This Article is written by Shruti Kulshreshtha from Symbiosis Law School, Hyderabad. This is an exhaustive article which deals with the Probation of Offenders Act, 1958.

Introduction

The primary objective of the criminal justice system is to reform the criminals rather than punish them and to provide a socialized penal device for supporting this principle of reformation. Section 562 of the Code of Criminal Procedure, 1898 stated that any convict not under the age of 21 years punishable with imprisonment of 7 years or less or, any convict under the age of 21 years or any woman not punishable with life imprisonment or the death penalty, can be released on probation of good conduct. This paved the way for the enactment of the Probation of Offenders Act by the Parliament on 16 May 1958. Eventually, Section 562 of Code of Criminal procedure, 1898 was repealed by Section 19 of the Act.

Meaning and History of Probation

The Black’s Law Dictionary defines Probation as “Allowing a person convicted of some minor offence to go at large, under a suspension of sentence during good behaviour and generally under the supervision or guardianship of a probation officer.” The word ‘Probation’ is derived from a Latin word ‘Probo’ which means “I prove my worth” and ‘Probatio’ which means “Test of approval” to examine whether a person can live in the society without breaking the law. Thus, probation means the act of proving the worth and building a character worthy to be released.

It is observed that the convicts face a hard time tuning into the society after imprisonment and it also has certain undesirable effects on the convict which are onerous to shake off in their lives thereafter. As a result of modification of the criminal justice system, the concept of probation is treated as a socialized penal device which started flourishing in the late nineteenth century. Probation originated from the distinct traditions of the common and civil law. However, the historical development of the concept of probation was highly influenced by the introduction of the juvenile justice system and the concept of ‘positivism’ in criminal jurisprudence. The English and American courts practised a conditional release known as ‘Release on recognizance’ which allowed the convicts to be released on certain conditions as prescribed by the courts and await their trial.

The Children’s Act of 1908 allowed courts to release children on probation upon good conduct. Consequent to the Indian Jails Committee Report, the Government of India prepared a Draft Probation of Offenders bill in 1931 which could not be processed by the provincial governments. Due to the recommendations of the jail committee, the government of India decided to draft comprehensive legislation on probation of offenders. The Bill was passed by the Lok Sabha but not by the Rajya Sabha. Hence, a Joint Committee was formed for this purpose. The Joint Committee handed over its report to the Lok Sabha and the bill was introduced in the Parliament on 25th February 1958 thereby, resulting in the enactment of Probation of Offenders Act, 1958 (Hereinafter referred to as “the Act”, for the sake of brevity).

Thus, probation means discharging a convict, subject to the regularity of conduct and good behaviour by imposing conditions upon his release. The convict is released only upon entering into a bond and under the supervision of the probation officer. Probation is based upon the scientific approach of reformation where it is seen that imprisonment is unnecessary keeping in mind the age, character and nature of the offender. According to the United Nations Department of Social Affairs, release on probation is a treatment device used by the courts for convicts where he lives in the community and manages his own life, subject to the conditions imposed by the courts and under the supervision of a probation officer. Under the Code of Criminal procedure, 1973, release on probation is dealt under Section 360.

The Probation of Offenders Act, 1958

The Probation of Offenders Act, 1958 is based on the individualistic approach to the convicts and dealing with young offenders in an amicable manner. It is believed that young offenders can be stopped from becoming habitual offenders if probation is allowed to them. The Act aims to provide for the release of offenders on probation or upon due admonition and all the matters connected therewith. It contains 19 sections and extends to the whole of India except the State of Jammu and Kashmir. The Act aims to provide a reformative system of reform of offenders and convert them into useful and law-abiding citizens of the country.  

Salient Features

The salient features of the Act are as follows:

• The Probation of Offenders Act, 1958 is enacted with an aim to yield a mechanism where the amateur and first-time offenders are able to reform and are kept away from the negative influence of the jails and hardened criminals. 
• The Act provides for the release of first-time offenders after due admonition for convicts punishable under Section 379, Section 380, Section 381, Section 404 and Section 420 of Code of Criminal Procedure and also to those who are punishable for imprisonment of 2 years or with fine or both.
• The Act authorises the release of offenders on probation based on good conduct, provided the offence alleged to have been committed by the offenders is not punishable with life imprisonment or the death penalty. 
• The Act empowers the Court to give orders for payment of a reasonable sum to the victim for the injury caused to him and the cost of the proceedings by the offender.
• The Act protects those offenders who are below the age of 21 years from the sentence of imprisonment. However, this rule does not apply to those who are offenders punishable with life imprisonment.
• The Act empowers the Courts to set the conditions in the bond for a person released on probation and to extend the period of probation not exceeding 3 years from the original order.
• The Act entrusts the probation officers to supervise the probationers assigned to him and help them in reformation and employment. 

The objective of the Act

The paramount objective of the Act is to prevent young offenders from converting into habitual offenders. Prior to this Act, there were no laws on probation in India or in the States. Hence, this Act provides uniform provisions on the release of offenders on probation in India. There has been a need to develop a reformative structure and a rehabilitation mechanism in the criminal jurisprudence for the offenders and make them self sufficient and responsible citizens of the society. Imprisonment has an adverse impact on the mental situation of the convict which restricts his opportunity to improve. The Act intents to provide the offender with the possibility and scope of improving his behaviour and conduct so as to lead a respectful life thereafter. 

When an amateur offender or a first-time offender is put into jail, the chances of his rehabilitation are reduced massively. The Object of the Act was explained by Justice Horwill in the case of In Re: B. Titus and Others vs Unknown (1941)  where he stated that probation is used to prevent turning young persons in jail and make them familiar with the hardened criminals who can lead them further into this path. It also prevents persons of mature age but who are first-time offenders from the bad influence of others and who can be expected to make good citizens of this nation. Such cases have the opposite effect of imprisonment rather than what it was meant for.  

In the case of Arvind Mohan Sinha vs Mulya Kumar Biswas (1974), the Supreme Court stated that the Act is a reformative measure and its object is to reclaim amateur offenders who can be rehabilitated.  

Important Provisions of the Act

Section 3 – Admonition

Section 3 deals with the power of the courts to release offenders on admonition. The admonition is nothing but reprimand. This Section empowers the courts to release the offenders where the offenders are released without undergoing the penalty prescribed by the Indian Penal Code or any other relevant law. However, an offender is eligible for release under this Section only if the following requisites are observed:

1. The person is guilty under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of Indian Penal Code, or
2. The person is guilty of any offence punishable with imprisonment not exceeding 2 years or with fine, or with both under the Indian Penal Code or any other law and
3. No previous convictions are proved against such persons, and
4. The nature of the offence and the character of the offender is taken into consideration.

If a case abides with the above-mentioned requisites, then if the court deems fit, can avoid sentencing such person with imprisonment or with probation under good conduct by releasing the offender after giving a warning or advice to such person.

In the case of Basikesan vs State of Orissa AIR 1967 Ori 4, a 20-year-old boy was found guilty of an offence under Section 380 of IPC and had no previous conviction against him. The court held that this is a fit case for the application of Section 3 of Probation of Offender Act and he was released after due admonition. In another case, Ahmed vs State of Rajasthan AIR 1967 Raj 190, the court held that this Section cannot be applied when a person indulged in an act which resulted in a major communal tension in the society.

Section 4 – Probation of Good Conduct

Section 4 of the Act is the most important provision. It lays down that an offender can be released on probation of good conduct without the sentence of imprisonment by the court.  The following points are applicable for this provision:

1. This Section is not applicable to any person who is convicted with either life imprisonment or death penalty for the offence committed by him.
2. The Court shall consider the nature of the offence committed by such person as well as the character of the person while considering whether the person is eligible to be released on probation of good conduct.
3. Without sentencing the offender for any punishment, the court may release the offender on probation of good conduct. 
4. This Section empowers the court to give directions to execute a bond, with or without sureties, to appear before the court when called and receive the sentence given to him by the court.
5. This shall be done within such a period which shall not exceed 3 years.
6. The Court shall consider the report of the Probation Officer before making an order for probation. However, such a report is not mandatory.
7. Additionally, the Court can also pass an order of supervision which shall not exceed 1 year. In such a case, the Probation Officer is ordered to supervise the probationer for such a period. The court may also include conditions of the supervision in the order.

This Section requires that the offender or his surety (if any) shall have a fixed place of residence and a fixed occupation at a place where the court giving such an order has jurisdiction. The Court shall explain all the terms and conditions of the probation order and supervision order to the offender and provide him with a copy of the orders the offender(s), sureties and the probation officer.  

The Court did not provide the benefit of Section 4 of the Act in the case of State of Maharashtra vs Natwarlal AIR 1980 SC 593, where the offender smuggled gold. The court stated that this offence affects public revenue and the economy of the nation thereby affecting public interest at large. 

In Phul Singh vs State of Haryana AIR 1980 SC 249, the court clarified that the provision of Section 4 should neither be seen as undue leniency nor should it be applied in undeserving cases. Further, in the case of Ram Prakash vs State of Himachal Pradesh AIR 1973 SC 780, the court held that the provisions of Section 3 and Section 4 are not mandatory because of the presence of the word “may” instead of the word “must”. 

Section 5 – Compensation and Costs

Section 5 states that along with the orders under Section 3 and Section 4, the court can furnish an additional order directing the offender released after due admonition or released on probation of good conduct to pay:

• Compensation, as the courts think, shall be reasonable for any loss or injury caused to the victim due to the offender
• Costs of the proceedings

While calculating the quantum of compensation and the costs to be paid by the offender, it is solely on the discretion of the court as to what is reasonable in the case. This was held in the case of Rajeshwari Prasad vs Ram Babu Gupta AIR 1961 Pat 19.

Section 14 – Duties of Probation Officers

Section 14 deals with the duties of a probation officer. These duties are subject to the restrictions and conditions laid down by the court in specific orders:

1. Inquire with the suitable circumstances and surroundings of the house of the probationer and submit a report to the court;
2. Supervise the probationers placed under him and help them to find employment;
3. Advice and assist the offenders in payment of costs and compensation;
4. Advice and assist the offenders released under Section 4;
5. Perform prescribed duties.

Scope of the Act 

A huge discretionary power has been vested with the courts by the Act to release the convicts after due admonition or on probation of good conduct. The main motive of entrusting the courts with such a power is because each case is different from the other and a generalised provision cannot be made in this respect. It is purely upon the court to determine the nature of the offence, the character of the offender as well as the quantum of compensation or costs to be paid to the victim. Section 17 of the Act gives power to the State Government, upon approval of the Central Government, to make rules for the proper implementation of this Act. All the duties, salary etc for the probation officers shall be decided by the State Governments. 

Conclusion

To conclude, it can be said that this reformative action intended by the legislature can be successful only when the judiciary and the administration work together. The Probation of Offenders Act is ideal for a country like India, where prison overcrowding is one of the key contributing factors of bad prison facilities. Every person wants an opportunity to improve by becoming better and this Act gives exactly that. 

References

1. The Code of Criminal Procedure, 1973
2. The Code of Criminal Procedure, 1898
3. The Probation of Offenders Act, 1958
4. Jon. F. Klaus, “Handbook on Probation Services”, United Nations Interregional Crime and Justice Research Institute, Publication No. 60, London, March 1998.
5. Amrita Malik, “Probation of the Offenders Act”, Academike, August 2014.
   

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