probation under this section, the sympathy for the offender has not to play any part. The Court has to take into consideration the age, character or antecedents of the offender and the circumstances in which the offence was committed.31 The persons of tender age and of very advanced age are certainly entitled to a pardon under this section, but this does not mean that the persons who are not of that age are in no way to be granted pardon. No hard and fast rule can be laid down as to the circumstances in which pardon may be granted. But when the offence is an act of daring and of reprehensible nature involving previous well-arranged preparation the offender does not deserve pardon under this section. The question of age of the person is relevant not for the purpose of determining his guilt, but only for the purpose of punishment which he should suffer for the offence of which he has been found on the evidence, guilty. The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of the prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. Consequently, the age referred by the opening words of Section 6 (1) of Probation of Offenders Act or Section 360, Criminal Procedure Code should be that when the Court is dealing with the offenders, that being the point of time when the Court has to choose between the two alternatives which Act in supersession of the normal Penal Law vests in it, viz. sentence the offender to imprisonment or to release him on probation. 32 I.

Probation only when no previous conviction:

Probation can be sought only when no previous conviction is proved. Before a person may be granted pardon, it must be proved that he has not been previously convicted under the provisions of any law 33. In debarring a person from getting benefit of this section on the ground of conviction, the conviction must be previous to the conviction in which the pardon is to be granted. II.

To keep the peace and be of good behavior:

Meaning of the words to keep the peace and be of good behavior" used in sub-section (1.) of Section 360 will certainly imply different concepts relatable to different situations, "keeping the peace" will of course mean that peace of the society be not disturbed through any act of the accused that is he should commit no offence. "Being

31

Khalil v. State, 1976 Cri LJ 465 (All) ; State of Maharashtra v. B.R. Patil, 1978 Cri LJ 411 (Born). Ramji v. State of Bihar, AIR 1963 SC 1088: 1963 (2) Cri 14 173: 1963 BLJR 643: 1963 Mad 1.f (Cri) 575 : (1963) 2 SCJ 571. 33 Emperor v. Hasmat Ali, AIR 1935 Bom 188; Devasia Joseph v. State of Kerala, 1982 Cri 14. 714 (Ker) 32

of good behavior" has wider implications. It means not only the behavior of a person who does not commit breach of law, but the behavior of a citizen who is a credit to the society. It contemplates positive good behavior and may imply the undoing of what he did for which he was brought before the Court to receive the sentence. In specific cases it may even be necessary for the Court to specify the conduct which will be implied in the good behavior which the man on probation may have to carry out.34 The Court shall order that the accused be released on his entering into a bond with or without surety. He shall make the offender to execute a personal bond and to provide security. The bond shall contain the condition that the accused shall appear and receive sentence when called upon. The bond should also be to the effect that the offender shall keep the peace and be of good behavior in the mean time. 2. Punishment in the offences covered: I.

Not punishable with death or imprisonment for life.

The term "punishment for death or punishment for life" cannot be read conjunctively. They are to be read disjunctively. It means that if the offence is punishable for imprisonment for life or imprisonment for years and fine, it cannot be read conjunctively so as to mean that it provides an alternative sentence for the offence concerned. Hence, where the accused is convicted for an offence punishable with imprisonment for life and also for punishment for some years, it shall be said that he is convicted for an offence punishable with imprisonment for life. He cannot be given the benefit of Section 4 or 6 of the Probation of Offenders Act, nor of Section 360 of the Criminal Procedure Code.35 II.

Offences punishable with only fine:

In Section 562 of the old Act the words "of an offence punishable with fine only" did not find a place, consequently, there was a controversy. According to one view the section was not applicable to offences punishable with fine only36. To the contrary it was held that the section was applicable to cases punishable only with fine also.37 But the present section applies to offences punishable with fine also. 3. Admonition in what cases to be awarded: When an accused is convicted he may instead of being sentenced be admonished under the following circumstances :

34

Sindhiya Devi v. State of U.P., 1974 Cri U 1403 (All). Jogi Nahak v. State, AIR 1965 on 106 : 1965 (2) Cri LJ 51 ; State v. Sheo Shanker, AIR 1956 All 326: 1956 Cri LJ 659 ; Ghetti v. State of MP, AIR 1959 MP 291 : 1959 Cri 989 ; Sarkar v. jalam Singh, AIR 1950 Raj 28 : 51 Cr' 1332 ; Public Prosecutor v. Paneswara Rao, AIR 1946 Mad 173 : 1945. (2) Mad 14 575 ; Shabir v. State, 1969 Cri LJ 1282 (Del). 36 Devidas v. State, 1953 ALJ 466. 37 Vaijappa V. Emperor, AIR 1935 Bom 402; R.K. Verma v. State, 1969 ALJ 846. 35

(1) If the case is of theft in building, of dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years of imprisonment or an offence punishable with fine only, (2) if no previous conviction is proved, (3) if the Court considers it proper having regard to the age, character, antecedents, physical or mental condition, to the trivial nature, of the offence or the extenuating circumstances in which the offence was committed. I.

Dishonest misappropriation or cheating:

There is controversy as to the meaning of these words. According to one view, the words "dishonest misappropriation and cheating" mean only simple form of misappropriation and cheating given in Section 403 and. Section 417. 38 To the contrary, it has been held that those words apply to the offences of misappropriation or cheating in all the form.39 Section 3 of the Probation of Offenders Act which is almost the same as subsection (3) of the present section, does not use the words "theft', theft in building, dishonest misappropriation, cheating" it reads when a person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 318 or Section 404 or Section 420 of the Indian Penal Code, the Court instead of sentencing him release him after due admonition". Misappropriation simpliciter is punished under Section 403. Section 404 deals with punishment of dishonest misappropriation of the property possessed by a deceased person at the time of his death. Cheating is defined under Section 415 and punishment for cheating is provided in Section 417. Sections 418 and 419 are different forms of cheating. Section 420 is cheating involving inducing and delivery of property. Section 3 of the Probation Act makes provision only for one form of dishonest misappropriation and only one form of cheating. The present section instead of mentioning a particular form of cheating or dishonest misappropriation used the words "Misappropriation or cheating". From this it is clear that these words are used in the section in their wider sense and under sub-section (3) an accused may be released on admonition for offences of dishonest misappropriation or cheating in any form. II.

Offences punishable for not more than two years' imprisonment:

The offences which are earlier mentioned (theft, misappropriation, cheating, dishonest misappropriation of property in the section are punishable with imprisonment for more than two years and therefore, it was necessary to mention them so as to include them in addition to offences under the Indian Penal Code punishable with not more than two years' imprisonment. The words "any offence" under the Indian Penal Code, therefore, cannot be read ejusdam generis with the offences which are mentioned earlier. This clause stands by itself and 38 39

Ramjan v. Emperor, AIR 1915 Boni. 145 ; Sundaram Iyyar v. Emperor, AIR 1919 Mad 583. Harnarayan v. Ramjidas, AIR 1914 All 191.

indicates that all offences punishable with not more than two years' imprisonment are also capable of being dealt with under the section. For admonition the offence must be of a trivial nature. Offences under Section 304A or 279, Indian Penal Code are not of a trivial nature. In such cases admonition should not be granted. If the Court so desires, the accused may be released on probation.

Any offence under the Indian Penal Code

punishable with imprisonment for less than two years can be dealt with under this sub- section. 40 However, Power to release an accused on admonition can be exercised only in respect of offences under the Indian Penal Code and that also only to the offences mentioned in sub-section (3). The provisions of this sub-section have no application to the offences punishable in Acts other than Indian Penal Code. 41 4. Mandatory provisions regarding granting of benefit: Section 361 of the Code mandates assigning special reasons by the Court for not dealing with the accused under Section 360 of CrPC. or under the provisions of the Probation of Offenders Act or the Children Act or any other law for the treatment training or rehabilitation of youthful offenders. Section 361 is incorporate by the Criminal Procedure Code, 1973 for the first time in order to avoid rendering such offenders hardened criminals by keeping them along with other criminals in regular prisons. Further an in-ordinately long prison term is sure to turn such offender into obdurate criminals. Whenever the facts and circumstances of the case call for extension of the benefit conferred by the provision of Section 360 of the Code and the several enactments, it is the duty of the Courts to extend the said benefit. In case the Court feels in a particular case that the convict could not be dealt with under the said provision and the several other enactments, it is its mandatory duty to assign special reasons in the judgment for denying the said benefit to the convicts.42 Opportunity to reform is one of the basic policies of legislation now and is a part and parcel of society and social reforms. 5. Scope of Probation under Section 360 of Cr.P.C. and Probation of Offenders Act compared The Probation of Offenders Act 1958 enacts the law relating to probation and admonition similar to those giving in Section 360, Criminal Procedure Code. Section 1 of the Probation of Offenders Act lays down that the Act extends to the whole of India except that State of Jammu and Kashmir. At the same time the section says that the Act shall come into force in a State on such date as the State Government may, by notification in the official Gazette, appoint. The said Act has been enforced in States of Andhra Pradesh, Andaman and Nicobar Islands, in some districts of Assam, Bihar, Delhi, Daman and Diu, districts of Haryana, Himachal Pradesh, some districts of Maharashtra, Mysore, some districts of Orissa, some districts of Punjab, Rajasthan, some districts of Tamil Nadu, Tripura, some districts of West Bengal, Dadra and Nagar Haveli (U.T.), prior to the enforcement of the Criminal Procedure Code, 1973. Sub-section (10) of Section 360 lays down that the

40

Katta Mallu v. Purna Chandra, AIR 1967 SC 1363 : (1967) 1 SCWR 415 : 1967 SCD 437 : 1967 Mah LJ 503. State v. Mustaq Husain, AIR 1965 MP 137 42 Guvvala Kotaiah v. State of A.P., 1990 Cri LJ 934 at 938 (AP). 41

provisions of the section shall not affect the provisions of Probation of Offenders Act, 1958. From this it follows that in the part of India where in the Probation of Offenders Act has been enforced by the State concerned, the law relating to release an offer on probation or admonition shall be governed by the provisions of Probation of Offenders Act, 1958, Section 360 of the Criminal Procedure Code will not apply in that area. But in the places where the Probation of Offenders Act, 1958 has not been enforced the release of offenders on probation or after admonition shall be governed by Section 360 of Criminal Procedure Code provided the State has not enacted some other provision for the purpose. 43 Unlike Section 360 of Cr.P.C., the Probation of Offenders Act has done away with the distinction on the basis of age or sex and as such all the offenders whether below 21 or above 21 years of age are equally entitled to avail the benefit of release, on probation of good conduct or after admonition. Moreover, grant of probation is not confined to first offenders as in case of Section 360 of Cr.P.C. The Court is competent to release a previous convict on probation if it thinks it proper to do so having regard to the circumstances of the case including the character of the offender and nature of the offence. Thus, the scope of the Probation of Offenders Act is far wider than the provisions of Section 360 of the Code of Criminal Procedure. 1973. The Supreme Court in Chhanni v. State of Uttar Pradesh, 44 reiterated that the enforcement of Probation Act in particular area excludes the applicability of provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of Section 4 of the P.O. Act is much wider than Section 360 of Cr.P.C. which relates only to persons not under the age of 21 years, convicted for offences punishable with fine only or with imprisonment up to 7 years, and any woman convicted of an offence not punishable with death or imprisonment for life. Again, Section 360, Cr.P.C. does not provide for any role of Probation Officers in assisting the courts in relation to supervision and other matters while P.O. Act does provide for it. Further Section 12 of the P.O. Act states that a person released on probation shall not suffer any disqualification attached to conviction of an offender under any law but the Cr.P.C. does not contain any such provision. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the P.O. Act have been brought into force, the provisions of Section 360 of Cr.P.C. will not be applicable. In the instant case, the appellant was convicted for the offence punishable under Sections 304 Part II, 323/149 and 147, IPC and was sentenced to five years' R.I. On appeal, the Allahabad High Court altered the conviction to that of simple hurt under Section 323 IPC and the sentence was accordingly reduced to one year. The appellant raised plea to be given benefit of release on probation under Section 360, Cr.P.C. or Section 4 of P.O. Act. The Supreme Court held that rejection of such application by the High Court was proper as it was made

43 44

State of Punjab v. Harbansh Lal, 1983 Cri LJ 13 (P & H). AIR 2006 SC 3051.

subsequent to modification of the sentence. The Court, however, directed the High Court to consider the application considering the peculiar circumstances of the case. One of the important features of the Probation Act is the provision regarding placement of the offender under the supervision of a probation officer. But there is no such provision under Section 360 of the Code of Criminal Procedure. 1973. The power to grant probation under the Probation of Offenders Act is discretionary. However Section 6 lays down a restriction on the Court not to impose a sentence of imprisonment i on offenders below 21 years of age when found guilty of offences not punishable with imprisonment for life. The Section provides “When any person under 21 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 character of the offender, it would not deal with him under Section 3 or Section 4 (release after admonition or release on probation of good conduct) and if the court passes any sentence of imprisonment on the offender, it would record its reasons for doing so." It has been held that the sentence of imprisonment imposed on the young offender below 21 years of age without compliance with the aforesaid provision of Section 6 would be wholly illegal. 45 The Supreme Court in Gulzar V. State of Madhya Pradesh, 46 clarified that benefit of probation under Section 4 of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973 cannot co-exist at the same time in same area. The scope of Section 4 of the Probation of Offenders Act is much wider as it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Again, Section 360, Cr. P.C. does not provide for any role of probation officers in assisting the courts in relation to supervision and other matters whereas Probation of Offenders Act does contain such a provision. In the case of Sanjay Dutt v. State of Maharashtra47, the Supreme Court observed that in release of an offender on probation Section 4 of the Probation of Offenders Act, 1958 has a wider scope than Section 360 of Cr.P.C. The provision of Section 4 of the Act applies to all persons convicted for any offence which is not punishable with death or life-imprisonment.? Section 360 of Cr.P.C. does not provide for any role for probation officers in assisting the Courts in relation to Supervision and other matters while the Probation of Offenders Act does make such a provision. While Section 12 of the P.O. Act states that a person found guilty of an offence and dealt with under Section 3 or 4 of the Act shall not suffer disqualification, if any, attached to the conviction of an offence under any law, Section 360 of Cr.P.C. does not contain any parallel provision. The two statutes with such significant 45

Jai Gopal v. State, 1975 Cri. L.J. 921 (P. & H.). AIR 2008 SC 383. 47 Sanjay Dutt v. State of Maharashtra, AIR 2013 SC 2687. 46

differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anamolous results. In the instant case the accused was alleged to have supplied arms to co-accused and conspired to commit bomb blasts. The accused confessed co-accused's involvement but possession of weapon was, however, found to be for his personal safety and not for terrorist activities. He was, therefore, convicted only under the Arms Act, 1959 or possessing lethal weapons and not for terrorism under TADA. His sentence of imprisonment was reduced from 6 to 5years. Considering the circumstances and nature of offence, the Supreme Court dismissed his petition for release on probation and his sentence of 5 years imprisonment was maintained. 6. No Benefit of Probation in Sexual Offences The benefit of release on probation is specifically denied to cases involving sex perversity. Thus, disposing of an appeal48 involving an offence under Section 377, I.P.C., and The Supreme Court observed that having regard to the gravity and nature of the unnatural offence which involved sex perversity, the High Court was, right in disallowing the benefit of probation to the accused although he had no previous conviction against him. The sentence of accused was therefore, upheld but modified and reduced to six months instead of three years. The Supreme Court took a strict view of the case involving sex-perversity and refused to allow the benefit of release on probation to the accused in Smt. Devki v. State of Haryana. 49 In this case, the petitioner was found guilty of abducting a teenage girl of 17 years and forcing her to sexual submission with commercial object and was convicted and sentenced by the trial court for three years' imprisonment. The sentence was confirmed by the High Court. On appeal, the Supreme Court refused to allow the benefit of probation to the accused keeping in view the moral turpitude and heinousness of the offence. Again, in Krishna Chandra v. Harbans Singh, 50 the accused, an educated young man was found guilty of having committed house-trespass in his neighbour's house and committed rape on the said neighbour's wife. The Court held that the offender cannot be admitted to the benefit of probation keeping in view the nature of the offence and depravity of the offender. Though the Supreme Court in the case of State of Himachal v. Dharam Pal, 51 did not interfere with the order of the High Court allowing the benefit of probation to the accused who was found guilty for offence under Sections 376 of I.P.C. for attempt to commit rape, but at the same time did not approve the reasoning given by the High Court. The Apex Court held as under "The offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act, leads to an assault on the most valuable possession of a woman i.e. 48

(1982) 3 SCC 9. AIR 1979 SC 1948. 50 (1967) Raj LW 101. 51 (2004) 9 SCC 681 (682). 49

character, reputation, dignity and honour. In a traditional and conservative society like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Probation of Offenders Act, 1958 is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 of the Act is hedged with a condition about the nature of offence and the character of the offender." The decision of the Supreme Court in Phul Singh v. State of Haryana, 52 is a pointer to the consistency of judicial trend in disallowing the benefit of probation to offenders guilty of offences violating sex or morality. In the instant case, the accused Phul Singh, a youth of 22 years of age without any previous criminal record was overpowered by sex urge and entered his next door neighbour's house in broad day light and committed rape on latter's twenty-four year's wife who was alone in the house. The victim complained to her mother, thereupon the accused was presented and sentenced to four years' rigorous imprisonment by the Sessions Court. The High Court confirmed the sentence. On appeal, the Supreme Court upheld the sentence but reduced it from 4 to 2 years thus blending deterrence with correctional approach. The Court observed that despite the fact that the accused was young offender, that he had no previous criminal record, that he had committed the crime in a fit of momentary impulse and was repentant for his act, that he was related to victim's family who were ready to forgive the molester keeping in view his relationship with them, no leniency can be shown to the accused in cases of such "lust-loaded criminality". The judicial attitude has been against allowing the benefit of probation law to persons who are educated and experienced in life and deliberately flout law with impunity. The reason being, that if such persons were to be released on probation the very purpose with which the Probation of Offenders Act was enacted would be defeated. This view finds support in Nabin Chandra Das v. State, 53 wherein the petitioner was a grown up man and a journalist who not only used obscene language but assaulted a public servant in a public place. The Court observed that the conduct of the petitioner who was expected to show greater sense of responsibility manifested a very mischievous disposition. Therefore, the provisions of the Probation of Offenders Act cannot be applied to such a case considering the circumstances of the case including the nature of the offence and character of the offender. The Supreme Court in Ajhar Ali v. State of West Bengal 54, reiterated that benefit of release on probation is not available to persons convicted of offences of crimes against women and children, sexual harassment outraging modesty of woman etc. In this case the appellant was 16 years of age at the time he committed the offence of outraging modesty of women under Section 354. He had forcibly caught hold of a girl of 16 years of age who was going to attend her tuition along with her friend, and planted a kiss, as a result of which he suffered a cut over her lower lip and started bleeding. He was tried under Section 354/324 and sentenced to 6 months' simple

52

AIR 1980 SC 249. (1979) 48 Cut. LT 466 (468). 54 (2013) 10 SCC 31. 53

imprisonment with a fine of Rs. 1000/-. Dismissing the appeal for release on probation, the Apex Court observed that "the appellant had committed a heinous crime and with the social conditions prevailing in the society, the modesty of a woman has to be strongly guarded and as the appellant behaved like a roadside Romeo, it was not a fit case where benefit of the Probation of Offenders Act. 1958 should be given to the appellant." The Supreme Court in its earlier judgment in Karamjit Singh v. Punjab 55, and Om Prakash v. State of Haryana,56 held that a relief under the Protection of Offenders Act should be granted only in the offences which were not of a very grave nature or where mens rea is absent. 7. No Probation for Convicted Corrupt Persons: In the case of N. Bhargavan Pillar' (dead) by L.R's and Another v. State of Kerala. 57 the Apex Court ruled that the benefit of release on probation of good conduct cannot be extended to an accused who is charged of misappropriation of property and corruption under Sections 409, IPC read with Section 5(2 ) of the Prevention of Corruption Act, 1988. In the instant case, the accused was working as Junior Manager on deputation in State Civil Supplies Corporation and the stock in the godown in his charge was found short by the vigilance department after due enquiry in the case. Meanwhile the accused retired from service. He undertook to remit the value of shortage and deposited Rs. 50,000/- as part-payment thereof. Since charges were proved against the accused, he was sentenced to undergo RI for two years and to pay a fine of rupees one lakh with a default stipulation of six months imprisonment. Since the accused died during pendency of the appeal, his legal representatives were impleaded for the payment of fine. The Court held that in view of the specific bar under Section 18 of the Probation of Offenders Act, application of the Act is clearly ruled out in cases of corruption covered under Section 50) of the Prevention of :corruption Act, 1988. The appeal was therefore, dismissed. The Supreme Court in State through Supdt. of Police, New Delhi v . Ratan Lal Arora, 58 reiterated that the benefit of release on probation under Section 360 Cr.P.C. and Probation of Offender's Act, 1958 cannot he extended to an accused who convicted for an offence under section 13(2) of the Prevention of Corruption Act,1988. The Court clarified that so far application of Section 360, Cr.P.C. is concerned. it cannot be invoked where the Probation of Offenders Act, 1958 has been enforced and since the Act was already been in force in Delhi, this section had no application. The order of the High Court of Delhi in extending the benefit of probation under Section 360, Cr.P.C. was therefore, illegal. The Apex Court further noted that Sections 7 and 13 of the Prevention of Corruption Act, 1988 (49 of 1988) do not empower the Court to show any leniency in imposition of sentence below the minimum stipulated. Therefore, order of the High Court granting benefit of probation to the accused was liable to be set aside.

55

(2009) 7 SCC 477. 2003 SCC (Cri) 799 see also Manjappa v. State of Karnataka, (2007) 6 SCC 231. 57 AIR 2004 SC 2317. 58 AIR 2004 SC 2364. 56

Probation: International Perspective Probation in U.S.A. It is generally said that great ideas often have modest beginning. This is true with the origin of probation as well. In America John Augustus, a shoe-maker of Boston in 1841 volunteered to stand bail for a person charged with drunkenness in a local court. The defendant showed signs of reform. The Judge ordered a. nominal fine and released the offender. Fascinated by this incident, John Augustus started standing bail for more and more offenders and took upon himself the duty of helping and supervising them during the period of bail. Subsequently, he helped delinquent women and children also in their rehabilitation. Thus, he saved over two thousand persons from the rigors of imprisonment. It is from here that the system of probation began. John Augustus, was, however, cautious in selecting offenders to be accepted under his charge. He picked up only those delinquents and accepted them as apprentices who were not totally depraved but showed signs of reformation. He arranged to send them to school and provided them with some honest employment and lodging. He maintained an up-to-date record of all the cases he had handled. This provided a blue-print for modern probation system. Later, Father Cook of Boston also took' keen interest in the rehabilitation of young offenders. He drew attention of the courts to the fact that these offenders were mostly the victims of their circumstances and corrigible if placed under proper supervision. He associated himself with the criminal, courts of Boston to advise the Judges in matters of juvenile trials. All States accepted probation for rehabilitation of their delinquents: Under the American probation law, the benefit of release on probation does not extend to following offences,— (1) crimes of violence: (2) crimes involving use of deadly weapons: (3) sexual offences', (4) crimes against the Government or treason; (5) offences for which specific mandatory punishment is provided: and (6) Recidivists. Probation in U.K. In U.K., the system of probation received statutory recognition in 1907 with the enactment of Probation of Offenders Act in that year. At Birmingham, however, a separate court for the trial of teenage criminals was established earlier in 1905. The Probation of Offenders Act, 1907 provided that an offender could be discharged on probation either after certain sentence being imposed on him or even before the imposition of the sentence. His release on probation could either be absolute or conditional, depending on his antecedents, character, age, physical and mental condition and the circumstances which prompted him to commit the offence. Probation

Officers were separately appointed for adults and children. 59 The Act was amended in 1908 and again in 1914. With the enactment of the Criminal Justice Act 1948, probation was extended throughout England60 as a measure of correctional method of treatment. The entire country is divided into a number of probation areas for this purposes each having a fixed number of probation officers to help and advise the courts. Although probation for women was introduced in England at a much later stage than for adult males, but it has yielded wonderful results so far as rehabilitation of female offenders is concerned. The Brooklyn Plan which recommended deferred prosecution for delinquents provided that a juvenile offender charged with an offence is to be admitted to probation without being convicted. Probation of offenders has been considered as an effective method of easing pressure on prisons. The Courts are provided with an improved range of non-custodial alternatives to avoid unnecessary incarceration of offenders. The English Criminal Justice Act, 1982, however, suggested reorganization of Probation Committees for the purpose of redressing, the situation created by House of Lord's decision in Cullen v. Rogers.61 The opinion of House of Lords' that there was no power to include in a probation order a requirement that the probationer should attend a day-centre caused considerable alarm. There are at present hundreds of such centers operating in Britain. The system of probation, supervision acid conditional release on license is now practiced as an effective after-care programmed for treatment and rehabilitation of offenders in United Kingdom. Probation in European Countries Probation as a measure of treatment of delinquents is practiced in several other countries of the world in different forms. It is being extensively used as an effective after-care remedy for the treatment of juvenile offenders. In France, Germany and Russia, probation has been adopted as a measure of social defence. In Austria, probationer remedies are mandatory for offenders under eighteen years of age. Greece accepted probation as a correctional measure in 1951. Similar system is adopted in Ireland, Israel, Italy, Switzerland, Netherland, and other countries of the European Union. Probation in Sweden Sweden is internationally known for its progressive penal philosophy and initiative in the correctional field. Only twenty per cent of the total number of offenders are sent to prison while the remaining 80 per cent are subjected to correctional treatment method such as probation, parole, half-way houses, work centers etc. Even the cases of those who are sent to prison are constantly reviewed so that they can be transferred to noninstitutional service as soon as possible, The supervision of offenders under probation is entrusted to the

59

Section 3 of the English Probation of Offenders Act, 1907. Section 56 (a) of this Act enables the British Prison Commissioner to apply a system of release on licence to persons who were below 18 years of age at the time of commencement of the sentence. 61 (1982) 1 WLR 729. 60

"Commission of Trust" consisting of volunteers who seek advice from probation officer. Efforts are also being made to intensify treatment and supervisory services through probation in non-institutional sector. Probation System in Japan Progressive treatment system for offenders has found statutory recognition in the administration of criminal justice in Japan. The Japanese Code of Criminal Procedure, 1922 expressly stipulated the discretionary power of the public prosecutors in matters of suspension of prosecution and execution of sentence. The offenders, particularly the juvenile delinquents, are placed under probationary supervision. The system of granting probationary supervision to those who are granted suspension of the execution of sentence was fully introduced in Japan in 1955. Almost twenty per cent offenders are allowed probation under supervision while eighty per cent are given probation without supervision. There is a network of probation supervision officers to look after the probationers. Probation in China Criminals not only learn crime techniques during short-term imprisonment but also are stigmatized by society once they are released. In order to prevent the adverse effects of criminal detention and short-term imprisonment on criminal offenders, many jurisdictions, China included, adopt probation as an alternative to implementing short-term punishment.62 Chinese Criminal Code article 72 states that “probation may be granted to a criminal sentenced to criminal detention or to fixed-term imprisonment of not more than three years if, according to the circumstances of his crime and his demonstration of repentance, imposing probation will not result in further harm to society.” 63 The prerequisite for probation, according to Chinese criminal law, is that an offender, who should be sentenced to criminal detention or no more than three years of imprisonment shows remorse and, when released, would not harm society. In such cases, the judge suspends the deserved punishment in favor of probation. The deserved punishment is implemented if offenders on probation commit further criminal acts. Similarly, the probation is canceled if offenders have on record other crimes that were not adjudicated in previous court proceedings or have committed any of the acts prescribed by police warrant. Although the decision to

62

Public surveillance is implemented outside the imprisonment institutions and executed by public security organs. Its term shall not be less than three months and not more than two years. Public surveillance is somewhat similar to probation in implementation because both of them occur outside prison. However, public surveillance is a type of punishment, whereas probation is a method of implementing short-term incarceration. 63 In the English version of Chinese criminal law, “probation” in article 72 is translated as “suspension of punishment.”

implement probation is part of the judge’s process of punishment measurement, probation itself is a method of implementing punishment.64 A. Statutory Eligibility Articles 63 to 65 of this law elaborated conditions of applying and canceling probation, and regulated conditional release of an offender after conviction. The law further demanded that the convicted should have a fixed residence and a job, and should be in the custody of relatives. If the convicted lost his residence and his employment, the probation would be canceled. 65 B. The Nature of Chinese Probation The structure of probation may be perceived in two ways—either as the suspension of the declaration of a crime or as the suspension of the execution of incarceration as a punishment. With the former, called diversion in some jurisdictions, court proceedings are stopped and the offender is placed under a probation officer’s supervision. The latter type refers to the suspension of punishment: An offender is first convicted and then placed under a probation officer’s supervision for correction, with supplementary conditions, for a certain period of time. Chinese criminal law supports the latter type of probation, so Chinese probation occurs after the offender has been convicted.66

Probation: The Probation of Offenders Act, 1958 The Probation of Offenders Ace (Act No. 28 of 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 o report from the probation officer or records reasons to the contrary in writing 67: and

64

For example, Mingxuan Gao and Kechang Ma explore probation in the system of punishment measurement. See Criminal Law 523 (China Legal Publishing House 2004). Some argue for implementing probation in the system of punishment. See Kechang Ma, Punishment 578 (China Wuhan University Press 2006). 65 Federal Sentencing Reporter, Vol. 22, No. 4, pp. 288–293 66 Ibid. 67 Section 6.

(4) the person released on probation does not suffer a disqualification attached to a conviction under any other law.68 It must he 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 offences committed under the Indian Penal Code but they extend to offences 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. Section 11 of the Probation of Offenders Act, 1958 widens the scope of probation by adding an enabling provision regarding the competence of the Courts to make order under the Act in appeal and revision and powers of the appellate and revisional courts in this regard. The higher Courts have been empowered to grant probation in appropriate cases, which was denied to the accused by the lower court. They may also cancel probation granted by the trial court, where it is expedient in order to prevent the misuse of probation. 69 As to the release on probation, the Supreme Court in its decision in Ramamurthy v. State of Karnataka.70observed that it really results in suspension of sentence, as the person released on probation is required to execute a bond under the provisions of the Probation of Offenders Act, 1958, requiring maintenance of good conduct during the probationary period and failure to do so, finds the person concerned in prison again. The Act contains provision of varying conditions of probation and also lays down the procedure to be followed in case of the offenders failing to observe those conditions. 71 Procedure The appropriate stage at which probation order may be made by a court is at the time of pronouncement of judgment. The Judge may make such an order straightway without calling for a report 72 from the probation officer or he may prefer to call for a report. However, it is always advisable to call for a report from the Probation officer because at times, material available on record in course of trial is hardly sufficient for the presiding Judge to make up his mind on the point whether the accused should be admitted to the benefit of release on probation or not. The court must record a clear finding about the age of the offender after weighing the necessary evidence.

68

Section 12. Mohd. Aziz Mohd. Nasir v. State of Maharashtra, 1976 SCC (Cri) 164. 70 (1997) 2 SCC 642. 71 Ramamurthy v. State of Karnataka, (1997) 2 SCC 642 at p. 654 72 Mohd. Aziz. Mohd Nasir v. State of Maharashtra, 1976 SCC (Cri)164. 69

With a view to avoiding delay in the disposal of the case, it would be proper for the court to obtain the probation report before the trial is completed. In warrant cases, the probation officer is directed to prepare probation report of the offender right at the time the 'charge' is framed. The Supreme Court in Municipal Corporation, Delhi v. State of Delhi and another73 held that the High Court before extending the benefit of Probation of Offenders Act to the accused did not call for a report from the authorities to check upon the conduct of the accused as required by Section 4 of Probation of Offenders Act therefore, his release on probation without such a report is wholly illegal. Moreover, the accused had also concealed the fact that he was convicted on earlier occasion as well. In the instant case, the accused was a builder who had committed large scale irregularities and unauthorised construction of eleven shops at ground floor in Delhi and was convicted under Sections 332 and 461 of the Delhi Municipal Act for six months and a fine of Rs. 5,000/-. His appeal was dismissed by the High Court. Then he filed a criminal revision wherein he stated that he did not wish to challenge the conviction on merits but prayed for benefit of release on probation as he had already faced trial for 12 long years in lower courts and also remained in jail for three days. The high Court held that the accused deserved to be released on probation in view of the agony of trial lasting for 12 years suffered by him. The Delhi Municipal Corporation (DMC) went in appeal against this order of the High Court to the Supreme Court. The Apex Court referred to its earlier decision in Ram Singh v. State of Haryana,74wherein it was held that Sections 4 and 6 of Probation of Offenders Act indicate the procedure requiring the Court to call for a report from the probation officer and consider it. As per Section 4(1) of the Act, such report is mandatory. 75The Court therefore, set aside the order of the High Court and remitted the matter to it for fresh disposal strictly in accordance with law. In Bishnu Deo v. State of West Bengal,' the Supreme Court held that provisions of Section 10(6) and 10(7) of the Immoral Traffic (Prevention) Act, 1956, which were inserted by the SITA (Amendment) Act, 1978 constrain the Court imposing sentence of imprisonment on first female offenders found guilty of having committed an offence under Section 7 and •Section 8 of the Act unless it records reasons for doing so, on the basis of probation officer's report and other materials which justifies female's imprisonment. After the enactment of law of the Probation of Offenders Act, 1958, most of the States introduced probation law for their offenders. Section 18 of the Act, however, provides that nothing in the Act shall affect the provisions of the under-mentioned Act :—

73

AIR 2005 SC 2658. (1971) 3 SCC 914. 75 R. Mahalingam v. G. Padmavathi and another, 1979 Cr.L.J. (NOC) 20 (Mad.). 74

(1) The Reformatory School Act, (Sec. 31). (2) The existing State laws relating to juvenile delinquents and Borstal institutions. (3) The provisions of the Immoral Traffic (Prevention) Act, 1956; and (4) The Prevention of Corruption Act, 1988 [Sec. 5 (2)]. Section 14(a) of the Probation of Offenders Act contains a mandatory provision. that whenever the court, in its opinion considers it reasonable to admit an adult offender above the age of 21 years to the benefit of release on probation, it must first secure a pre-sentence report from the Probation Officer. 76 This report may not be necessary in case the offender is below twenty-one years of age, but if at all the report is submitted by the probation officer, it must be taken into consideration. The pre-sentence report prepared by the probation officer usually contains the details about the antecedents of the offender, his life history, family background, marital status, educational standard, social and economic background and the circumstances which led him to commit the offence. The report is to be treated as a confidential document' by the court. After receiving a favorable report from the probation officer about the prospective probationer, the presiding Judge determines the exact period of probation for the delinquent. The period of probation may vary from offender to offender depending on, his potentiality for readjustment to normal life in society. Thus. for some probationers a period of six months or so may suffice while for others even a period of a year or two may be insufficient. It has been generally accepted that keeping the delinquent under supervision for an indeterminate period until his rehabilitation, seems to be the best policy in this regard. In India, the maximum limit for the release of an offender on probation is three years. 77 The probationer can be set at liberty any time during the period of probation as soon as he is considered fit for release in the opinion of the probation officer. But this provision has been criticized for two obvious reasons. Firstly, leaving the probationer entirely at the mercy of the probation officer has its own disadvantages and secondly, it creates resentment among the probationers as they feel that they are being unduly discriminated by the probation authorities. To obviate these possibilities, some Countries have prescribed a minimum and a maximum limit during which the probationer is kept under supervision and he can be discharged any time after he has completed the minimum period. Removal of Disqualification attached to Conviction Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and admitted to the benefit of release on probation under Section 3 or Section 4 of the Act, shall not suffer

76

Ratan/a/ v. State of Punjab, AIR 1965 Sc 444. Secalso Rainji Missar and others v. State 1, AIR 1979 SC 971. of Bihar, AIR 1963 SC 1088 and Suja v. State, AIR 1964 Raj. 72. 77 Section 7 of the Probation of Offenders Act, 1958.

disqualification, if any, attached to the conviction of an offence under such law. It is indeed a salutary provision which facilitates the rehabilitation of the released probationer. The object of this section is to save the probationer from various civil disabilities resulting from his conviction. For example, if a person is debarred from contesting election on account of disqualification, his release on probation will negative this disqualification and he further, the conviction of an employee simpliciter without result in his automatic dismissal from service if he has been being released on probation by the sentencing court. This view finds support in a number of judicial pronouncements of the Supreme Court. However, removal from service or part of it as a departmental punishment is not an is consequence of conviction on a criminal charge and therefore, the provisions of Section 12 of the Act relating to the removal of disqualification attaching to conviction are not attracted in case of removal from it employee who is released on probation. The judicial trend in this regard is discernible from the cases cited hereunder:— In Kehar Singh v. Regional Employment Officer, Chandigarh 78, the petitioner was convicted for theft under Section 380 of IPC and was dealt with under Section 4 of the Probation of Offenders Act, 1958. He was removed from service consequent to the decision of the Court. On appeal, he was reinstated on the ground that phraseology of Section 12 of the Probation of Offenders Act is express, explicit and mandatory and seeks to remove disqualification attaching to conviction in probation cases. In the case of Divisional Personal Officer, Southern Rly. v. T.H. Challappan 79, the Supreme Court ruled that Section 12 of the Probation of Offenders Act does not contemplate automatic disqualification of a person released on probation. This case involved disposal of three appeals by the Supreme Court in all of which points involved were identical. The Supreme Court, quoting the phraseology used in Sections 3 and 4(1) of the Probation of Offenders Act held that conviction is not washed out at all. The order of release on probation is merely a substitution of sentence imposable by Court. Section 12 therefore, does not afford Immunity against disciplinary proceedings for misconduct. In deciding the case of Shenker Dass v Union of India. 80 the Supreme Court took a liberal view of the provision of Section 12 of the Probation of Offenders Act, 1958 and ordered the appellant to be reinstated in service. In this case, the appellant misappropriated Rs. 500 from the Delhi Milk Service and thus committed breach of trust. He pleaded guilty of the charge and was convicted under Section 409, IPC by the trial court and released on probation under Section 4 of the Probation of Offenders Act. As a result of this conviction he was dismissed from service in April. 1964. The Supreme Court while allowing the appeal observed that in the instant case the

78

AIR 1966 Punj.336. AIR 1975 SC 2216. 80 AIR 1985 SC 772 79

crime was committed under personal misery compounded by the appalling delays of law. The Court further observed that a Government servant convicted on criminal charge and released on probation cannot be said to be liable to be dismissed in view of Section 12 of the Probation of Offenders Act which is a beneficial provision. The Court therefore, set aside the order of the High Court of Delhi and reinstated the appellant in service. In leibal Singh v. I.G. Police. Delhi81, the accused a police head-constable was convicted for an offence under Section 337 of IPC but was given the benefit of the provision of Section 4 of the Probation of Offenders Act, 1958. Consequent to his prosecution, the accused was suspended and subsequently dismissed from service on the ground of conviction. The Delhi High Court observed that the word. 'disqualification if any, attaching to a conviction of an offence" used in Section 12 of the Act would not include a person's losing his right or qualification to remain or to be retained in service. According to the High Court, Section 12 of the Act clearly saves the convict from suffering such disqualification attaching to his conviction. In respect of his conviction, the accused had the protection of Section 12 and he was saved from suffering any disqualification such as the one which resulted in his dismissal. Similarly, in Rajbir/Raghubir Singh v. State of Haryana. the accused a Government servant was convicted and placed on probation for good conduct under the Probation of Offenders Act, 1958. It was held by the Supreme Court that in particular facts of the case, the conviction should not affect his service. However, in Union of India v. Bakshi Ram82, the Supreme Court observed that release of offender on probation does not obliterate stigma of conviction. In the instant case, the accused was dismissed from service in view of his conviction under Section 10 of the Central Reserve Police Force Act and the court held that he was not entitled to reinstatement in service upon getting the benefit of probation of good conduct under Section 4 of the Probation of Offenders Act. 1958. The. Supreme Court, in this case pointed out that Section 12 of the Probation of Offenders Act clearly directs that the offender "shall not suffer disqualification, if any, attaching to a conviction of an offence under such law". But the section does not preclude the Department from taking action for misconduct leading to the offence or conviction thereon as per law. Therefore, Section 12 of the Act does not intend to exonerate the person from departmental punishment. In result, the Supreme Court allowed the appeal setting aside the order of the High Court and altered the punishment of dismissal to that of removal from service so that it helps the appellant to secure employment elsewhere. Applicability of Probation Law in Public Welfare Offences The judiciary has taken shifting stands in administering probation law to public welfare offences such as food adulteration, smuggling and violation of customs and excise laws, etc. A chronological survey of the cases 81 82

AIR 1970 Del 240. 1990 Cr LJ 1013.

relating to public welfare offences would bear testimony to t the fact that till early seventies, the courts responded favourably to the inclusion of these offences within the purview of the probation law and were quite liberal in admitting such offenders to the benefit of probation regardless of the age and nature of the offence. This trend is clearly noticeable from the case law discussed in the succeeding pages. In Salem Govinda Chetry v. State of Andhra Pradesh, 83 the accused was convicted under Section 16 (1) read with Sections 7 and 2 (1) (g) of the Prevention of Food Adulteration Act, 1954 for selling "Mysore Pak" adulterated with metanil yellow coaltar dye and kesari dal, which was prohibited. Keeping in view the advanced age of 60 years of the accused who was a petty shopkeeper, the learned Judge set aside the order of sentence passed by the trial Court and released him on probation. The historic decision in Ishwer Das v. State of Punjab 84, however, made a departure from the Court's liberal approach to offenders found guilty of offences involving public welfare. A tendency to keep such anti-social activities outside the purview of the probation law is clearly noticed in the subsequent decisions. Although the Supreme Court allowed the benefit of probation in the instant case, but leaving a note of caution, it observed :` "Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act, 1954, has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. The Courts should not lightly resort to the provisions of Probation of offenders Act in the case of persons above 21years of age found guilty of offences under the Prevention of Food Adulteration Act." In Jai Narayan v. Delhi Municipality85, the Supreme Court refused to release on probation the offender who was found guilty of an offence of adulterating pay, unpermitted coaltar dye on the ground that it was an anti-social activity which was deleterious to consumer’s health. In the case of Ram Prakash v. of Himachal State 86 the Supreme Court ruled that there is no specific bar to extend the application of probation law to an offence under the Prevention of Food Adulteration Act, 1954, but it could not be granted if the offender was above twenty-one years of age.87 In this case, the appellant was convicted for selling adulterated milk of cow and buffalo and was sentenced to six months' rigorous imprisonment and a fine of rupees two hundred under the Prevention of Food Adulteration Act. The High Court denied the benefit of probation to the appellant on the plea h a t at Section 4 of Probation of Offenders Act did not cover adulteration cases. The Supreme Court, however, repelled this contention of the High Court and allowed the benefit of probation to the appellant.

83

AIR 1970 AP 293. AIR 1972 SC 1295 85 AIR 1972 SC 2607 86 AIR 1973 SC 780 87 Obiter of Khanna J. in Ishwar Das v State of Punjab, AIR 1972 SC 1295 84

In Piyarey Lal v. State,88 the High Court of Allahabad stressed that the courts should not lightly resort to the provisions of the Probation of Offenders Act, particularly in case of offenders above twenty-one years of age. The Court further observed that although the application of Probation of Offenders Act is not expressly barred under the Prevention of Food Adulteration Act, 1954, but the courts should not brush aside the consideration that the sale of adulterated articles of food have deleterious reaction upon the public health and therefore, should be sternly dealt with. In the instant case, the accused Piyarey Lal was found guilty of the - offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act selling Kampats (a variety of sweets) which were coloured red, yellow. orange and white by coaltar dye containing rhodamine. The argument of the accused that he was not the manufacturer of the sweets and hence, did not know about the impurity was not accepted by the Court. Dismissing, the revision filed by the revisionist. the Court enhanced the sentence to six months with fine of rupees one thousand and in default to further suffer rigorous imprisonment for six months. The Supreme Court’s decision in Pvarali K. Tejani v Mahadeo Ramchandra Dangey 89 further supports the judicial trend for cautious approach to the application of probation law to .adulteration cases. In this case, the accused was convicted for selling adulterated "supart – with prohibited sweetner saccharin and cyclamate under the Prevention of Food Adulteration Act, 1954 Disallowing, the benefit of probation to the appellant, Mr. Mr Justice V. R. R Krishna lyer (as he then was) observed :— "The kindly application of the probation principle is negatived by the imperatives of social defence and the probabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations guised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, those economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process.” In M/s Precious Oil Corporation & Ors. v. State of Assam 90 the accused was convicted for manufacture of lubricating oil and greases without out license under Section 3 of the Essential Commodities Act, 1955 read with Section 7 of the Lubricating Oils and Greases [Processing, Supply & Distribution (Regulation)] Order, 1987. His products and manufactured oil and greases were found to be adulterated. The Supreme Court dismissed the appeal of the appellant (accused) and denied him benefit of release on probation under clauses (3) and (4) on the ground that his activity was anti-social and he was a potential security risk. The Apex Court in this case, inter alia observed : "The kindly application of the probation principles is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade imperils numerous innocents.

88

(1977) Cr. L. J. 1034 (1036) AIR 1974 SC 228. 90 AIR 2009SC 1566. 89

He is a security risk. Secondly, these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process." 91 The Court noted that the 47th Report of the Law Commission of India had also recommended exclusion of the Probation Act to social and economic offences. An appraisal of the aforesaid cases involving socio-economic offences would reveal a remarkable change in the attitude of Courts towards these crimes. The Courts, while accepting in principle the need for liberal application of probation law, have not lost sight of the dangers involved in mild treatment of socio-economic offenders. These offenders cannot be treated at par with other offenders in matters of punishment because of peculiar nature of their offence and the consequences flowing there from. These offences being injurious to public at large, need to be tackled sternly. Commenting on this aspect, Mr. Justice V.R. Krishna Iyer. the former Judge of the Supreme Court of India observed: "Economic offences are often subtle murders practiced on the community, sabotaging the national economy. They have to be tackled with a new seriousness..." The above cases make it abundantly clear that liberal and kindly application of probation law to public welfare offences would hardly serve the ends of social justice. The Law Commission reiterated in its Forty-seventh Report has also re erated that the Probation of Offenders should not be applicable to the socio-economic offences. The Commission, inter alia, observed 92:— "...the justification of all sentencing is the protection of society. There are occasions when an offender is so antisocial that his immediate and sometimes prolonged confinement is the best assurance of society’s protection. The consideration of rehabilitation has to give way because of the paramount need for the protection of society.” AGE OF OFFENDER The question that often came up for consideration before the courts was whether the age of the offender for the purpose of application of Section 6 of the Probation of Offenders Act should be as on the date of commission of the offence or the date when the offender is convicted. The phraseology used in Section 6(1) of the Probation of Offenders Act, makes it clear that the age is to be reckoned at the time of the disposal of the case. The decision of the Supreme Court in Ramji Missar v. State of Bihar 93 supports this contention. In that case, two brothers, Ramji and Baist, were convicted for offences of attempted murder, grievous hurt and hurt under Sections 307, 326 and 324, IPC. The elder brother Ramji was below 21 years at the date of occurrence but above 21 years at the time of passing of the sentence. He was therefore, sentenced to two years' RI under Section 324 of the Indian Penal Code. The younger brother, Baist who was 19 years of age, was convicted of attempted murder and grievous hurt under Sections 307 and 326, IPC and was sentenced to 6 and 4 years' RI respectively. He

91

Ibid para14. V. R. Krishna lyer • Law, Freedom and Change, (1975), P. 88. 93 AIR 1963 SC 1088. 92

could not be admitted to the benefit of Probation of Offenders Act because offences under Sections 307 and 326 are punishable with imprisonment for life. Ramji was refused probation by the trial Court because his offence was premeditated. On appeal, the High Court reduced the sentence of both the appellants but refused them the benefit of probation. The Supreme Court, however, allowed both Ramji and Baist, the benefit of probation since Section 6 of the Probation of Offenders Act was found inapplicable, particularly in case of Ramji. The Supreme Court in State of Harvana v. Premchand 94 upheld the verdict of the Court of Session that since the respondent was less than 21 years of age, the benefit of probation could not be denied to him, particularly, when he was not a previous convict. In the instant case, the accused who was above 16 years of age had committed an offence of attempt to rape under Sections 376/511, IPC which attracted punishment only up to ten years and not imprisonment for life. He was therefore, allowed the benefit of release on probation by the trial Court under Section 360, Cr P.C. or Section 4 of the Probation of Offenders Act, 1958. The Court of. Session and the High Court declined to interfere and upheld the decision of the trial Court. Thereupon, the State of Haryana went in appeal to the Supreme Court against the sentence of the respondent's release on probation. The Supreme Court dismissed the appeal and observed: "If the conviction of the accused were to be one under Section 376, I.P.C., he could have been awarded imprisonment for life or one extending to ten years. But the offence for which the respondent has been found guilty, is for attempt to rape. Therefore, it is idle to contend that the respondent has been held guilty for an offence which would attract imprisonment for life, disentitling him to the benefit of probation under Section 360, Cr. P.C. or Section 4 of the Probation of Offenders Act. Section 57, I.P.C. clearly points out that in calculating fractions of terms of imprisonment, life imprisonment shall be reckoned as imprisonment for 20 years. Thus, as provided under Section 511, I.P.C., the punishment for the offence, for which an attempt has been made, would be for a term which may extend to one-half of the longest term of imprisonment provided for the offence. Therefore, for offence under Section 376/511, I.P.C., the respondent could be awarded imprisonment for 10 years. On this reasoning, his case for probation is clearly made out and the appeal is dismissed." Pre-sentence Report The Probation Officer is said to be a linchpin in the operation of the probation system. The pre-sentence report of the Probation Officer is the fundamental document for the guidance of the Court whether to grant the benefit of probation to the accused or not. The object of the pre-sentence report as provided in Section 7 of the Probation of Offenders Act is to appraise the Court about the character of the offender, exhibit his surroundings and antecedents and throw light on the background which prompted him to commit the offence and give

94

(1997) 7 SCC 756.

information about the offender's conduct in general and chances of his rehabilitation on being released on probation. The Supreme Court, in the case of Salto v. State of U.P. 95 observed that "to deprive the sentencing judge of the use of pre sentence report is to undermine the modern penological procedural policies that have been carefully adopted." The High Court of Goa in State v. Naguesh G. Goverkar 96, had expressed a view that consideration of the report of Probation Officer as required under Section 7 of the Probation of Offenders Act, 1958, is a condition precedent for the release of the accused on probation. Similar vie was expressed by the High Court of Mysore in the case of Asstt. Collector of Central Excise v. Basiklal Chandmal. 97 Commenting on the significance of Pre-sentence report, Mr. Justice V.R. Krishna Iyer of the Supreme Court (as he then was) quoting from an American case of Williams v. New York State.98 observed as follows :— "For a Judge who wants to sentence persons on the best available information rather than on guess work, inadequate information would undermine the modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation." 99 The Pre-sentence report of the Probation Officer should contain sufficient information about the personality, character, health, environmental circumstances and other factors which motivated the offender to commit the offence. It should also contain details relating to the marital status of the offender and his family background as also neighboring surroundings and previous criminal record, if any. The report should be concluded with an objective evaluative summary about the offender, Probation Officer's overall assessment about the case so as to enable the Magistrate/Judge to take a final decision regarding release of offender on probation. The requirement of pre-sentence report is mandatory in case of offenders who are below 21 years of age but who are not considered fit for release on probation under Section 6(2) of the P.O. Act.100 It may. however, be stated that despite the requirement of presentation of pre-sentence report by the Probation Officer under Section 7 of the Probation of Offenders Act, the Courts generally have shown scant regard for the report because of lack of faith in integrity and trustworthiness of the Probation Officers. In their view, calling for the pre-sentence report would mean unnecessary delay, wastage of time, undue exploitation of the accused by the probation officer and likelihood of biased report being submitted by him which would jeopardize the interest of the accused and would be contrary to the object envisaged by the correctional penal policy. The 95

(1977) 2 SCC 628. AIR 1970 Goa 49. 97 (1972) 2 Mys. L.J. 189 98 (1949) 337 U.S. 241 (249). 99 AIR 1979 SC 680. 100 Mum Lengmei v. Manipur Administration, AIR 1962 Manipur 7. 96

attitude of the members of the Bar regarding provision relating to pre-sentence report is also generally negative because of their vested interest. They oppose the report on the ground that it is manipulated and wholly unreliable just with the 'sole object of winning more clintage'. Obviously, the prejudice of the Bar for the Probation Officers and their pre-sentence report hampers the cause of probation service to a considerable extent. The Place of Probation in the Penal Policy Probation as a correctional measure occupies an important place in reformative justice. It seeks to reconcile the conflicting claims of "punitive" and "treatment" reactions to crime. 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 is useful to society in general and to the offender in particular. It also enables the probation officer in getting deeper insight of the problem of criminals. It would therefore, be convenient to assess the utility of probation as a punitive reaction to crime under the following heads: 1. Utility of probation from the point of view of the delinquent. The system of probation helps the delinquent in rehabilitating himself as a law-abiding member of society. It serves the needs of the probationer in the following manner: i.

Probation keeps the offender away from the criminal world. If the delinquent is set at liberty without adequate guidance and supervision, he is inclined to feel that his delinquent conduct has been accepted by society and he will continue his criminal activities unfettered.

ii.

The fear of punishment in case of violation of probation law has a psychological effect on the offender. It deters him from law-breaking during the period of probation. Thus, probation indirectly prevents an offender from adopting a revengeful attitude towards the society.

iii.

Probation seeks to obviate the evils of institutional incarceration and prevents the offender from contamination and conforming to a criminal career. Moreover, sentencing an offender to a term of imprisonment carries with it a stigma which makes his rehabilitation in society difficult. The release of the offender on probation saves him from stigmatization and prepares him for an upright living.

iv.

Probation seeks to socialize the criminal as the liberty which he enjoys during the probation period enables him to pick up those life-habits which are necessary for a law-abiding member of the community.

v.

Probation enables the offender to attend to his domestic obligations and thus, contribute to support his family financially by taking up suitable work according to his capability.

vi.

Probation enables the offender to rehabilitate himself through his own efforts. This inculcates a sense of self-sufficiency, self-control ant: self-confidence in him which are undoubtedly the essential attributes of a free-life.

vii.

Before the implementation of probation law, the courts were often confronted with the problem of disposing of the cases of persons who were charged with neglect of their family. In such cases, there was no alternative but to send them to prison which was an unnecessary burden on the State exchequer. With the introduction of probation as a method of reformative justice. The courts now admit such offenders to probation where they are handled by the competent probation officers who impress upon them the need to work industriously and avoid shirking their family responsibilities. 2.

Utility of probation from the stand-point of Society.

Besides the delinquent probation also serves a useful purpose for the society as a whole. (i)

It is well known that the interests of society are best served when all it members play a positive role by seeking their self-rehabilitation. Since this object is fully achieved by the probation system, it is indeed an effective method of preserving social solidarity by keep controlling the law-breakers well under co.

(ii)

During the probation period, the offender is sent to various educational, vocational and industrial institutions where he is trained for a profession which may help him in securing a livelihood for himself after he is finally released. This enables him to lead an upright life.

(iii)

Whatever work an offender is doing as a probationer, he is contributing to the national economy and he no longer remains a burden on society.

3. Utility of probation from the point of view of Probation Officer: Correctional task of the probation staff requires closer contact with inmates during his period of probation. This helps the probation supervisor to get a deeper insight into the real causes of crime and suggest remedies for their eradication. The system of probation enables these officials to approach the problem of crime in a practical manner. It provides an excellent opportunity to the probation personnel to serve the community as also the nation. Commenting on this aspect J. L. Gillin rightly observed that probation system if properly administered can assist the Judge in socializing criminal procedure. If probation officers furnish correct information to the

Court about the convicted persons through a careful pre-sentence investigation the Judge may individualize the treatment with greater exactness. 101 The release of offenders on probation as a reformative measure is indeed a milestone in the progress of modern liberal trend in the field of penology. Probation as a measure of rehabilitation shifts the emphasis from deterrence to reformation and from crime to criminal in accordance with the modern reformative trends of punishment. The keynote of the Probation of Offenders Act, 1958 is "reformation and rehabilitation of the offender through the process of individualization.102 Major Functions of the Probation Officer The relationship between probation service and the delinquent in correctional held implies that a probation officer should have a thorough understanding of the (i)

the legal implications involved in the case of delinquent to be released following issues : on probation and functions of various personnel and major policy issues involved in the system of probation:

(ii)

Information about offender's antecedents and social and personal problems leading to his delinquent act. The probation officer should also be in a position to analyse the personality disorders represented by the offender and the sub-culture characteristics of his group: 111°

(iii)

Attitudes of the delinquent and his readiness to co-operate with the probation staff;

(iv)

Knowledge about the functions and responsibilities as a probation officer and ability to make use of his authority for exercising control over probationers.

The probation officers employed in correctional services play a vital role in bringing about the rehabilitation and reformation of offenders and resocialising them as useful members of society. The major functions of a probation officer may be summarized as follows: 1) Investigation and surveillance.—A thorough inquiry into the life history and antecedents of the delinquent is necessary for the purpose of securing information about his failures or successes in meeting the obligations of his legal status. Proper investigation and surveillance will enable further imposition of restrictions on liberty of the delinquent, in case he does not respond favourably to the treatment process.

101 102

Gan. J. L. • Criminololiy and Penology, (3rd Ed.) p. 321. Raghunalit v. Mrs. T. P. grin, AIR 1967 Goa 95.

2) Use of professional control to modify offender's behaviour.—This again is a part of the commonly recognised process of professional control based on the force of State. The control administered by the probation officials over the probationers under their charge may include .— (i)

revocation of probation order;

(ii)

reporting to the appropriate judicial or administrative authorities the behaviour which constitutes violation of law;

(iii)

making scheduled and unscheduled visits to the place of delinquents; and

(iv)

Assisting the authorities in making arrest of the delinquent who has proved a failure in the process of probation.

3) Acting as a legal authority in delinquent's life with responsibility for value change.—This task has important bearing upon the treatment relationship. The probation officials have to associate themselves closely with the delinquent and make use of their legal authority to ensure correctional treatment of delinquent through rehabilitative methods. They should proceed with the basic assumption that delinquent is not one who is to be changed but one whose value considerations need to be changed. 4) Decision making.—This is one of the most important functions to be performed by probation authorities in dealing with probationers. While taking decisions the probation officials should bear in mind that they are of major importance to the delinquent as also to the community insofar as they affect the freedom of offender on the one hand, and safety of the community on the other. These decisions usually involve calculated risks and must therefore, be exercised with utmost caution. According to David Dressler, the functions of Probation Officials involve four major techniques to be employed for effective supervision over probationer 103. They are :— 1. Manipulative Technique. An effort is made to make the offender's environment more conducive in terms of cordial family relationship, employment, social adaptability etc. by adopting this technique 2. Executive Technique. By employing this technique, the probation/parole officer helps the offender by referring to. appropriate welfare agencies or social i service organization or recreation homes etc 3. Guidance Technique. The probation official renders assistance and guidance to his client by using –his professional skill. This technique helps the probationer to develop his personality through self-help, selfreliance and self-discipline.

103

David Dressler : Practice & (1959) Columbia University defeated.

4. Counselling Technique. -The probation officer utilizes this technique in solving the personality problems of the probationers and rendering them necessary advice in times of need. 5. Liaison with the Court.-Yet another important function of the Probation Officer is to act as a liaison between the probationer and the Court. His primary duty in this capacity is to safeguard the interest of the probationer under his charge. The Probation Officer can make an application to the Court for varying the conditions of probation order or for the discharge of probationer's bond 104 when he finds that the probationer's progress in adjusting himself to the normal life in society is satisfactory. Protection to Probation Officer for acts done in good faith Section 15 of the P.O. Act, 1958 specifies that Probation Officer shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code whereas the next section (i.e. Section 16) affords him protection against legal proceedings for action taken in good faith in discharge of his duties in pursuance of the P.O. Act or rules made there under. Although the expression 'good faith' has not been defined anywhere in the Act, but it refers to acts done without malice. The Calcutta High Court held that an act shall be deemed to have been done in good faith when it is, in fact done honestly, whether it is done negligently or not. 105 The Supreme Court in Harbhajan Singh v. State of Punjab 106, observed that 'good faith' is a question of fact and must be considered on the facts and circumstances of each case. Sections 15 and 16 of the P.O. Act have a twin object of protecting the honest and upright probation, officials against legal action for from done bona fide and at the same time extend due safeguard to the probationer from arbitrary decisions of the probation officers. While dealing with the probationer, the Probation Officer should not allow his bias or prejudice to creep into the assessment process else the very purpose of objective assessment of the probationer will be Theory of Probation and Parole The success of the probation programme largely depends on the quality of probation staff deployed to handle the offenders who are released on probation. The probation agents should not only be well trained and skilled but they should also have adequate time to devote to the probationers. Unfortunately, the situation in India in this regard is far from satisfactory because of lack of desired awareness about the probation scheme and the personnel deployed for probation services doing their job just in a routine manner. Critical Appreciation of Probation as a Correctional Measure It has now been universally accepted that in order to achieve progressive correctional standards there must be added emphasis on probation. Its exponent must interpret the philosophy underlying probation more clearly and 104

Section 8(3) of the Probation of Offenders Act, 1958. Press, p. 167. Bibhuti Bhushan Das Gupta v. Sudhir Kumar Mazumdar. AIR 1966 Cal. 473. 106 AIR 1P66 SC 97. 105

initiate a definite campaign of education that will break down prejudices against correctional methods and explain their wider objectives. It must not be forgotten that there are always some pitfalls in best of the systems which may pose a threat to the system itself. However, this should not discourage our efforts. Needless to say that probation as a method is much cheaper and effective than incarceration. It is a modern technique in the field of correctional therapy107 which must be used extensively for treatment of offenders. There are some critics who look probation as a form of leniency towards the offenders. To quote Dr. Walter Reckless, "probation like parole, seems to the average laymen a sap thrown to the criminal and a slap at society."108 Some scholars criticize probation because it involves undue interference of non-legal agencies in the judicial work which hampers the cause of justice. Despite the criticism of probation from certain quarters, the fact remains that it is perhaps the only reformative technique which fully endorses the cause of human dignity. Probation, in fact, is an opportunity to an offender to "struggle to recapture self-respect". It lays greater emphasis on individual rather than his act and desires that potentialities of the offender for rehabilitation must be thoroughly explored before admitting him to the benefit of probation. It is, therefore abundantly clear that the system of probation is fully in conformity with the modern reformative trends of punishment. In spite of the merits of the probation technique, there are certain pit-falls in the system which also needs to be mentioned. They are :— 1. The advocates of probation system assert that this correctional method of treatment of criminals being compatible with the advances in social and medical science, is the only scientific approach and hence the concept of punishment must be modified, if not dissipated. This logic really destroys the very foundation of our present sentencing justice. Keeping in view the increasing crime rate and its frightening dimensions, undue emphasis on "individual" offender at the cost of societal insecurity can hardly be appreciated as a sound penal policy. 2. Probation system lays greater emphasis on the offender and in the zeal of reformation; the interests of the victim of the delinquent's act are completely lost sight of. This obviously, is against the basic norms of justice. 3. Admitting all young offenders and first offenders to probation regardless of their antecedents, personality and mental attitude, might lead to recidivism because many of them may not respond 107

Barnes and Teeters New Horizons in Criminology (3rd Ed.), Chapter on Probation. Dr. W.C. Reckless visited India in 1952 on the invitation of the Government of India and surveyed the entire field of correctional administration and gave a valuable report on Probation and allied services. 108

favorably to this reformative mode of treatment. Section 3 of the Probation of Offenders Act. 1958 provides that the Court at its discretion, can order unsupervised release of the offender after due admonition in offences such as theft, cheating etc. This section does not require the Court to call for a pre-sentence report from the probation officer. As such, the Court does not possess necessary information regarding character and antecedents of the offender. As a result of this, there ispossibility of dangerous offenders being released under this provision which may defeat the very purpose of corrective justice. 4. In many cases, it is difficult to ascertain whether the delinquent is a first offender or a recidivist. Therefore, there is a possibility that an offender who is otherwise a recidivist, might be admitted to probation and he may not respond favourably to this correctional technique. 5. Section 4 of the Probation of Offenders Act, which is a key section of the Act, does not make supervision of a person released on probation mandatory when the Court orders release of a person on probation on his entering into a bond with or without sureties. This is not in accordance with the probation philosophy which considers supervision essential in the interests of the offender. 6. Although Section 6 of the Act requires the Court to take into consideration the probation officer's report when decision to grant or refuse probation to an offender who is below 21 years is to be taken but many a times courts do take decision without such report. This is again, against the spirit of the philosophy enshrined in the Probation Act 7. Perhaps the lack of real interest for social service among the probation personnel presents a major problem in selecting right persons for this arduous job. Prof. Chute attributes lack of properly qualified personnel, want of adequate supervision and excessive burden of case-work as the three major causes of inefficiency of the probation staff. Particularly, in India, probation is reduced to a mere farce and the correctional task is being handled by persons who are mostly inexperienced and inadequately trained for this work. The lack of enthusiasm for social service and inadequate resources for implementation of probation programs are perhaps the two main causes of slow progress of probation service in India. As rightly pointed out by Donald Taft, the acid test of success or failure of probation is its effect on recidivism. 109 But this test can never be accurately carried out because of a variety of other factors influencing criminality and the quality of probation also varies according to time and place. It is generally agreed that probation is one of the most promising methods of protecting society against crime and criminals. Studies on probation have shown that the advantages of this correctional method far outweigh its shortcomings. A case study conducted by Morris Caldwell on 1800 probationers during his period of probation supervision reveals 109

Taft R. Donald Criminology (4th Ed.). p. 390.

that total of only 23.1 per cent either violated probation law or absconded. This fairly demonstrates the success of probation as a method of reforming the offender within the community itself. 110 Suggestions for Probation of Offenders Act, 1958 Be that as it may, it has generally been agreed that probation serves as a potential measure of social defence for reformation of offenders. It has now been accepted as the most significant contribution to the new penology practices which is expected to endure, while other methods of treatment may undergo changes beyond recognition. Probation, together with the juvenile court system, has brought to forefront, the personal needs and social problems behind the concepts of crime and punishment. It has helped in creation of new attitudes towards offenders and extended the function of criminal justice administration beyond traditional sentencing. However, with a view to making the system more effective and efficient, the following suggestions may serve a useful purpose:A. Probation must be based on a thorough investigation into the case history of the offender and the circumstances associated with his crime. While treating offender, his physical traits and psychological conditions must be thoroughly considered. It must be thoroughly considered. It must be remembered that individualised method of treatment essentially implies differed treatment of offenders according to their individual needs and personality. This is an important factor in the process of probation. B. Prediction tables should be compiled and used for planning strategies. Such tables may help in anticipating the probable result of correctional treatment on different offenders. Prediction tables are being extensively used in the treatment of offenders in the U.S. and have proved immensely helpful in estimation of offender’s personality for individualised treatment. C. The success or failure of probation in case of juvenile delinquent largely depends on his home condition and family surroundings. Experience has shown that juveniles from broken homes show scant regard of rehabilitative process while those having good family background respond favourably to the correctional methods of treatment under probation. D. The provision contained under section 5 of the Act which provides for compensation by the probationer to the victim of his crime is kept in suspended suspension. The court should make extensive use of this provision in view of emerging trends in victimology and it should be made obligatory for the court to record special reasons for not passing the order for victim’s compensation.

110

An article entitled, "What is Responsible for Probation and Post-probation Outcome?" published in the Journal of Criminal Law and Police Science (March-Apl.1957) pp. 667-76.

E. Excessive control and supervision on the delinquent tends to make him hostile towards the probation personnel and he may adopt an attitude of indifference and non-co-operation towards them. Obviously, no one likes to be under constant surveillance. Conversely, slackness in supervision may also lead to equally fatal consequences which might retard the progress of delinquent under probation. Therefore, a sturdy policy of mutual trust and no-interference of natural process of growth of the probationer appears to be the best policy so far treatment of probationer is concerned. F. Recidivists have often proved a failure in the process of probation. It has therefore, been generally accepted that probation should only be confined to the cases of juveniles, first offenders and women offenders. G. It is generally argued that the system of probation involves discriminatory process and therefore, violates the constitutional provisions contained in Article 15 and 21. To obviate this charge, it is suggested that a minimum and maximum limit of sentence may be prescribed under the law and release of delinquent on probation should be in between those two extreme limits depending upon his corrigibility and response to correctional treatment. H. Though probation as a punitive measure to crime is extensively being used in India, yet there is an urgent need to extend the system to rural courts where there is general lack of social agencies to undertake the task of rehabilitation of the offenders. There are reasons to believe that rural delinquents shall be more responsive to this correctional method of treatment than urban offenders because of their relatively simple life-style. I. The quality of probation service must be improved by making the service conditions of probation staff more lucrative. This will attract well-qualified and competent persons to the profession. The probation personnel ought to be specially trained so that they can discharge their duty as probation officer competently. J. A nation-wide uniform scheme of training of probation personnel with emphasis on social-work and rehabilitative techniques would serve a useful purpose to improve the efficacy of probation in India. The probation officer should possess legal qualifications so that they are well conversant with techniques of law and procedure involved in the process of release of offenders on probation. Since, probation work is quasi-judicial in nature; the incumbents to probation service must be duly qualified in legal and social welfare work. K. At present, the work of probation is assigned to different departments in various States. In some states, probation service is placed under the Social Welfare Department while in others it functions under the Panchayat Department or the Home Department. It is advisable to have an independent department of

correctional services on the pattern of state of Gujarat at national level to exclusively deal with rehabilitation of offenders, of which probation is one of the techniques. L. It would be useful to organise probation on national level under State tutelage. International Conferences and seminars on probation and its related aspects may help in popularising this reformative mode of treating the delinquents. The co-operation of different social agencies such as schools, the family, the religious institutions and various other institutions including Scout-guides, Girl-guides, Salvation Army etc. should be solicited so that rehabilitation of offenders may be possible within the society itself.

To help offenders become constructive and well-adjusted citizens, society has provided, among other things, correctional institutions and probation and parole services. These three related services have much in common; they also have some marked differences and, as is inevitable in any relationship, they have some conflicts. The concept of Parole: Introduction Before comparing the two concepts of Parole and Probation, it is imperative to understand the concept of parole. Parole has emerged as one of the most acceptable form of correctional device in modern penology. It has been universally recognized as one of the most appropriate methods of treatment of offenders for their reformation and rehabilitation in the normal society after the final release. The concept of Parole: Historically, parole is a concept known to military law and denotes release of a prisoner of war on promise to return. These days parole has become an integral part of the criminal justice system, inter-twined with evolution of changing attitude of the society towards the crime and criminals. Meaning: The dictionary meaning of "parole" is: The Concise Oxford Dictionary - (New Edition) "The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour" Black's Law Dictionary - (6th Edition) "Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order." According to the Law Lexicon, "Parole" has been defined as: "A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole." As defined by J.L.Gilli, “parole is the release from a penal or reformative institution, of an offender who remains under the control of correctional authorities, in an attempt to find out whether he is fit to live in the free society without supervision.” It is the last stage of correctional scheme of which probation be the first. The life in a prison is so restrictive and rigid that it hardly offers any opportunity to the offender to rehabilitate himself.

It is, therefore, necessary that in suitable cases the inmates should be released under proper supervision from the prison institute after serving a part of their sentence. This may serve a useful purpose for their rehabilitation I the society. This object is accomplished by the system of parole which aims at restoring the inmate to the society as a normal law abiding citizen. Another criminologist, Donald Taft characterizes parole as a release method which retains some control over prisoners, yet permits them more normal social relationships in the community and provides constructive aid at time they most need it. According to him, “parole is release from prison after part of the sentence has been served, the prisoner still remaining in custody and under stated conditions until discharged and liable to return to the institution for violation of these conditions. The ultimate significance of parole lies in the fact that it enables the prisoner a free social life yet retaining some effective control over him. Every prisoner is carefully watched and one who shows potentiality for correction and responds favourably to the disciplined life inside the prison, is allowed considerably liberty and finally released to join the society conditionally. Thus, parole is essentially an individualized method of treatment of offenders and envisages a final stage of adjustment of the incarcerated prisoner to the community. The conditional release from prison under parole may begin any time after the inmate has completed at least one-third of his total term but before his final discharge. The object is to adjust the adjustability of responsive inmates to normal society by offering them suitable opportunity to associate themselves with outside world. A prisoner released on parole is considered ‘in custody’ and he is undergoing punishment as well as receiving assistance while under threat of more severe punishment, that is, return to prison from which he was released. Thus, parole involves both punishment and rehabilitation at one and the same time. As a result of the introduction of parole into penal system, all fixed termsentences of imprisonment above 18 months are subject to release on licence. Parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of imprisonment. Release on parole is a part of the reformative process and is expected to provide opportunity for the prisoner to transform himself into useful citizen. Judicial Approach: The Supreme Court, in Smt. PoonamLatav. Wadhawan&Ors. 111, has clarified that parole is a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not, in any way, change the status of the prisoner.

111

AIR 1987 SC 1383.

In yet another case, Avtar Sigh v. State of Haryana112, the Supreme Court observed that generally speaking, the act of granting parole is an administrative action and parole is a form of temporary release from prison custody, which does not suspend the sentence of the period of detention, but provides conditional release from the prison and changes the mode of undergoing the sentence. In the case of Dadu @ Tulsidasv. State Of Maharashtra113, it was held by the Supreme Court that Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. "Parole" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence. Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. Dealing with the concept of parole and its effect on period of detention in a preventive detention matter, the Apex Court in PoonamLata v. M.L. Wadhawan114 held: "There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.” 112

(2002) 2 SCC (Cri.) 504. 2004 (6) scc 437. 114 1987 (3) SCC 347. 113

Thus, parole is not a suspension or curtailment of sentence originally imposed by the court, but it is only a substitution, during continuance of parole, of lower type of punishment by confining the parolee in legal custody, and under the control of warden, within specified bounds outside the prison. 115 Comparing Bail and Parole: In the case of State of Haryana v. Mohinder Singh116, it was laid down that Parole and Bail are two different concepts. "Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety. In Halsbury's Laws of England 117, the following observation succinctly brings out the effect of bail: The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned. 'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. Relationship between Probation and Parole: The two concepts of Probation and Parole are closely related. They have similar responsibilities, and similar values; their services are based on similar theoretical assumptions and orientations; they employ common work methods and techniques; they face similar problems. Similarities: These are some of the common features that form the basis for the mutual interest and the cooperation that prevail among the workers in these services. 118

115

State of Haryana v. Mohinder Singh, (2000) 1 J.T. (SC) 629. 2000 (3) SCC 394. 117 4th Edn., Vol.11, Para 166. 118 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4656&context=jclc last accessed on 27/02/2016. 116

A. Similar Responsibility Each field has a responsibility to the offender, to society, and to itself. To the offender, these services are responsible for assisting him with his personal adjustment and his relationship to society. To society, they are responsible for its well-being and for protection from the offender. To themselves, they are responsible for the development of a body of knowledge and skills and for transmitting it to others in their own and related services. B. Similar Values The workers in these services hold many values in common. More explicitly, they appreciate and recognize the worth and dignity of the individual. They are concerned with the offender's morale and self-respect and his feelings of personal worth and courage. Probation, parole, and institutional people all emphasize trying to understand and help the offender, but they are not sentimental about their assistance to him. Rather, high value is placed on his individual responsibility, personal discipline, fair play, and uprightness. Probation and parole agents and institutional workers hold the values of industry and efficiency, intellectual and job freedom in great respect. These values guide their day-to-day work and play a large part in the forward surge of these services today. C. Similar Theoretical Assumptions The three services assume, at least tacitly, that antisocial behaviour, like other human behaviour, is an attempt by the individual to establish some kind of harmony between his continuously changing personality needs and the demands of the environment; that antisocial behaviour is an adaptive effort even though it is a delinquent or criminal effort; and that the offender, in making such an effort, is conditioned by his life experiences and influenced by the meaning that the current situation has for him. On these premises, these three services assume that people who manifest antisocial behaviour can be treated through well planned programs-programs that can responsibly engage the offender and help him cope with his problems and modify his behaviour. D. Similar Orientations Probation, parole and institutional services have developed some effective ways of approaching their particular work problems. The workers in these services, guided by their previous experiences and by theoretical ideas, have thoroughly explored the difficulties of their work to gain intimate, first-hand knowledge about the problems facing them. By" judiciously checking and sifting their observations, facts, ideas, and theoretical formulations, the people of these services make their diagnostic judgment about the problems at hand and decide on appropriate measures for their remedy. This is their common orientation to their work.

In the case of Gagnon v. Scarpelli119, it was observed by the U.S. Supreme Court that Probation and Parole are two different concepts. A line of distinction was drawn between the two correctional schemes. Differences: While probation and parole are both considered community corrections and involve supervision in the community, they differ in other respects. Probation is a sentencing option available to local judges. Convicted offenders are released by the court to serve a sentence under court-imposed conditions for a specified period. It is considered an alternative to incarceration. In most cases the entire probation sentence is served under supervision in the community. The court retains the authority to supervise, modify conditions, cancel probation and resentence if the probationer violates the terms of probation. In contrast to probation, parole is the early release of inmates from correctional institutions prior to the expiration of the sentence on the condition of good behaviour and supervision in the community. It is also referred to as supervised release, community supervision, or after-care. The parole board is the legally designated paroling authority. The board has the authority to release on parole adults (or juveniles) who are committed to correctional institutions, to set conditions that must be followed during supervision, to revoke parole and return the offender to an institution, and to discharge from parole. Thus, probation is a front-end decision that is made prior to incarceration in a jail or prison, while parole is a back-end decision to release inmates from jail or prison. Community corrections include traditional probation and parole as well as other sanctions such as intensive supervision, restitution, community service, correctional boot camps, and fines. Frequently these alternative punishments or intermediate sanctions come under the jurisdiction of the agencies responsible for the administration of probation and parole. Further, taking into consideration, the Indian perspective, the concepts of Probation and Parole can be distinguished as follows: A. As to their historical evolution, the system of probation owes its origin to John Augustus of Boston who around 1841, tried to convince the judge of Magistrate’s court that certain offenders would respond well to his supervision if committed to his care rather than jailed. The parole, on the other hand, came into existence later somewhere around 1900. B. A prisoner can be release on parole only after he has already served a part of his total sentence in a prison or a similar institution. Thus, it essentially involves an initial committal of offender to a certain period of imprisonment and conditional release subsequently after serving a part of the sentence. But in 119

411 U.S. 778 (1973).

case of probation,

no sentence is imposed, or if imposed, it is not executed. This, in other words,

means that probation is merely the suspension of sentence and is granted as a substitute for punishment whereas parole is granted to a prisoner when he has already lived in prison or a similar institution for a certain minimum period and has shown propensity for good behaviour. C. According to Dr. Sutherland, a probationer is considered as if undergoing “treatment” while he is under the threat of being punished if he violated the conditions of probation; but a parolee is considered to be in “custody” undergoing both punishment and treatment while under the threat of more severe punishment i.e. return to the institution from which he has been released. D. Another notable distinction between Probation and Parole is that former is a judicial function and latter is a quasi-judicial function. Probation implies a procedure under which a person found guilty of an offence is released by the court without imprisonment subject to conditions imposed by the court and subject to supervision of the probation staff. In case of parole, a prisoner is released from prison to the community prior to the expiration of his term of sentence subject to conditions imposed by the Parole Board. Thus, the release of parolee is not the result of a judicial decision. E. It has been alluded by J.L. Gillinthat probation is probably of the first stage of correctional scheme, the parole being the last stage. F. Probation and Parole also differ from each other from the point of view of stigma or disqualification attached therewith. There is no stigma or disqualification attached to an offender who is released on probation of good conduct, but a prisoner released on stigmatisation as a convicted criminal of the society. The advantages of probation and parole have been mentioned in the terms of protection of offender’s personality from the contaminating influence of prison life. The released offender has an advantage of continuing to have a normal social relationships and his employment. The offender is also spared of the stigma of a prison sentence making the task of rehabilitation easier. A study in Michigan State of the USA proved that it is more economical to conduct probation services than to construct new prisons and maintain them. It is also pointed out that unlike the dependents of an offender sent to prison; the dependents of a probationer do not have to be supported by welfare agencies. Conclusion: The object of the criminal justice system is to reform the offender, and to ensure the society its security, and the security of its people by taking steps against the offender. It is thus a correctional measure. This purpose is not

fulfilled only by imprisonment; other alternative measures like parole, admonition with fine and probation fulfil the purpose equally well. The benefit of Probation can also be usefully applied to cases where persons on account of family discord, destitution, loss of near relatives, or other causes of like nature, attempt to put an end to their own lives. Its aim is to reform the offender and to make him see the right path. This can be achieved as has been said previously, not only by legislative action but also by sincerity on the part of the administration. Thus while concluding it can be said that the concept of Probation would be effective only where the judiciary and the administration work together there must be a common understanding between the Magistrate (or) Judge and the Probation Officer. Probation would be effective only when there is a sincere attempt made to implement it. 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 de importance. “All Crime is a kind of disease and should be treated as such” - Mahatma Gandhi