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PROBATION

Table of Contents

QUESTION BANK

Q.1 Critically enumerate the problems of probation.

Q.2 Explain fully the powers and procedures of Court in relation to probation of offenders.

Q.3 Explain judicial trend in respect to probation of offenders.

Q.4 What is probation? What is the difference between probation and suspended sentence?

SHORT NOTE

a) Probation of offenders Law.
b) Suspended sentence.
c) Standards of probation services.
d) Probation as a correctional measure.

SYNOPSIS

Introduction –
Definition –
Prof. Taft
According to Cambridge Dictionary ‘
According to Encarta

Ingredients of Probation –

III. Distinction between ‘Probation’ and ‘suspended sentence’ –

Distinction between ‘Probation’ and ‘Parole’ –
Provision of the Probation of Offenders Act, 1958 –
Probation officers (S.13) –

VII. Duties of probation officer(S.14)-

I. Introduction:-

Subjecting convicts to imprisonment creates problems like 1) prisons are overburdened. 2) prisoners depend upon others. 3) he lives with other co-prisoners who may be hardened criminals etc., to avoid these problems of the prison system, ‘probation’ is used in selected cases.

In Rampal v. State of U.P[1]

Allahabad High Court held that the intention of the law is to afford an opportunity to a person found guilty of a crime for the first time, particularly a person of young age, to reform himself and to come into the mainstream of society unless the facts of the case, the nature of the crime, and the antecedent of the accused do not warrant his release.

II. Definition:-

Prof. Taft defines ‘probation’ as ‘the postponement of final judgement or sentence in a criminal case, giving the offender an opportunity to improve his conduct and to re-adjust himself to the community, often on the condition imposed by the Court and under the guidance or supervision of an officer of the Court.
According to Cambridge Dictionary, ‘Probation’ means a period or time when a criminal must behave well and do not commit any more crimes in order to avoid being sent to prison[2].
According to Encarta, “Probation means the supervision of the behaviour of a young or first-time criminal offender by a probation officer. During the period of supervision, the offender must regularly report to a probation officer and must not commit any further offences.”

Thus, the objects of Probation are –

(1) to reform offenders,

(2) to reduce crimes,

(3) to reduce overcrowding in the jail.

In other words, Probation is a conditional suspension of punishment. An offender may be released on ‘Probation’ in two ways. Firstly, he may be released on probation after a sentence (of imprisonment) is passed against him. In such cases, the sentence is suspended, and the delinquent (offender) is placed under Probation. In this case, suspension of the sentence refers to the suspension of execution of the sentence awarded. Secondly, the offender may be released on ‘Probation’ after conviction but without passing a sentence (of imprisonment). In this case, he is put directly on ‘Probation’ without passing a sentence. In such a case, the imposition of sentence is suspended.

Ingredients of Probation:-

We may lay down the following characters of ‘Probation’ viz. –

(1) No punishment is imposed initially (even though he is found guilty of a crime).

(2) The offender is given a fixed period for his good behaviour.

(3) During this period, he is placed under the supervision of a ‘Probation officer’.

The reasons are two-fold – viz. –

a) ‘Probation Officer’ keeps the Court informed about his programs and
b) the Officer helps the offender to make the best use of the opportunity given to him.

(4) If, during this period offender responds favourably, his initial crime is forgiven. But if he fails to respond favourably, he may be brought back to Court and sentenced for the original crime and also for any other crime which he might have committed.

III. Distinction between ‘Probation’ and ‘suspended sentence’:-

‘Probation’ has its historical roots in ‘suspended sentence’. Both are closely linked with Court procedure. However, they differ in many respects – viz.

In all, ‘Probation’ sentences are either suspended or differed. However, all ‘suspended sentences’ are not probations.
The ‘Probation’ carries with it some degree of supervision through a probation officer’ whereas supervision is not necessary for a suspended sentence.
Over ‘suspended sentence’, ‘suspending to pass sentence is preferred. This is because the suspension of a sentence pre-supposes the existence of punishment, which carries the stigma of an offence. Whereas, in “suspending to pass sentence” or ‘differing to pass sentence’ or probation, there exists no such stigma.

IV. Distinction between ‘Probation’ and ‘Parole’:-

Parole is the conditional release of an offender who has already served a portion of a sentence in a correctional institution, whereas probation is a release without a sentence.
While on parole, the released prisoner remains in custody and under the supervision of the paroling authority, whereas, while on Probation, the ‘offender’ remains under the supervision of the Probation Officer.
The parole period may be as long as the time the prisoner would otherwise have served in the institution, or it may be terminated earlier. In contrast, the probation period does not exceed three years.
Parole may be revoked for violating parole regulations, and the violator is brought to the institution to serve the remainder of his sentence in confinement. However, in violation of the Probation order, the Court order’s sentence, or if the sentence is already declared, the offender is subjected to undergo differing punishment.

V. Provision of the Probation of Offenders Act, 1958:-

The Parliament passes this Act. Power of court to release offenders after admonition (S.3). Admonition is to warn strictly. As per S.3. The Act is meant to empower the Court to release an offender after admonition in respect of certain specified offences[3]. Power of court to release certain offenders on probation of good conduct (S.4). It has also been proposed to empower courts to release on Probation in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life[4]. With respect to offenders under 21 years of age, special provisions have been made to restrict their imprisonment[5]. During the probation period, the offender remains under the supervision of the probation officer in order to cause reform in him. He is put under probation officers’ supervision to make him a useful member of society. He may be sentenced to the punishment if he fails to observe the conditions imposed[6].

Provisions of Ss. 360[7], 361 of the Cr. P.C vis- a- vis[8], Ss. 3 and 4 of the Probation of Offenders Act:-

360 of the Cr. P.C provides that-

When any person not under twenty-one years of age-

– is convicted of an offence punishable with a 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, after regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may,

-instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour

361 of the Cr. P.C provides that- Special reasons to be recorded in certain cases-

Where in any case, the Court could have dealt with-

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

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

In Gulzar v. State of M.P[9]

Supreme Court observed- that where the provisions of the Probation of Offenders Act are applicable, S. 360 of the Code is not to be applied. Yet the legislature has obliged the Court under S. 361 of the Code to apply one or the other beneficial provisions, be it S. 360 of the Code or the provisions of the Probation of Offenders Act. Sub-section (10) of S. 360 of the Code gives the upper hand to the provisions under the Probation Act over S. 360.

The difference between S. 360 and S. 3 and 4 of the Probation Act are laid down in this case as

1) S. 360 of the Code relates only to a person, not under 21 years of age, convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less to any person under 21 years of age or any woman convicted of an offence not punishable with a sentence of death or imprisonment for life. The scope of S. 4 of the Probation of Offenders Act is much wider because it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life.

2) S. 360 does not provide any role for the probation officer in assisting the court in relation to supervision and other matters. At the same time, the Probation of Offenders Act does make such a provision.

3) S. 12 of the Probation Act states that a person found guilty but released on probation does not suffer disqualification, if any(i.e. it does not carry the stigma of conviction). In contrast, there is no such provision under the Cr. P.C.

VI. Probation officers (S.13):-

(l) A probation officer under this Act shall be-

(a) a person appointed to be a probation officer by the State government or recognised as such by the State Government, or

(b) a person provided for this purpose by a society recognised on this behalf by the State Government or

(c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case.

(2) The court which passes an order under Section 4 or the district magistrate of the district in which the offender, for the time being, resides, may, at any time, appoint any probation officer in the place of the person named in the supervision order.

Explanation. For the purposes of this section, a presidency town shall be deemed to be a district, and the Chief Presidency Magistrate shall be deemed the district’s district magistrate.

(3) A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the District Magistrate of the district where the offender resides for the time being.

VII. Duties of probation officer(S.14):-

A probation officer shall, subject to such conditions and restrictions as may be prescribed,-

(a) inquire, in accordance with any directions of a court, into the circum stances or home surroundings of any person accused of an offence to assist the court in determining the most suitable method of dealing with him and submit reports to the court;

(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment;

(d) advise and assist, in such cases and in such manner as may be prescribed,

(e) perform such other duties as may be prescribed.

*****

[1] 1992 Crimes (2) 434

[2] According to S. Cunnings, “Probation is a method of discipline and treatment. If probationers are carefully chosen and the supervisory work in performed with intelligence and understanding, we can work miracles in rehabilitation.”

[3] S. 3. Power of court to release certain offenders after admonition-

When any person is found guilty of having committed an offence punishable under S. 379 or S. 380 or S. 381 or S. 404 or S. 420 of the Indian Penal Code, or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the I.P.C or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under S. 4, release him after due admonition.

Explanation- for the purpose of this section, previous conviction against a person shall include any previous order made against him under this section or S. 4.

[4] S.4 Power of court to release certain offenders on probation of good conduct–

(1) when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any. of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender,

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxication or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall ex- plain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each or the offenders, the sure- ties, if any, and the probation officer concerned.

[5] S. 6 Restrictions on imprisonment of offenders under twenty-one years of age-

(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it should not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment or- the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3or section 4 with an offender referred to in sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

[6] S. 9 Procedure in case of offender failing to observe conditions of bond .-

(1) If the court which passes an order under section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.

(2) The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.

(3) If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith-

(a) sentence him for the original offence; or

(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offence

[7] 360 Order to release on probation of good conduct or after admonition-

(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour : 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 such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under 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 far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his 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. Corresponding old law.-Sections 562. 563 and 564 of the Code (V of 1898).

[8] Verses.

[9] 2007 Crimes (Supreme Court) 1- 117.