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An accused person should be given a chance of reformation that he would lose if he is incarcerated in prison and associates with hardened criminals.
The object of Criminal Law is more to reform the offender than to punish him. Instead of keeping an accused with hardened criminals in prison, the court can order personal freedom on the promise of good behaviour and order a period of supervision over an offender. This is what we generally call 'Probation.' Simply, it can be understood as 'the conditional release of an offender on the promise of good behaviour.'
Section 562 of the Code of Criminal Procedure, 1898, was the earliest provision to have dealt with probation. After the amendment in 1974, it stands as S.360 of The Code of Criminal Procedure, 1974.
The Probation of Offenders Act 1958 contains elaborate provisions relating to offenders' probation, which are made applicable throughout the country. The Act provides four different modes of dealing with youthful and other offenders in lieu of sentence, subject to certain conditions. These include:—
(1) Release after admonition;
(2) Release on entering a bond on probation of good conduct with or without supervision, and on payment by the offender the compensation and costs to the victim if so ordered, the courts being empowered to vary the conditions of the bond and to sentence and impose a fine if he failed to observe the conditions of the bond;
(3) Persons under twenty-one years of age are not to be sentenced to imprisonment unless the court calls for a report from the probation officer or records reasons contrary to writing; and
(4) The person released on probation does not suffer a disqualification attached to a conviction under any other law.
It must be stated that the provisions of the Probation of Offenders Act are not confined to juveniles alone, but extend to adults also. Again, provisions of the Act are not only confined to 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.
In recent times, the emphasis is on the offender's reformation and rehabilitation as a self-sufficient and useful member of society, without subjecting him to the deleterious effects of jail life.
This relates to probation's measure, which may be used by the courts as an alternative and is increasingly being used.
'Probo' is a Latin word, which means 'I prove my worth,' i.e., to see whether he can live in a free society without breaking the law. 'Probatio' means 'test on approval.' Webster dictionary meaning of probation is the Act of proving, proof, any proceeding designed to ascertain character. Thus probation means a period of proving or trial. The offender has to prove that he is worthy of probation.
Probation is a socialized penal device, an extramural alternative of institutionalization. It has come about as the result of modification over a period of time of doctrine of deterrence into the principle of reformation. This development paved the way for introducing the clinical approach and the principle of individualization in the handling of offenders.
Probation means enlarging a person subject to commit meant by the suspension of sentence, during the regularity of conduct, and imposing conditions and on default thereof arresting and committing him until imprisonment is served or the judgment is satisfied. It is a substitute for imprisonment, a conditional suspension of sentence.
The term 'Probation' is derived from the Latin word 'probare', (i) which means to test or to prove. It is a treatment device developed as a non-custodial alternative used by the magistracy where guilt is established, but it is considered that imposing a prison sentence would do no good. Imprisonment decreases his capacity to readjust to the normal society after the release, and association with professional delinquents often has undesired effects.
According to the United Nations, Department of Social Affairs, The release of the offenders on probation is a treatment device prescribed by the court for the persons convicted of offences against the law, during which the probationer lives in the community and regulates his own life under conditions imposed by the court or other constituted authority, and is subject to the supervision by a probation officer. (ii)The suspension of sentence under probation serves the dual purpose of deterrence and reformation. It provides necessary help and guidance to the probationer in his rehabilitation, and at the same time the threat of being subjected to unexhausted sentence acts as a sufficient deterrent to keep him away from criminality
Probation seeks to accomplish the rehabilitation of persons convicted of a crime by returning them to society during a period of supervision rather than by sending them into the unnatural and all too often, especially unhealthful atmosphere of prisons and reformatories. (Attorney General's Survey of Release Procedure, Vol II, 1939 Page 1)
The probation system is based on the reformative theory. It is a scientific approach. It is a rational approach towards the causation of young offenders' crime, and thus they can be saved from becoming habitual offenders by dumping them into jails. The probation officer insists on the offender's problem or need and tries to solve his problem and see that the offender becomes a useful citizen of society.
The object of probation is to bring lawbreakers and anti-social persons into willing cooperation with the community he is a member, thus giving him security, which he needs and social protection against his attacks on person or property.
ii) Probation's function is to effect improvement in the character of the offender and permanent rehabilitation and reformation of the offender.
iii) Probation involves the moulding of the individual's habits in a more constructive way.
iv) Its a substitute to imprisonment. Punishment will not serve the purpose in all cases of offenders.
v) The object is that an accused person convicted of a crime should be given a chance of reformation that he would lose by being incarcerated by prison.
Release on Probation
As per Section 4, if 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.
The section further requires that the offender or his surety has a fixed place of residence or regular occupation where the court exercises jurisdiction. Also, before making any such order, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. However, it is not necessary that the court has to act on the probation officers' report. It can also gather information from other sources and on its analysis.
The court may also require the offender to remain under the supervision of a probation officer during certain periods if it thinks that it is in the interests of the offender and the public. It can also impose appropriate conditions that might be required for such supervision. In case the court does specify such conditional release, it must require the offender has to enter into a bond, with or without sureties, enumerating the conditions. The conditions may relate to the place of residence, abstention from intoxicants, or any other matter as the court thinks appropriate to ensure that the crime is not repeated.
The non-obstante clause in section 4 of the Act is a clear manifestation of the legislatures' intention that the provisions of the Act would have effected notwithstanding any other law for the time being in force.
It is a general section under which the benefit is extended to offenders under 21 years of age and offenders above 21 years of age. Discretion is exercised by the court while giving the benefit of probation to the offenders above 21 years of age. No reasons are to be recorded when the benefit of probation is granted to the offenders above 21 years of age.
Section 4 laid down that the court shall consider the report of the P.O. if any. It is not obligatory on the court to call for and consider the P.O. report in terms of section 4(2).
An order of release on probation came into existence only after the accused is found guilty and convicted. Thus, the conviction of the accused or the court's finding that he is guilty cannot be washed out at all because that is the sine quo non for the order of release on probation of the offender. The order of release on probation of the offender is merely in substitution of the sentence to be imposed by the court. This has been made permissible by the c statute with a humanist point of view to reform youthful offenders' ad to prevent them from becoming hardened criminals.
The word character is not defined in the Act. Hence it must be given the ordinary meaning. The provision of Section 4 vests in the court a discretion to release a person found guilty of having committed an offence not punishable with death or imprisonment for life.
It is really for the court, by which the person is found guilty, to determine, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, whether or not it will be expedient to release him on probation of good conduct. It is only when the court forms an opinion that the offender should be released on probation of good conduct in a given case that the court acts as provided in Section 4[iv].
Power is discretionary – While granting the benefit under the Act, the court shall take into consideration the nature of the offence. If the offence is not trivial in nature, the court should not be lenient in granting such a benefit. [v] Power to release on b probation is discretionary and has to be exercised in appropriate cases. [vi]
Conditions to be satisfied for application of Section 4:
(1) The offence committed must not be one punishable with death or imprisonment for life.
(2) The court must opine that it is expedient to release him on probation of good conduct instead of sentencing him to any punishment and
(3) The offender or surety must have a fixed place of abode it regular occupation in a place situated within the court's jurisdiction.
Relevant factors to be taken into consideration. The convicts have no indefensible right to be released. The right is only to be considered for release on license in terms of the Act and the rules. The probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining to release a convict.
The provision of section 4 vests in the court a discretion to release a person found guilty of having committed an offence not punishable with death or imprisonment for life. It is really for the court, by which the person is found guilty, to determine to have regard to the circumstances of the case, including the nature of the offence and the character of the offender, whether or not it will be expedient to release him on probation of good conduct. It is only when the court forms an opinion that in a given case the offender should be released on probation of good conduct the court acts as provided in section 4. [vii]
A wide discretionary jurisdiction has been conferred on the courts to release the convicts not involved in very heinous offences, on probation instead of incarcerating them to prison. The main object of awarding punishment is the prevention of crime and reformation of the offender
The law's policy is that where an offence is an overly heinous one, the grant of probation is ruled out as a matter of law. The heinousness of the offence and its deleterious effect on the body politic, is in the eye of the law, "if not fundamental, a very relevant factor for the grant or refusal of probation. "
In Dasappa v. State of Mysore, [viii] it is laid down as follows:
"It is only when the court forms an opinion that the offender in a given case should be released on probation of good conduct that it has to act as provided by Section 4 of the Act. It was for the accused to have placed all the necessary material before the court, which could have enabled it to consider that the first accused was an offender to whom the benefit of section 4 would be extended ".
It was settled law that nobody can claim benefit under P.O. Act as a matter of right. It was observed in State Of Sikkim vs Dorjee Sherpa And Ors, [ix] that decisions reported in Masarullah v. State of Tamilnadu and 1981 (Supp) SCC 17 Aitah Chander v. State of A.P. have also been referred to contend that the court should not take technical views in such cases and should take into consideration some other aspects such as the possibility of losing the job, for invoking the provisions of Probation of Offenders Act even in serious offences. It has further been contended that the court should also consider that the convicts belonging to middle-class families without any criminal antecedent often become victims of circumstances because of undesirable company and other evil influences available to such a young generation. Provisions of Probation of Offenders Act, 1958 normally cannot be applied to the following offences:
1. ACB cases (AIR 1983, SCC 359).2. Section 304 part-II of IPC,
3. NDPS Cases ( (2002) 9 SCC 620),4. Section 304-A (AIR2000 SC 1677),
5. Section 325 IPC,
7. Kidnap and, abduction (AIR 1979 SC 1948),6. Sections 409, 467, 471 IPC (AIR 2001 SC 2058 ;),
8. Habitual offenders, (Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117), etc.
Section 4 is similar to sub-sections (1) and (7) of Section 360 of the Code of Criminal Procedure, 1973, which are stated as follows:
(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it, appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing, him at once to any Punishment, direct that he be released on his entering into a bond, with or without sureties to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in the meantime to keep the peace find to be of' good behaviour :
Provided that where the first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of the opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect. And submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(7) The court, before directing the release of an offender under subsection (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.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.