Professional Documents
Culture Documents
IN INDIA
D.C. Pande* and V. Bagga**
Introduction
THREE PRELIMINARIES are in order. First, the critical remarks to be
found in the following discussion on the probation system, as operating in
the Indian legal scene, are not to be misunderstood as our taking a position
opposed to the use of a progressive penal theory of probation. Next,
probation is a form of sentencing action in the administration of criminal
justice which has to be applied through the processes of criminal law.
Accordingly, probation cannot be viewed in isolation to confer benefits
solely on humanitarian ground without taking cognizance of the interests
of society which the criminal law and justice seek to serve. Finally,
probation may assume the form of suspension of sentence on either of the
probabilities, viz, (a) that the non-enforcement of traditional penal
sanction, particularly, of short term imprisonment may probably result in
correcting the offender to rehabilitate himself in society, or (b) the
probation period may be an interlude for enforcement of traditional
sanction if probable expectation of good conduct is not forthcoming from
the offender. In the former case, the judicial power to punish a person for
breach of law is accomplished with the securing of good behaviour from
the offender, and in the latter case, it is accomplished only if the judicial
power substitutes the ineffective probation result with penalty as pres
cribed under the law. In no case the judicial power can absolve itself from
the duty to punish a person who has been found guilty and is convicted.
Legally speaking probation is a newer mode of sentencing action which
extends the area of judicial discretion in the matter of awarding punishment.
I. Awareness of reform theory in penology
The decision to dispose of the convicted offenders ought to rest on some
conception of purpose. The sentencers vary in objectives and approaches.1
Till lately, the modes of disposal did not much concern the judicial thinking.2 It
had rather been an easy task to pronounce sentence on a person found guilty
than to determine the guilt or innocence of the accused. The varying nature
of penalty did not exist. Even where the options did exist, these were very
limited. No special skill was required to be called in action to determine
one year. By the amending Act of 1923 the legislature sought to extend
the scope of law on probation to make it extensively applicable to a
wider class of persons for larger number of offences, together with
extending the period of release on probation from one to three years. 5
The Select Committee on the amending Bill had stated :
11. Several voluntary agencies variously designated as the Prisoners Aid Society, the
Discharged Prisoners Aid Society, the Released Prisoners Aid Society, etc., were functioning
since long at the state and district levels. Some of these societies were later converted into
crime prevention societies. See generally, Appendix III Working Papers of National
Correctional Conference on Probation and Allied Measures, 1971, organised by the Central
Bureau of Correctional Services, Department of Social Welfare, Government of India.
The papers and proceedings of this conference will hereafter be referred to as the Proceed"
ings, National Corretional Conference (1971).
12. Hood and Sparkes, Key Issues in Criminology 215 (1958).
13. U.N. Report, The Young Adult Offenders 108 ; also Report of Second
United Nations Congress on the Prevention of Crime and the Treatment of Offenders^
London, recommendation No. 4 at p. 63 (1960).
A pilot survey on the impact of institutional care of offenders in the State of
Tamil Nadu, sponsored by the Central Bureau of Correctional Services has .revealed that
short-term sentences, especially on the youth, served no purpose except to cause them
humiliation. See The Hindu, 23-4-1972, p. 7, col. 1-2.
a career of crime.14
In India no separate arrangement worth the name exists in prisons to
segregate the short-termed young offenders from the long-termed ones.15
The rehabilitative services being absent, a released prisoner finds it diffi
cult to readjust himself in the community. His family life is disrupted,
children are neglected, the employment opportunities are lessened due to
the stigma attached to prison life. The trust of friends and relatives is
lost because of his being branded as a criminal. If the desired result of
reforming the offender can be achieved by individualised treatment, then
the necessity of incarceration of the offender does not arise.16 Except that
by incarceration the offender is taken out of society, and resentment
generated by commission of the offence is propitiated, no other useful
purpose seems to be served.
Society is also not a beneficiary in this respect. The burden of
his family may fall on its resources. However, there are a large number of
criminals for whom incarceration may be the only remedy. Prison treatment
should be given only to those offenders who require it.17. If the criminal-
patient can be cured by an outdoor treatment with the assistance and supervi
sion of probation officers, it is desirable to keep him outside the prison rather
than keep him confined to the society of prisoners. It saves the young
offender from the contaminating effects of prison life and also from the
effect of insular prejudices of hardened criminals against the society, law
and order. Hence, any recourse to prison sentence should be the ultimate
weapon in the armoury of sentencing.
The grant of probation depends on the exercise of judicial discretion
subject to qualifications laid down by the statute. It is neither a "let off'*
nor a leniency. It is subject to certain disciplinary restrictions which may
require the offender to abide by the rules and regulations delineated in the
probation order, or may require him to refrain from certain undesirable
activities. These implied restrictions imposed by the court on the freedom of
14. It has been stated:
Short term sentences are doubly harmful; first, because no useful avoca
tion can be taught to the convicts confined for such a short period, and,
secondly, becase the occasional get an opportunity of mixing with the
habituals and in the process lose the dread for jail which is one of the
best deterrents to crime.
Bhattacharya, Prisons 40 (1958).
15. V. Bhushan, supra note 7 at 98.
16. For the advantages of probation, see Henry P. Chandler, Latter-Day Proce
dures in the Sentencing and Treatment of Offenders in The Federal Courts, 16 Federal
Probation, No. 1, pp. 3, 8 (1952). The economics of probation as against imprisonment
has been less costly. It is estimated to be one-tenth or less than that of prison expense.
See D.R. Taft and R.W. England, Criminology 376 (1964).
17. It has been observed:
We cannot do away with prisons. They will always be necessary for
those whose minds are warped and hopes are lost, who can never return to
society for serviceable citizenship.
Philip Lutz, Probation and Rehabilitation, 2£ J.C.C. & P.S. 917 (1934-3$).
the probationer, cause irritation and resentment to the offender. The fear
of being reported to the court by the probation officer, in case he fails to
abide by the rules and regulations of probation order, hangs on the head
of the probationer like the sword of Damocles. It enables the probationer
to discover the ability and the way to go straight. This approach is in
concordance with the conclusion that "crime does not pay" and it is
harmoniously set in with :
The fact that the very price of being "let off" is complete sub
mission to the law for the future is a vindication of justice and
right far more impressive than crude retribution.18
Probation is also not a pardon.19 The probationer is fully aware
of the consequences of misuse offlexiblefacilities granted to him by the
court. Probation gives an opportunity to the offender to reshape his life
in familiar surroundings. It encourages him to re-think over his past
follies and facilitates his way to regulate his future life in the community,
which otherwise would have been uncertain. The offender is made to
shoulder his responsibilities instead of being dependent on the state and
leaving his family uncared for. The cumulative efforts of the probation
officer, the court and the community give him insight and courage to meet
his personal difficulties. Probation is helpful in accomplishing the utilitarian
object of protecting society by helping the offender to good citizenship.
18. Walter Raeburn, Probation was Made for Man, 22 Federal Probation, No. 4,
p. 16 (1958).
19. Chapter XXJX (ss. 401, 402, 402A) of The Criminal Procedure Code, 1898
deals with the suspensions, remissions and commutations of sentences. Article 72 of the
Constitution of India provides for the power of the President to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases. Similarly art. 161 of the
Constitution gives power to the Governor of a state to grant pardons, etc.
20. H.E. Barnes and N.K. Teeters, New Horizons in Criminology 553 (1960).
21. Blackstone, 4 Commentaries on the Laws of England, ch. 28 (1844).
The use of this plea for clergyable felonies instanced the exercise of
practical discretion in regard to the mitigation of punishment. In the
eighteenth century, the concept and practice was well set up. Foster stated :
that particular case the ends ought, i.e., the protection of society,
may be achieved without the cost of confinement, and inadequate
because the prison sentence may create difficulties and compli
cations whieh will make more, rather than less, doubtful the
reinstatement of that particular individual as a law-abiding
citizen.33
Judge Alexander Holtzoff, stated that:
[I]t should always be kept in mind that the aim of probation is
to protect society against a repetition of the defendant's depre
dations by rehabilitating him and transforming him into a law-
abiding member of the community.34
The requirement of social protection can be met in both ways, viz.,
by making use of the existing penal processes against the wrongdoer, and
by restoring the offender to good citizenship. The former cannot be
completely replaced by the latter which has to be resorted to as a construc
tive mode of administering justice in certain situations and for a certain
class of persons. The latter assumes the form of community treatment in
which are enmeshed, (a) the integration and adjustment of the person ;
(b) the relief of detrimental social pressures for the adjustment of the
individual wrongdoer.35 The method of community treatment seeks to
achieve ultimate re-establishment of the offender in the community but it
involves the discipline of submission by the offender while at liberty to
supervision by a probation officer.36
V. Probation—a prognosis
The Probation of Offenders Act, 1958 recognises the need of experi
menting to deal with young offenders and first offenders in a non-punitive
way by releasing them on probation or letting them off after admonition.
It is doubtful if it is designed to give equal emphasis to the protection of
society.
The Act chiefly focuses attention on offenders below the age of
twenty-one years who are to be subjected mandatorily to probation treat
ment in accordance with the provisions of section 6 of the Probation of
Offenders Act. The court has also absolute discretion to apply the pro
bation law to offenders above the age of twenty-one years as provided in
section 3 and 4 of the Act. In terms of the probation measures as prescribed
under the Act, further classification can be made, viz., (a) persons who are
eligible for probation under section 4 of the Act, and (h) persons who are
eligible for admonition under section 3 of the Act.37
Section 6 of the Probation of Offenders Act mandatorily requires that
the cases of offenders beloW twenty-one years of age be dealt with in such a
manner that they secure release either on probation or after admonition. 38
Should an interruption in conviction through probation or admonition be
nQt possible in a case, the court is required to furnish reasons therefor. The
desirability of imprisoning an offender below the age of twenty-one years
has to be formulated on the satisfaction of the court, which in turn must be
founded on the report of the probation officer together with any other
information available to the court relating to the character as well as
physical and mental condition of the offender.39
It can be understood that the issue of desirability of not letting off an
offender by way of probation or after admonition ought to be influenced by
the report of the probation officer, who while acting through his experience,
observation and objectively attained data (regarding the offender) is in a
position to express himself on the possibility of securing such responses as
may have effective reaction in a particular case.
Thus, the import of the legislative injunction putting restrictions on
the imprisonment of offenders under twenty-one years of age centres round
the agency of a probation officer who is to be entrusted with the responsi
bility of investigating and preparing a pre-sentence report for the court. In
the absence of any such agency, operating extensively and effectively, the
exercise of discretion by the court so as not to allow an offender, (under
37. Persons eligible for admonition are those who are found guilty of:
[H]aving committed an offence punishable under section 379 or section
380 or section 381 or section 404 or section 420 of the Indian Pencal Code
or any offence punishable with imprisonment for not more than two
years, or with fine, or with both, under the Indian Penal Code or any
other law. (S. 3 of the Probation of Offenders Act).
38. S. 6 of the Probation of Offenders Act, 1958 reads:
(1) When any person under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but not with imprison
ment 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 circum
stances of the case including the nature of the offence and the character of
the offender, it would not be desirable to deal with him under section 3 or
section 4, and if the Court passes any sentence of imprisonment on 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 3 or section 4 with an offender referred to in sub-section (1),
the Court shall c ill 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 conditions of the offender.
39. Id. s. 6(2).
40. Ibid.
41. See infra notes 87-105.
47. The requirement of supervision is essential and it has been taken cognisance
of by s. 5 Probation of Offender Ordinance 1960 of Pakistan which provides that a court
has the power to make probation order if it is deemed expedient to do so but it would
require the offender to be under the supervision of a probation officer for a period of not
less than one nor more than three years.
48. The practice of conditional release for suspended sentence has been discar
ded as a measure of probation. In the United States "the Federal probation system was
established to take the place of a former practice of suspending sentence." See 39
Opinion of Attorney General 547 (1936) cited in 18 U.S.C.A., ch. 231, s. 3651, note 23.
be dependent largely on a policy that the executive may adopt on the basis
of its possible repercussions on the law and order, and the set-up that the
executive may have in readiness to meet the challenging effects as a result
of the decision.
However, it may be remarked that the law on probation as contained
in the Probation of Offenders Act is ambiguous. The law-makers do not
seem to have clarity of objective. The Act contains all assorted newer
modes of sentencing actions, which rightly or wrongly are masqueraded as
non-punitive treatment forgetting thereby that these actions, except the
probation with supervision,19 are not meant to be a replacement of judicial
function of imposing punishment.
The use and application of probation needs a clear understanding of
the purpose and policy behind it. It also needs a clear reckoning of the
fact that the newer trends in penology, which have warranted more atten
tion to the person of the wrongdoer, do not call for showering benevolence
and piety on the offender outside the realm of criminal law and justice. It
may be reiterated once again that probation does not contemplate to afford
lenient action to the offender.50 On the contrary, it aims at insuring
protection to society and its law-abiding members through remedial
efforts exercised over the corrigible offenders.
The lacunae with which the provision of probation as well as the Act
itself suffers need consideration for rectification and amendment so that a
shapely probation policy streamlined with modernity and helpful to the
administration of justice can be had. The features and concepts of proba
tion as have been presented by our legislation are not in conformity with
the two trends that have emerged in this area. Nor does it disclose any
rational principle known to, or recognised in the domain of, criminal juris
prudence,51
52. The preamble to the Probation of Offenders Act, 1958 provides a guideline
for the release of offenders on probation and admonition. Besides, ss. 3, 4 and 6 of the
Act lay emphasis on the release of offenders on admonition or probation instead of their
being sentenced to punishment.
53. S. 4 of the Probation of Offenders Act empowers the court to release an
offender "on his entering into bond, with or without sureties".
54. A supervision order is not mandatory according to section 4(3) of the Pro
bation of Offenders Act, which reads:
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.
55. Judah Best and Paul I. Birzon, Conditions of Probation, in supra note 50
411.
appoint any other person as probation officer in place of the person named
in the supervision order.
Reference to other types of probation officers has also been made
under the rules framed by the states under their own probation laws, or
under those rules which have been enacted in the exercise of the power
conferred under section 17 of the Probation of Offenders Act. The office
of the probation officer has been variously designated as ''salaried" and
"honorary". 59 Rule 8(3) of the Tamil Nadu Probation of Offenders Rules,
1962 also provides for the appointment of a "special probation officer"60
while rule 8 of the Punjab Probation of Offenders Act has a provision for
"part time" probation officers.61
The "special probation officer" referred to in the state rules purports
to provide the court with such skilled knowledge and technique as may be
required in the circumstances of the case, and also to render special assis
tance to the court as contemplated under section 13(1) (c) of the Act. In
essence, the rule does not seem to yield the desired effect as pointed out
above. On an analysis of the contents of the rule, one may find that it
does not enable the court to have a choice of a person of exceptional skill
for dealing with an exceptional situation. Under the Tamil Nadu rule, the
eligibility for the appointment of "special probation officer" is much less
than the one prescribed for the appointment of a regular probation
officer.62 However, the Punjab rules ask for some additional attributes
from a special probation officer than those prescribed for the regular ones.
59. See generally, for the appointment of 'salaried and honorary' probation
officers, the Kerala Probation of Offenders Rules, 1960, the Tamil Nadu Probation of
v Offenders Rules, 1962 and the Orissa Probation of Offenders Rules, 1962.
60. R. 12 of the Assam Probation of Offenders Rules, 1962, r. 12 of the A.P. Pro
bation of Offenders Rules, 1963, r. 13 of the Maharashtra Probation of Offenders Rules,
1966, r. 10 of the Orissa Probation of Offenders Rules, 1962, r. 12 of the Rajasthan
Probation of Offenders Rules, 1962, and r. 22 of the U.P. First Offenders Probation Rules,
1930 also deal with the appointinent of 'special' probation officers by the court under
s. 13(c) of the Probation of Offenders Act, 1958.
61. Besides the Punjab Probation of Offenders Rules, provisions regarding part-
time probation officers are to be found under s. 6 of the Assam Probation of Offenders
Rules, 1962, r. 10 of the A.P. Probation of Offenders Rules, r. 11 of the Maharashtra
Probation of Offenders Rules, 1966 and r. 10 of the Rajasthan Probation of Offenders
Rules, 1962.
62 Under r. 8(3) of the Tamil Nadu Probation of Offenders Rules, 1962, the
requisite qualifications for the appointment of an 'honorary' probation officer and a
'special* probation officer are the same. It reads: "No person shall be eligible to be
appointed as an Honorary Probation Officer or as a Special Probation Officer unless—
(0 he has completed 25 years of age and has not completed 50 years of age at the time
of his first appointment ; (//) he is a person of good character and is competent by his
personality, training and education to influence for good, an offender placed under
his supervision; {Hi) he is in a position to devote adequate time to the supervision of
offenders; (iv) he resides in the district or in the vicinity of the probationers ; (v) he is
able to read and write English and Tamil; (W) he is fully conversant with the Act and
the rules ; and (vii) he is willing to attend to supervision work without claiming
conveyance or any other allowances."
63. S. 17 of the Probation of Offenders Act, 1958 empowers the states to make
rules for the appointment, duties and salaries, etc., of the probation officers. Accordingly,
many states in which the Act has been brought into force, have enacted their own
rules.
64. See r. 9 of the Maharashtra Probation of Offenders Rules, 1966,
65. E.g. according to r. S(d) of the Keiala Probation of Offenders Rules, 1960, a
probation officer on probation has to undergo three months' training under the chief
probation superintendent before taking up his duties.
66. John F.S. King, The Probation Service 138(1964).
61. See also r. 8, the Tamil Nadu Probation of Offenders Rules, 1962, r. 8, the
Kerala Probation of Offenders Rules, I960, rr. 9, 10 and 11 of the Maharashtra Probation
of Offenders Rules, 1966.
68. For example r. 6 of the U.P. First Offenders Probation Rules, 1939 lays down
that the appointment of a salaried whole-time probation officer is not to be approved
unless he (/) is not less than 25 and not more than 35 years of age at the time of first appoint
ment, (H) is a person of good character and competent by his personality, training and
education to influence for good a probationer placed under his supervision; (Hi) has
received sound education and possesses sufficient practical experience of social welfare
work; and (iv) is fully conversant with the Act and the rules.
69. See John F.S. King, supra note 66 at 227-230.
70. Id. at 140.
probation officer, who can ably deploy techniques to produce motivation for
change in the probationer. According to an experienced staff supervisor of
probation service the handling techniques include such things to be
doners :70a
1. Accepting and understanding the probationer without condoning
his actions. Warmth, empathy, and a knowledge of personality
development are important here.
2. Helping the probationer to discharge inhibiting emotions by
expressing them in a permissive, non-directive setting.
3. Giving the probationer insight into why he feels the way he does.
4. Suggesting ways to control or re-channel harmful emotional
reactions.
5. Supporting and recognizing his efforts to change,
6. Helping him to define problem areas in his life and the implica
tions of these problems.
7. Broadening his viewpoint through exploring ways to improve his
adjustment to society.
8. Helping him to face reality and to work out acceptable methods
of dealing with reality.
9. Referring him to other appropriate agencies for help with special
problems, for example, to psychiatric clinics for help with
personality disorders, to employers or employment agencies
for suitable work, to Alcoholics Anonymous for a drinking
problem.
10. Helping the probationer to build, with his own unique resources,
a more satisfying life, not by giving him orders, but by enriching
his own plan and relating it to reality.
11. Interpreting the probationer to others with whom he must deal
so that demands on him will not produce harmful stresses.
12. Exploring specific relationship problems and helping him to deal
wisely with them,
13. Building his self-respect and feeling of self-worth.
14. Manipulating environmental factors where they are contributing
to maladjustment.
In addition to the generally stated foregoing duties, the statutory
rules require specific obligations on the part of the probation officers. The
nature of the duties require confidence and secrecy as far as the infor
mation regarding the probationer is concerned. Under the rules framed
by the states, a probation officer is required not to divulge any information
concerning their enquiries or probation work to any person other than the
70a. W.T. McGrath, Crime and Its Treatment in Canada 224-225 (1965).
TABLE I72
1 2 3 4 5 6
Pre-sentence investigation
75. Newmaru^fefrTce Book OM-Erobation, Parole and Pardons 84 (3rd ed. 1968).
76. The Presentence Investigation Report" Administrative Office, United States
Courts, see supra note 50 at 69.
77. R. 32(c) of the Federal Rules of Criminal Procedure (U.S.A.) reads:
(1) The probation service of the court shall make a presentence investigation and
report to the court before the imposition of sentence or the granting of pro
bation unless the court otherwise directs
(2) * The report of the presentence investigation shall contain any prior criminal
record of the defendant and such information about his characteristics, his
financial condition and the circumstances affecting his behavior as may be
helpful in imposing sentence or in granting probation or in the correctional
treatment of the defendant, and such other information as may be required
by the Court.
and also to plan their releases. The report also furnishes the parole board
with relevant information while considering cases for parole. The proba
tion officer can make use of the report in the rehabilitation of the offender
and also during the probation and parole supervision. These reports
also serve as a useful source for systematic researches in the field of
corrections.
The Probation of Offenders Act does not seem to emphasise the
necessity of having a pre-sentence report in all the cases. Under section
4(2) of the Act, while releasing an offender on probation of good conduct,
the court does consider such report, if there be any.78 But, the law does
not compulscrily require the probation officer to obtain information and
collect the same for perusal of the court until and unless directed by the
court itself. However, under section 6(2) of the Act, while sentencing a
person below twenty-one years of age, the court has to call and consider
the report.79 Not much guidance can be had from the state laws and the
rules in this regard.
A probation officer ha»to collect information regarding the offence
committed by the offender at the investigatory stage. He has to inquire
into the antecedents of the probationer without making himself identifiable
distinctively as an official.
In the wake of varied duties, a probation officer has primarily to
concern himself with the preparation of the pre-sentence report. After
making discreet inquiries regarding the offender's character and antecedents,
his social and environmental conditions, his financial and other circums
tances in which the alleged offence was committed and any other fact which
the court has directed him to enquire into, the officer has to put down the
relevant information with full facts into the report.80 Thus, the case includes
an objective statement of the facts along with the probation officer's assess
ment of the case. This enables the court to determine the most suitable
method of dealing with the offender after he is found guilty.
It has been observed that the pre-sentence reports are presented to
court by the probation officer more as a perfunctory practice rather than as
a legislative mandate. The value and significance of the pre-sentence report
gets diluted, if we objectively view the magnitude of the work done by
78. The words used in s. 4(2) are;
Before making any order under sub-section (1), the Court shall take into conside
ration the report, if any, of the probation officer concerned in relation to the
case.
Further, under section 14(1), the probation officer has to inquire into the circum
stances or home surroundings of the accused with a view to assisting the court in deter
mining the most suitable method of dealing with him.
79. See Explanation 2(1) of s. 6 of the Probation of Offenders Act.
80. See also r. 15 of the A.P. Probation of Offenders Rules, 1963, r. 16 of the
Assam Probation of Offenders Rules, 1962, r. 17 of the Bihar Probation of Offenders
Rules, 1959, r. 17 of the Maharashtra Probation of Offenders Rules, 1966, r. 14(1) of the
Orissa Probation of Offenders Rules, 1962, r. 14 of the Punjab Probation of Offender*
Rules, 1962 and r. 16 of the Rajasthan Probation of Offenders Rules, 1962.
probation officers all over the country. This has been indicated below in
Table II.
TABLE II
Pre-sentence investigation (1965-70)
stated intervals, meet him frequently and keep in close touch with
him.
(2) At the first meeting the probation officer shall —
(a) explain to the probationer the conditions of the supervision
order;
(b) advise him as to how he should conduct himself; and
(c) specify the days on which he should report to the officer, the
time and place of reporting being so arranged as to avoid
unnecessary hardship to the probationer and to secure proper
privacy, and inform the probationer that any omission on
his part in so reporting will have to be satisfactorily accoun
ted for.
(3) The probation officer shall visit the probationer periodically in
his home surrounding and, where appropriate, his occupational
environment, in order to see the progress made by the proba
tioner and the difficulties, if any, encountered by him :
Provided that in the case of a young offender attending school or
college, the probation officer shall not visit the probationer in the
institution, but may make discreet enquiries of the teacher or
tutor or head of the institution regarding his attendance, conduct
and progress, without prejudicing the probationer's interest in
any way.
(4) The frequency of the meetings, including visits by the probation
officer, should depend upon the conduct and mode of life of the
probationer and the progress he is making. But the number of
meetings should be, unless the court directs otherwise, not less
than :—
(a) Once in a week, during the first month ;
(/;) Once in a fortnight, during the remaining period of
probation, in the case of probationers below 16 years of
age ; and
(c) Once in a month during the remaining period, in the case of
others.
(5) The probation officer shall endeavour, by example, advise, per
suasion and assistance and, where necessary, by warning, to
ensure that (a) the probationer does not violate the conditions of
the supervision order or commit any further offence and behaves
in conformity with law; and (b) his behaviour, attitude to society,
habits, character and moral improve, so that he may not revert
to crime.
(6) The probation officer shall also take such action as he deems
necessary for better regulation of the conduct and mode of life
of the probationer or for closer supervision over him.
(7) The probation officer shall also advice and help the probationer
in attending hospitals, psychiatric clinics, occupational training
81. See also ss. 5, 6 and 8 of the Criminal Justice Act, 1948.
82. R. 19, the Tamil Nadu Probation of Offenders Rules, 1962.
83. See r. 24. the A.P. Probation of Offenders Rules. 1963.
84. The statement presented by the Government of India before the Fourth
U.N. Congress on Prevention of Crime and Treatment of Offenders (Kyoto, Japan).
"who can say that these are not laudable objects", and stated further :
The law seems adequate. But is it enough to pass a law and say
that probation is a good thing....Unfortunately at present, very
little serious attention is paid to this aspect by the Judiciary and
the Bar. As a matter of fact I was shocked to see that in a
number of cases, which came to the Supreme Court recently,
even the existence of the local Probation of Offenders Act was
not known, or easily ascertainable. No reference to the
relevant Probation Act was made in the court below but the
point was for the first time taken in the grounds for special
leave to appeal to Supreme Court. 85
The assertion that the existing law on probation is adequate is debat
able. But the Chief Justice rightly expressed his shock at the ignorance
with which the Bar and the judiciary suffered in matters concerning the laws
of probation in the country. If the Bar and the judiciary had shown greater
interest, it could have been easily possible to bring to the notice of legislators
that what is being masqueraded as probation is not what the probation
ought to be or lias been recognised to be. The proper application and use
of probation would also make the executhe see that budgetary provisions
are not to be earmarked for prison administration alone, but they need to
be diverted for the probation service too.
Mention may be made at this place of the interest taken by the
Central Advisory Board of Correctional Services and the Central Bureau of
Correctional Services who publicised the concept of probation by observing
the year 1971 as probati ^n year, and successfully influenced the highest level
of policy making to reckon with the march of penological progress in the
administration of justice.86
85. Inauguial add)ess by Chief Justice S.M. Sikri on the Probation Year, VII
Social Defence 7 (197J),
86. Siddharlha Shankar Ray, the then Union Minister for Education and Social
Welfare, has addressed letters to the Hon'ble Chief Justices and chief ministers of all the
states seeking their co-operation in making the Probation Year a success. The letters
addressed to the chief ministers, lay emphasis on the implementation of the recommen
dations of the Central Buicau of Correctional Services and sought the assistance of all the
agencies at state level to subscribe to the success of progressive correctional policy of:
(1) Implementation of Children Act to cover all the districts with necessary
services;
(2) Implementation of Probation of Offenders Act, 1958 with services of proba-
bation officers covering every district, with the objective of covering all the
criminal courts in the next three years;
(3) Appointment of the State Advisory Board on Correctional services to co
ordinate the programme among all the agencies;
(4) Inviting the judiciary at the senior level to initiate new thinking among the
subordinate judiciary about the problems arising out of imprisonment of
young offenders;
(5) Modernising the approach in prisons by introducing progressive policies such
as classification of offenders and the separation of juveniles from adults;
(6) Follow-up of the recommendations, in general, of the All India Seminar on
Correctional Services held in 1969 and the two meetings of the Central
Advisory Board on Correctional Services held in 1970 [VII Social Defence
16-18 (1971)].
Walker has noted the objections raised against the right of the state to
reform prisoners.94 As recently as 1954, C.S. Lewis argued that to be
"cured against one's will...is to be put on a level with those who have not
yet reached the age of reason".95 Such dissensions, therefore, do not
permit to extend unreserved recognition to the doctrine that the state has
a right to reform the offender. The thought remains in a state of flux
which cautions against any haste in importing the doctrine of simple and
pure reform of the offender in the Indian jurisprudence so liberally, that
arrangements set in the theory and practice of criminal judicial administra
tion are disturbed altogether.
In terms of juridical thinking it would not be correct to consider
probation as a reform which the state can administer to an individual as a
matter of authority. The state is well within its powers to impose sanction
against the individual even though the sanction be not coercive but
corrective. It is this concept of probation that is significant in the realm
of criminal judicial administration. The concept of probation has grown
in two different disciplines and at different points of time. Probation,
synonymously understood as reform, has largely grown out of the thinking
in social disciplines. The legal concept of probation had been known in
the annals of history and was brought into the folds of criminal law as an
equitable formula. However, there does not seem to be a continued
development of the legal concept which consequently led to the develop
ment of the present day concept of probation. Whatever legalistic form and
temper is imported in the modern concept is, in fact, an attempt to fit
the non-legal institution of probation, primarily loaded with executive
techniques, with the formalism of legality so as to make it workable within
the legal system. The effect of such an approach sometimes yields
anamolous results. As Paul Tappan points out:
[T]he special danger, one that is particularly acute in dealing
with the delinquent through the executive approach, arises from
its paternalistic character.96
The utter benevolence of parental nature implicit in the working
of probation is capable of showing gross irreverence to the constitutional
and legal rights of the probationer to a degree that they are likely to be
wiped out.97
94. "In 1895 the Chairman of the Prison Commission and his supporters tried to
convince the Gladstone Committee that the State had neither the right nor the obligation
to attempt the prisoner's reformation." Nigel Walker, Crime and Punishment in Britain
134 (1965).
95. Ibid.
96. Paul W. Tappan, Juvenile Delinquency 319 (1949)
97. The working of probation system has the undertone of eroding the right
of the accused to remain silent and his privilege to be represented by counsel in a criminal
proceeding. It is in this context that s. 3(5) of the Criminal Justice Act, 1948 in U.K. is
noteworthy. This provision requires that to the offenders above 14 years of age the order
will be applicable only on expressing willingness to comply with the requirements of
the probation order.
98. Per Dua, J., in Lekh Raj v. State, A.I.R. 1960 Punj. 482 at 483.
99. Supra note 89.
100. Id. at 445.
101. Id. at 447.
Though with a different approach to the problem, Lotika Sarkar and R.V. Kelkar
are also of the view that the majority decision in Rattan LaVs case "may give rise to some
practical difficulties in the working of this benevolent legislation." See Sarkar and Kelkar,
Criminal Law, 1 A,SJ I, 82 (1965)
Act through notification. In this case, the court did not realise that the
absence of notification meant absence of probation service in the district.
It did not also show concern as to how a probation order will be effected
after the order has been passed. The concern seems to be to follow the
legislative injunction without being conscious of the impact that may follow
as a result of implementing the measure only half way.
Recently, three more cases have been decided by the Supreme
Court.102 It is likely that the whipping up of the campaign for probation
and the vistas opened up by the Supreme Court may bring in many more
cases before the courts for pleading for the probation. The courts have,
therefore, to set out a pattern and policy with a view to shaping a definite
concept of probation in the scheme of punishment. It is not conducive to
the interest of the entire administration of criminal law and justice, if the
judicial decisions lay an over-emphasis on the legislative injunction on
probation without taking cognizance of the arrangements that the executive
is to furnish for implementation of the injunction. Besides the above, the
judicial policy must be expressive to indicate as to whether the role of the
court, as an agency of reform, is to be placed supremely or somewhat
lowly.
The recent decisions of the Supreme Court do not spell out much that
may be of help in discerning the trend towards which probation, as pre
scribed by the Act, is moving. So far the judicial attitude has been one of
optimism. This optimism has not led the courts to compute the legislative
purpose with the actualities of the probation administration.
In Abdul Qayum v. State of Bihar™ the appellant had been sentenc
ed to six months' rigorous imprisonment for having picked the pocket of
one Jagdish who later associated himself with the appellant in the trial
court for getting the case compounded. The request was not granted.
The trial court had also asked for the report of the probation officer, who
recommended probation for the appellant. The trial court rejected the
same because the court felt that:
On appeal the High Court did not alter the result of the case. The
petitioner then sought to approach the Supreme Court. The Supreme
Court being under the influence of the ''reforming" legislation allowed the
appeal after having upset the finding of facts as determined by the two
courts below.
Generally, it is not the practice of the Supreme Court to take up the
task of fact-finding on appeal because it is not a third court of fact to
re-weigh the evidence which has impressed the courts below.105 It is only
under extraordinary circumstances that the Supreme Court exercises power
to interfere with the concurrent finding of fact.106 In Abdul Qayum*s case
there was no other extraordinary circumstance except, perhaps, that
punishment of six months' imprisonment awarded to Abdul Qayum, "who
was caught as a stray chance amidst the very rampant incidents of pick
pocketing in that area," was not commensurate with the persuasive
propulsion of "reform" theory of probation of the highest court.
Likewise, in Satyabhan Kishore v. The State of Bihar,107 the Supreme
Court once again endorsed Rattan LaVs decision to make available the
benefit of probation law to two young student offenders for having com
mitted house trespass and caused simple hurt to a superintendent of
university examination, who in discharge of his duties was preventing the
use of unfair means in the examination. The circumstances for invoca
tion of supreme judicial power in the instant case for getting the benefit of
probation to the young offenders were different from those existing in Abdul
Qayutris case,108 In the instant case the appellate criminal jurisdiction of
the Supreme Court did not require the court to go far enough to abide
by the principles laid down by it in the matter of criminal appeal by special
leave. The two courts below had differed with each other in the assess
ment of the guilt and furthermore, the appellant had been granted leave
to appeal to the limited question as to the applicability of the probation
law to conviction and sentence of the offenders who were below the age of
twenty-one years.
The critical evaluation of the foregoing decisions is not meant to
offer a suggestion that probation measure is not meant for prescription to
young offenders for rampant anti-social acts of theft, hurt and the like.
Any inference with regard to the canvassing of retributive or deterrent
theory of punishment in such cases is emphatically denied. On the con
trary it is reiterated that:
105. Pritam Singh v. The State, A.I.R. 1950 S.C. 169; Mulk Raj v. State of U.P..
A.I.R. 1959 S.C. 902.
106. Ram Narain v. State of Punjab, A.I.R. 1955 S.C. 322; Inder Singh v. State of
Pepsu, A.I.R. 1955 S.C. 439; Kunjilal v. State of M.P., (1955) 1 S.C.R. 872.
107. Supra note 91.
108. Supra note 91.
109. D.C. Pande and V. Bagga, Criminal Law, V ASJJL. 476 at 512-13 (1970).