PROBATION OF OFFENDERS ACT, 1958.

LAW OF PROBATION IN INDIA UNDER PROBATION OF OFFENDERS ACT, 1958.  ‘CONTRADICTIONS AND INCONSISTENCIES’ IN ITS APPLICATION

By Dr. T. Padma.,

 LL M., PhD (Law)

I.       Introduction

The word ‘probation’ has its origin in Latin word ‘probare’ which means to prove or to test.  This is a system whereby the offender has to prove worthy of not being punished by his conduct.  It has developed gradually and unconsciously. Probation as explained in the field of criminal justice is a method of penal non-institutional treatment of offenders, developed as an alternative to imprisonment out of a realisation that short term sentences specially in case of juvenile and youthful offender, were not only ineffective but also harmful, as these brought the young offenders in contact with the confirmed criminal in prison. Probation is a modern concept of penology. It is a substitute of jail sentence. ‘Probation’ means the conditional suspension of imposition of sentences by the court in selected cases, especially of young offenders, who are not sent to prison but are released on probation, on agreeing to abide by certain conditions.

Probation is one more step in the progressive realisation that the sentence should fit the offenders and not the offence. The sole intension of the legislation in passing probation law is to give persons of a particular type, a chance of reformation which they would not get if sent to prisons. It seeks to bring about desired change of attitude, behaviour, character of the convict outside the four walls of prisons.

From judicial point of view probation is a method of treating (correcting) suitable selected offender by realizing him into the community upon certain conditions prescribed by the court on conviction, before sentencing (him) generally under the supervision of the probation officer.  In the sentencing process, the court is called upon to make, in the second stage of trial, i.e. to choose between the individualized rehabilitative system and the primitive tariff system, having regard to the nature and circumstance of the case and the character and antecedents of the offender.

The traditional concept of crime and punishment has been radically changed in the twentieth century. The focus has now shifted from crime to the criminal. Probation has more important social virtue that it prevents a severance from domestic and family ties and the stigma invariably associated with imprisonment. The focus is on the social justice and human rights.

II.   Law of Probation in USA

The probation law was first enacted in 1878 in the state of Massachusetts in USA followed by other states like Vermont, New England, Rhode Island, Minnesota, Illinois and Colorado. The probation system became available in all the States to juveniles by 1925 and to adults by 1965.  

III.      Law of Probation in India

S. 562 of the old Code (the code of Criminal Procedure 1898) for the first time statutorily recognized the idea of probation of the offenders. Thereafter 1973 Code under Section 360 provides for the same. The code of Criminal Procedure put offenders for the purposes of Probation, into two categories:

(i)    Offenders under age 21 years and women; they can be released on probation if the offence is punishable with punishment of less than death sentence and life imprisonment.

(ii) Other offenders who are the age of 21 year and who is not a woman; and the offence is punishable with punishment up to seven years. 

The Criminal Procedure Code 1973 has focused the attention of the court on this important aspect by referring specifically to section 360, while taking the crucial decision in the matter of sentencing.  Section 360 Cr. P. C. refers to order of release on probation of good conduct or after admonition. The legislature has further taken care to fix the gauge of the sentence, by introducing a new provision in section 361 of the Code of Criminal procedure 1973, on the important aspect of making the primary decision in the sentencing process.  The section reads, “ Special reasons to be recorded in certain cases-wherein any case the court could have dealt with (a) an accused person under section 360 or under the provision of Probation of offender’s  Act 1958 (20 of 1958),  or (b) a youthful offender under the Children Act 1960 (60 of 1966) 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 the judgment the special reasons for not having done so.” 

IV. The Probation of Offenders Act 1958

The Act provides elaborate provisions relating to the probation of offenders. This Act provides four different modes of dealing with offenders in lieu of sentence.

A)     Release after admonition. (sec.9)

B)     Release on entering a bond of probation of good conduct with or     without supervision or on payment by the offender compensation or cost to the victim if ordered.(sec.10)                                                    

C)    Persons under 21 years of age are not to be sentenced to imprisonment unless the court calls for the report from the probation officer or records reason to the contrary in writing.(sec.11)

D)   Person released on probation does not suffer disqualification attached to a 

      conviction under any law.(sec.12) 

V.     Admonition v. Probation

In re: Salem Govindappa Chetty, the Andhra Pradesh High Court released the accused on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, though the accused was convicted under Section 16(1)(a) of the Act of the Prevention of Food Adulteration Act, 1954 on a charge of selling Mysorepak (sweet) containing non-permitted coaltar dye metanil yellow, and even though the accused therein was the owner of the shop, while Jai Narain was the employee. The appellant Jai Narain pitched his tent too high in praying for release after due admonition. He prayed for the relief which even the Supreme Court was not empowered to grant, Section 3 being inapplicable. There is a sharp distinction between release after due admonition under Section 3 and release, on bond, on probation of good conduct under Section 4. It is true that under Section 12 of the Act release under Section 3 or Section 4 is not a disqualification attaching to a conviction of an offence. In case of release after due admonition, the sword does not remain hanging on the accused. The fact that such an order may be set aside under Section 11(4) is a different matter while in case of release on a bond on probation of good conduct the sentence is merely suspended and the sword remains hanging on the accused till the expiry of the bond and in the event of the accused failing to observe the conditions of the bond, he is liable to be dealt with under Section 9, that is, he may be sentenced for the original offence or a penalty may be imposed upon him.

VI.  Pardon v Probation

Probation may also be confused with the pardon but pardon is quite different from it.  Pardon wipes out the guilt and effect of punishment.  In the eye of the law, the offender who is pardoned becomes as good as an innocent person as if he never committed the crime and any disability attached to the offender consequent to punishment stands removed by the pardon but the probation does not wipe out the guilt.  It is a system whereby the offender is in the process of correction within the community life instead of being sent to jail.

VII.         Relevancy of character of an accused in criminal proceedings

In the criminal proceedings the fact that the accused person is of good character is relevant.  Except, however, in case in which the bad character of any person is itself a fact in issue, the fact that the accused person has a bad character is irrelevant.  When evidence has been given that he has a good character, evidence to the contra, may be adduced in rebuttal.  The previous conviction is relevant as evidence of bad character.  The word “Character” includes both reputation and disposition. Character means the estimate in which a man is held by those who are acquainted with him.  The purpose of sentencing is to base the punishment on the personality of the criminal as well as the gravity of the crime.  In the process of sentencing the judge must first differentiate between the offender and others with regard to personality, character, socio-cultural background, the motivation of his crime, and his particular potentialities for reform or recidivism.  Then he must determine which among a range of primitive, corrective, psychiatric and social measures is best adopted to solve the individualised set of problems presented by that offender.

VIII.      When can the provisions of the Act be Invoked            

Section 3 of Probation of offender’s Act may be invoked in the case of offenders found guilty of having committed and offence punishable under section 379 or 380 or 381 or 404 or 420 IPC. or any offence punishable with imprisonment for not more than two years or with fine or with both under the IPC or any other Law unless any previous conviction is proved against the offender.  Similarly section 4 of Probation of offender’s Act lays down that its provisions could be invoked when any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but it is further laid down in both the sections that the courts should used its discretion judiciously having regard to the circumstances of the case including the nature of the offence and the character of the offender.

The following factors are prerequisite for invoking the court’s powers to exercise probation Jurisdiction to release the offender.

(a)  Finding of the court that the person is not guilty of an offence punishable with death or imprisonment for life.

(b)  It is expedient to release the offender on probation of good conduct on the basis of circumstances of the case and nature of the offence and the character of the offender;

(c)  The offender entering into bond with or without sureties that he will appear to receive sentence within a period of three years.

(d)  The report of probation officer, if any.

Some decided cases where the benefit of probation is allowed:

1.      In Ratan Singh v. State of M.P. the appellant in a marriage party in a sudden quarrel pelted a stone which hit the abdomen of the deceased causing injuries to his intestine.  The appellant was convicted under Sections 365 and 323, I P C The appellant, deceased and others were adhivasis. The quarrel had issued in the marriage party on the insistence that the guests should eat more but the guests refused.  The order of conviction was modified to one under Section 337, I P C and the appellant was directed to be released on probation.

2.      In Sardhakar Sahu v. State of Orissa, there was some quarrel between the mother of the petitioner and the wife of another man, Sircar. Sircar asked his wife to return home forthwith. The petitioner dealt blows on the legs of Sircar.  He was convicted and held guilty under Section 324, I P C and was sentenced to undergo 3 months rigorous imprisonment.  Since the incident happened on the spur of the moment and the petitioner was the first offender, it was observed that petitioner should have been dealt with under the Probation of Offenders Act, if the Magistrate had applied his judicial mind in the circumstances of the incident and in the absence of any adverse material regarding the character and antecedents of the offender.  Since the petitioner had already surrendered to the sentence and suffered 25 days’ imprisonment, it was held that injustice would be compounded if the probation was granted at the stage.  Therefore, the sentence was reduced to the period already undergone.

3.      In Masarullah v. State of Tamil Nadu, the appellant was convicted for offences under Sections 452 and 397, I P C for which he was sentenced to 5 years’ and 7 years’ imprisonment respectively. His appeal to the High Court failed.  According to the report of the crime.  He belonged to a lower middle class but respectable family.  His father was a retired school teacher. He fell in bad company and was under the influence of movie in committing the crime.  His brothers and sisters were well settled.  The parents were keen to improve him and supervise him. His sentence was therefore suspended by the Supreme Court and he was put under the supervision of his father. The probation officer was also asked to keep supervision over the appellant.  

IX. When can the benefit of probation be denied

The offences the indicate degradation of conduct on the part of the offender normally cannot be treated with rehabilitative measures. For example, infanticide, offences of rape, criminal assault of a daring nature on an innocent women and an assault on a lonely lady in a jungle in an attempt to commit rape. A distinction could be made between planned, cold-blooded and ruthless violation of a woman and rape committed due to loss of self control, occasioned by intoxication, temporary insanity, a sudden rush of blood or other like cause.  It could, be said that the former class of offenders do not deserve a chance for rehabilitation whereas the latter might.

In the following cases, however, probation was held to be improper.

a)     Theft of a cow for purposes of selling to the slaughter yard.

b)     Offences which require a good deal of preparation.

c)     Cases in which circumstances show the daring and reprehensive nature of the accused.

d)     In case of offenders who omit offences which are easy to commit but difficult to detect.

e)     Criminal breach of trust by a person in charge of public money.

f)      When the accused committed theft in his master’s house and made allegations on the charity of complainant’s wife etc.   

Some decided Cases where benefit of probation was denied

1.      In Smt. Devki v. State of Haryana, a girl of 17 years was kidnapped from her village in Bihar by the accused and brought to Haryana.  There she was forced to sexual submission for commercial objects and was offered for marital sale.  One day, she escaped and sought police help.  The accused had abducted the girl in a taxi and when she cried out, she was medicated to become unconscious.  The appeals for benefit of Probation of Offenders Act was rejected as the accused was well trained in the art of abduction.  Justice Krishna Ayer made and appeal to the State Governments in Bihar and Haryana to put a special squeal on the trail and hound out every such offender.

2.      In State of Maharashtra v. Kaput Chand Kesari mal, the respondent was convicted for an offence under clause (a) read with clause (i) of Section 135 of the Customs Act and clause (b) read with clause (i) of the section and also Rule 126 (H) (IA) read with Rule 126-P (ii) and (iv) of the Defence of India Rules.  He was sentenced to R.I. for 2 years and a fine of ` 20,000/- and in default of payment of fine to a further R.I. for 41/2 months on each of the first two counts and to R.I. for six months and a fine of ` 10,000/- on the third count, and the sentence in default of payment of fine or R.I. for 3 months.

The High Court accepted the prayer of giving the benefit of Section 4 of the probation of Offenders Act on the following grounds—

i.        The contraband gold recovered from the respondent (which amounted to 2015 totals) had been confiscated by the Customs authorities.

ii.     By the time the high Court pronounced its judgment after remand, the respondent had been facing criminal litigation for a period of 7 years which resulted in a lot of monetary expense and mental agony on his part.

iii.   The respondent had already been behind the bars for a period of 5 months.

iv.   No other case on the criminal side was pending against the respondent.

v.      The respondent was not in a position to pay any five.

The supreme Court by a Bench of three Judges set aside the judgment of the High Court giving the benefit of the Probation of Offenders Act and instead restored sentence imposed upon the respondent by the trial Court on each of the three months

3.      In Jannardan Pd. V. State of Bihar, the appellant, a sub-inspector went to take drink at a shop with a loaded revolver.  He held the revolver for the purpose of cleaning it with the knowledge that it had no safety catch. Due to his negligence, an innocent person was killed by the shot. It was held that the lenient view was not possible in view of the facts of the case and the benefit of Probation of Offenders Act could not be extended to him.

4.      In K. Vishwanth v. State of Mysore and another, the accused was a gold-smith and he had gone to Bombay to purchase the smuggled gold.  He purchased it and concealed it in his underwear.  It was held that the smuggling was an anti-social act affecting the economy of the State and therefore it was not desirable to release the offender on the probation of good conduct unless there were special circumstances.  The accused was therefore not released on probation of good conduct.

5.      In State of Maharashtra v. natwar Lal, the accused-respondent was found guilty of an offence under Section 135(1) (a) and (b) of the Customs Act for being in possession of smuggled gold biscuits.  It was submitted for the respondent that the prosecution had been brooding over the head of the respondent that the prosecution had been brooding over the head of the respondent for more than eleven years and the arch criminal who was the owner of the gold biscuits in question had escaped making the respondent a scape-goat. It was also stressed that the accused being a first offender should be released on probation.  The Court did not allow the benefit of Probation of Offenders Act but taking into account all the circumstances of the case, particularly the criminal proceedings hanging over the respondent, as a sword of Damocles, for more than 11 years sentenced him cumulatively to 6 months, R. I. and a fine of ` 2000/- and in default of it to suffer a further imprisonment of four months. Justice Sarkaria observed:  “ Undoubtedly, this long delay is a factor which should along with other circumstances, be taken into account im mitigation of the sentence.  Even so in case of gold smuggling, we are loath to accord to the accused found guilty, the benefit of Probation of Offenders Act.  Smuggling of gold not only affects public revenue and public economy but often escapes detection.

6.      In Govindammal v. Senga Gounder and others, it was held that the bigamy was a very serious offence punishable with 7 years’ imprisonment and fine.  It was held that the application of the provisions of Section 4 of the probation of offenders Act to such offenders was highly undesirable.  No opportunity should be lost to reform the offender if there was any possibility of it but at the same time there should not indiscriminate used of the probation provision without having regard to the circumstances of the case including the nature of the offence and the character of the offender.

7.      In Uttan Singh v. Delhi Administration, the accused appellant was arrested and presented under Section 292 for selling the playing cards portraying on the reverse luridly obscene pictures of men and women in pornographic sexual postures.  He was convicted by the trial Court.  The high Court affirmed the conviction as well as sentence of six months’ rigorous imprisonment and a fine of ` 500/- and in default of it a further rigorous imprisonment for three months.  In the special leave before the Supreme Court, the argument was that the sentence was very sever and that he was entitled to be released on probation under Section 4 of the probation of Offenders Act, 1958.  Justice P.K. Goswami of the Supreme Court observed that the accused could not be given lenient treatment for the offences of this kind which corrupt the minds of the people more likely young generation.

According to Justice Goswami. The offences of corrupting internal fabric of mind have got to be treated on the same footing as the case of food adulteration. 

X.    Cases where there are contradictions and inconsistencies Under Prevention of Food Adulteration Act, 1954

To an offender convicted under the provisions of an offence falling under the Prevention of Food Adulteration Act, the probation of Offenders Act and Section 360 of the Code of Criminal procedure, 1973 do not apply unless the person convicted of an offence is under 18 years age.  This provision was brought in the Act by an amendment of the Act in 1976.  The benefit of the provision of the Probation of Offenders Act should not extend to the food adulterators since they create health hazards unless the offenders are not mature enough.

1.      Jai Narain v. Municipal Corporation of Delhi

The appellant Jai Narain was an employee in a sweetmeat shop at New Delhi. On March 15, 1967 a Food Inspector of the Municipal Corporation of Delhi purchased "Patisa" from him which, according to the report of the Public Analyst, were prepared with unpermitted coaltar dye. The presence of unpermitted coaltar dye rendered patisa adulterated under Section 2(i)(j), read with Rules 28 and 29 of the Prevention of Food Adulteration Rules, 1955. Its sale is prohibited under Section 7(i) and is at penal offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. Under Section 16(1)(a) the offence is punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than ` 1000. The appellant was found guilty by the trial Magistrate under Section 7(1), read with Section 16(1) of the Act and sentenced to simple imprisonment for a period of six months and a fine of ` 1000, in default, imprisonment for a further period of three months. On an appeal by the appellant, the Additional Sessions Judge reduced the sentence of imprisonment to the period of imprisonment already undergone by the appellant before he was granted bail. The order of fine was maintained. In revision by the Municipal Corporation, the Delhi High Court restored the order of sentence passed by the trial Magistrate. The High Court, however, granted a certificate under Article 134(1)(c) of the Constitution and the appellant filed the appeal in the Supreme Court on the strength of that certificate.

As recited in the Supreme Court judgment, the counsel for the appellant did not challenge the order of conviction or the order of sentence. "The only point raised by him was that the appellant should be given the benefit of Section 4 of the Probation of Offenders Act, 1958, under which the sentence of imprisonment awarded to the appellant could be dispensed with and an admonition should instead be given to him". In Para 7 of its judgment, the Supreme Court formulated the question, "whether we ought to apply, in the circumstances of the case and the nature of the evil to prevent which Section 16 of the Prevention of Food Adulteration was enacted, Section 4 of the Probation of Offenders Act and release the appellant from the sentence of simple imprisonment awarded to him with an admonition and a warning only" The Supreme Court (speaking through Shelat, J.) held that the appellant's activity being antisocial, "we do not think that it would be either expedient or in consonance with the object with which the Prevention of Food Adulteration Act was passed to apply Section 4 of the Probation of Offenders Act." The Supreme Court dismissed the appeal.

2.      Ratanlal v. State of Punjab

In this case, Subba Rao, J. speaking for the majority observed that the Probation of Offenders Act, "is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of Criminal Law is more to reform the individual offender that to punish him." In Isherdas v. State of Punjab, (noticed in Jai Narain case) the Supreme Court held that the Probation of Offenders Act was applicable to the offences under the Prevention of Food Adulteration Act, 1954.

3.      In the case of State of Punjab v. Prem Sagar and Ors (2008CriLJ3533) Supreme Court, has commented  that “In our judicial system, we have not been able to develop legal principles as regards sentencing” and  also remarked that “Superior Courts have come across a large number of cases which show anomalies as regards the policy of sentencing. Whereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine.”

XI. Suggestions

A.   Legislative changes:

Changes that could be brought about in the law are enumerated below.  These changes are mostly applicable to Probation of Offenders Act as it is more widely applicable than S.360 of the Code.

1.      Due importance must be given to the reports of the probation officers by making necessary amendments in section 4(2) and section 6(2) of the Act.

2.      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. 

3.      It must be made mandatory for offenders to be placed under supervision of a probation officer, by amendment of the Act, so that it would best serve the philosophy of probation. 

4.      Also, it has been left to the discretion of the probation officer to decide and inform the Court about necessity to vary an order of probation or to discharge probationer, so there must be a complaint mechanism provided that a probationer wants to complain against a decision concerning the implementation made by the implementing authority, or the failure to take such a decision.

5.      The proviso to S.4 of the Act lays down that probation would be granted only after the offender or his surety, have fixed place of abode or regular occupation. A large segment of offenders consists of the poor, the illiterate and the unskilled. It would not be possible for them to fulfill the conditions in all cases, hence the proviso should be amended to not make it mandatory, and leave it at the discretion of the Court. Amendment could be made to the Code of Criminal Procedure to include the provisions for pre-sentence report and supervision.

6.      To make the judiciary more responsive, an amendment could be brought about in The Probation of Offenders Act which would make it mandatory for the judiciary to lay down the grounds as to why the benefit of probation must not be given, on the lines of S.361 of the Code

7.      The provisions under the Probation of Offenders Act and the Code of Criminal Procedure could be amended to be similar to the Juvenile Justice (Care and Protection of Children) Act, where more detailed procedures are laid down, like for the setting up of observation homes, report of the probation officer

B.     Administrative changes:

Changes could be brought about in the way administration deals with probation as suggested below.

1.      There must be proper training to the probation personnel.  Resources are needed to employ trained probation officers, to set up homes for those on probation and also for besides others.

2.     An attitudinal change, must be brought about among the judicial officers towards the importance of the probation system, which in turn make the concept of probation more workable and beneficial.

3.      Probation in India as of today is mostly at the States’ initiative. The success of probation is entirely in the hands of the State Government and the resources it allots to the program. Instead a central policy towards probation must be formulated.

XII.         Conclusion

Probation is a system to make the offender reform himself by realizing that the law takes a lenient view to that who has slipped into criminal act just by chance or accident and not by way of criminal predisposition. The offender lives community life and is saved thereby from the trauma of prison incarceration.  The offender’s family does not remain neglected as he while amending himself may continue to support his family.  The community to which offender belongs in a way helps him to live as good as may other citizen and thereby the offender’s reformation is in the normal way.  Incarceration of the offender brings a financial burden in the public exchequer.  Through the probation system a lot of expenditure is saved which would otherwise have to be done in sending the offender to a correctional institution.

The most vital misconception about probation is that the offender is let off and he goes unpunished for the wrong committed by him. This misconception may not only arise in the mind of the general public but in the minds of the law enforcement agencies besides the offenders themselves.  But this misconception con be easily averted to if the philosophy of probation becomes clear. The probation cannot be claimed as a matter of right; the Court has discretion to release an offender on probation of good conduct only on the satisfaction of the Court that the nature of the offence and the antecedent and character of the offender is such as to extend him the benefit of the probation provisions.  Further checks and balances involved in the probation system such as his supervision and the promises made by the offender for his release on probation to maintain good conduct during the period of probation are not without any effect and further the power to revoke probation on failing to observe the conditions are very important.  The offender has to maintain a peaceable and orderly life to enjoy the probation benefits.  

Under the Penal Code, generally, the Judges have been given discretion to impose the punishment within the prescribed limits.  In few sections, the minimum punishment and the fixed punishments have been prescribed.  The main problem is as to what shall be the right measure of punishment in a case. For the court, it becomes necessary to bear in mind the proportion between an offence and the punishment for it.  There cannot be laid down any hard and fast rule but the courts should observe a desirable proportion between the gravity of the offence and the punishment.

The very fact that the accused in number of cases have chosen to seek the benefit of probation only, while preferring in their appeals before High Courts or Supreme Court without asking the benefit of probation in the sub-ordinate Courts, clearly shows the either advocate community are not familiar / well versed with the Law of probation in vogue or presiding officers are deciding the cases so casually / mechanically without even making a mention  in the judgment as to why the benefit of probation is given or otherwise.

Against this background, at the recently held  judicial seminar at NJA, discussions on judicial  approaches towards sentencing so as to identify discrepancies and develop a common approach/tentative draft legal principles regarding sentencing as called for by the Supreme Court, took place. Approaches to sentencing under various statutes were discussed, so also theories of punishment. Therefore, awarding just sentencing is the ultimate solution to resolve this problem and the policy makers should come out with clear cut guidelines having regard to the nature and circumstance of the case, and the character and antecedents of the offender.

         [Published in ALT (Criminal)/Monthly

March - 2010, PART-3, April, 2010/ PART-4]

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Note: The Author is a member of A P State Higher Judiciary. The views expressed in this article are purely personal.