Probation of Offenders Act
“Hate crime, not the criminal.”
The objective of criminal law is to reform the offender than to punish him. The Conventional measure towards curbing of a criminal act was penal, but the modern approach of sentencing balances the needs of community and best interests of accused. Under this technique, a custodial sentence is well replaced with compensation, release on admonition, probation, imposition of fines, community services, etc.
The term probation is derived from the Latin word ‘probable’, which means to test or to prove. It is a treatment device, developed as a non-custodial alternative which is used by judiciary where guilt is established but is considered that prison sentence would do no good. The ongoing debate about imprisonment suggests that solitary confinement of an individual decreases his capacity to readjust to the normal society after the release and association with professional delinquents often have undesirable results. The suspension of sentence under probation serves dual interests 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. It can be understood as a conditional release of an offender on the promise of good behavior. The underlining object of the provisions of this act is that an accused person should be given a chance of reformation.
Laws of probation in India
Section 562 of CrPC, 1898, was the earliest provision to have dealt with probation. After the amendment in 1974, it stands as S. 360 of the CrPC, 1974. Under the provision of this section, the first offender convicted of theft, dishonest misappropriation or any offense under IPC punishable with an imprisonment of not more than two years. Later, the Children act, 1908, also empowered the court to release certain offenders on good conduct. A similar provision existed in the Children Act, 1960 which was consequently substituted by the Juvenile Justice Act, 1986 and further by the Juvenile Justice Act (Care and Protection) Act, 2000.
In 1956, the Hon’ble Supreme Court noticed that this Act is a milestone in the progress of the modern liberal trend of the reformation in the field of penology. In the case of Musadhan v. State of Maharashtra, it was observed that “the probation of offenders is social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative a reformative treatment to them by government.”
Section 361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation. The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus. Section 562 is intended to be used to prevent young persons from committed to jail, where they may associate with hardened criminals, which may lead them further along the path of crime. This act seeks to give a second chance to the first time offenders or those who have committed crime through ignorance or inadvertence or the bad influence of others and who after reformation might be expected to make good citizens. In that case, the term of imprisonment will have a nasty and contrary effect to what it was expected.
Thus, in 1948 legislature enacted the Probation of Offenders Act, which laid down for the appointment of probation officers, who then will be responsible for giving a pre-sentence report to the magistrate also supervise the accused during the probation period.
Section 4 of the Probation of Offenders Act, empowers the court to release the certain offender on probation of good conduct.
Section 6 of the same act lays down special onus on the judge to give reasons as to why probation is not awarded for a person below 21 of years age. The court is also to call for a report from the probation officer before deciding not to grant probation. To consider a case for probation, there is no distinction made on the ground of sex, but the section applies only when no previous conviction is proved against the offender.
In addition to the above enactments, the Juvenile Justice (Care and Protection) Act, 200 also provides for the release of children who have committed offenses to be released on probation of good conduct.
Judicial Precedents (Cases) on Probation of Offenders Act
In the case of Ahmed v. State of Rajasthan, it was held that the benefit of this Act could not be extended to a person who has indulged in an act which has resulted into an explosive situation leading to possibilities of communal tension.
Supreme Court in the case of Keshav Sitaram Sali v. State of Maharashtra, it was held that in a case of petty theft the High Court should have extended the benefit of either section 360 of the CrPC or sections 3 and 4 of the Probation of Offenders Act to the appellant instead of imposing a sentence of fine on him.
In Basikesan v. State of Orissa, it was considered that an offender of 20 years was found guilty of an offense punishable under section 380 of IPC and no previous conviction was proved against him. The court held that the offense committed by the accused was not out of deliberate preparation or design but it was a fit case for application of section 3 and he was released after due admonition.
In the case of State of Maharashtra v. Natverlal, the case of gold smuggling, SC has declined to accord to the accused found guilty, the benefit of Probation of Offenders Act because smuggling of gold not only affects public revenue and public economy but often escapes detection.
Hence, to conclude, the concept of probation would be effective only when the judiciary and administration work together efficiently. It would be beneficial for our country where jails are overcrowded, and the country needs more working youth.
 India legal S, “Probation: A Study In The Indian Context – Probation of Offenders Act” (Probation: A Study In The Indian Context – Probation of Offenders Act) <http://www.legalserviceindia.com/articles/pro_bat.htm> accessed January 15, 2019.
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