School Of Law & Governance

PROJECT TOPIC : PROBATION

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B.A LL.B
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“Hate the sin not the sinner”. - Mohandas Karamchand Gandhi

Introduction

The earlier penological approach held imprisonment, that is, custodial measures to be
the only way to curb crime. But the modern penological approach has ushered in new
forms of sentencing whereby the needs of the community are balanced with the best
interests of the accused: compensation, release on admonition, probation, imposition
of fines, community service are few such techniques used.
The term Probation is derived from the Latin word probare, which means to test or to
prove. It is a treatment device, developed as a non-custodial alternative which is used
by the magistracy where guilt is established but it is considered that imposing of a
prison sentence would do no good. Imprisonment decreases his capacity to readjust to
the normal society after the release and association with professional delinquents
often has undesired effects.
According to the United Nations, Department of Social Affairs, The release of the
offenders on probation is a treatment device prescribed by the court for the persons
convicted of offences against the law, during which the probationer lives in the
community and regulates his own life under conditions imposed by the court of other
constituted authority, and is subject to the supervision by a probation officer. The
suspension of sentence under probation serves the dual purpose of deterrence and
reformation. It provides necessary help and guidance to the probationer in his
rehabilitation and at the same time the threat of being subjected to unexhausted
sentence acts as a sufficient deterrent to keep him away from criminality. The United
Nation recommends the adoption and extension of the probation system by all the
countries as a major instrument of policy in the field of prevention of crime and the
treatment of the offenders.

Meaning of probation
The term Probation is derived from the Latin word probare, which means to test or to
prove. It is a treatment device, developed as a non-custodial alternative that is used by
the magistracy where guilt is established but it is considered that imposing of a prison

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sentence would do no good. Imprisonment decreases the convict’s capacity to readjust
to the normal society after the release and association with professional delinquents
often has undesired effects.

Historical perspective of probation law in India

In India, probation received statutory recognition for the first time in 1898 through
Section 562 of the Code of Criminal Procedure, 1898. Under the provision of this
section, the first offender convicted of theft, dishonest misappropriation or any other
offence under the Indian Penal Code punishable with not more than two years
imprisonment could be released on probation of good conduct at the discretion of the
Court. Later, the Children Act, 1908, also empowered the court to release certain
offenders on probation of good conduct.

Similar provisions existed in the Children Act, 1960 which were repealed consequent
to passing of the Juvenile Justice Act, 1986. This Act was further substituted by the
Juvenile Justice (Care & Protection of Children) Act, 2000.

The Central Government appointed a committee in 1916 to consider the provision of

the Criminal Procedure Code. Particularly, it suggested revision of Section 562 and
extension of its provisions to other cases also.

The scope of probation law was extended further by the legislation in 1923.
Consequent to Indian Jail Reforms Committee’s Report (1919-20), the first offenders
were to be treated more liberally and could even be released unconditionally after
admonition. The first offenders were classified under two categories, namely:—

(i) Male adult offenders over twenty-one years of age; and

(ii) Young male adult offenders under twenty-one years of age and female offenders
of any age.

The release of offenders on probation could be extended not only to offences under
the Indian Penal Code but also to offences falling under special enactments. To cope
up with the extended probation, a number of Remand Homes, Rescue Homes,

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Certified Schools and Industrial Schools were established in Bombay, Madras and
Calcutta.

The Government of India in 1931, prepared a draft of Probation of Offenders Bill and
circulated it to the then Provincial Governments for their views. However, the Bill
could not be proceeded further due to pre-occupation of the Provincial Governments.
Later, the Government of India in 1934, informed the local governments that there
were no prospects of a central legislation being enacted on probation and they were
free to enact suitable laws on the lines of the draft Bill.

Consequently some of the Provinces enacted probation laws which assumed

considerable importance because they introduced for the first time provisions
regarding pre-sentence enquiry report of probation officer, supervision by paid and
voluntary probation officer and compensation for injury caused to a person by the
offender’s delinquent act. The probation laws enacted by Provinces, however, lacked
uniformity.

After the Indian independence, certain concrete steps were initiated to popularise
probation as a correctional measure of treatment of offenders. A Probation
Conference was held in Bombay in 1952 on the advice of Dr. Walter Reckless, the
United Nations Technical Expert on Correctional Services.

This Conference was a milestone in the progress of probation law in India. The noted
American criminologist, Dr. Walter Reckless addressed the Conference as a U.N.
technical expert and gave valuable suggestions on Prison Administration in India.
Consequently, All India Jail Manual Committee was formed to review the working of
Indian jails and suggest measures for reform in the system.

The Committee in its Report of 1957 pointed out that there was no liaison between the
government, the probation personnel, the police, and the prison administrators in
implementation of the probation law. The Committee also highlighted the need for a
central law on probation with greater emphasis on release of offenders on probation of
good conduct so that they are reclaimed as self-reliant members of society without
being subjected to deleterious effects of prison life.

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Law of probation in India

Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision to
have dealt with probation. After amendment in 1974 it stands as S.360 of The Code of
Criminal Procedure, 1974. S.361 makes it mandatory for the judge to declare the
reasons for not awarding the benefit of probation.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for
probation officers to be appointed who would be responsible to give a pre-sentence
report to the magistrate and also supervise the accused during the period of his
probation. Both the Act and S.360 of the Code exclude the application of the Code
where the Act is applied. The Code also gives way to state legislation wherever they
have been enacted.

360. Order to release on probation of good conduct or after admonition.-

(1) When any person not under twenty-one years of age is convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or less, or
when any person under twenty-one years of age or any woman is convicted of an
offence not punishable with death or imprisonment for life, and no previous
conviction is proved against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents of the offender, and to
the circumstances in which the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be released on his entering
into a bond, with or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may direct and in the
meantime to keep the peace and be of good behavior:

Provided that where any first offender is convicted by a Magistrate of the second class
not specially empowered by the High Court, and the Magistrate is of opinion that the
powers conferred by this section should be exercised, he shall record his opinion to
that effect, and submit the proceedings to a Magistrate of the first class, forwarding
the accused to, or taking bail for his appearance before, such Magistrate, who shall
dispose of the case in the manner provided by sub-section (2).

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(2) Where proceedings are submitted to a Magistrate of the first class as provided by
sub-section (1), such Magistrate may thereupon pass such sentence or make such
order as he might have passed or made if the case had originally been heard by him,
and, if he thinks further inquiry or additional evidence on any point to be necessary,
he may make such inquiry or take such evidence himself or direct such inquiry or
evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under the Indian Penal Code punishable
with not more than two years’ imprisonment or any offence punishable with fine only
and no previous conviction is proved against him, the Court before which he is so
convicted may, if it thinks fit, having regard to the age, character, antecedents or
physical or mental condition of the offender and to the trivial nature of the offence or
any extenuating circumstances under which the offence was committed, instead of
sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High
Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the
High Court or Court of Session may, on appeal when there is a right of appeal to such
Court, or when exercising its powers of revision, set aside such order, and in lieu
thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under the sub-section
inflict a greater punishment than might have been inflicted by the Court by which the
offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the
case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall
be satisfied that an offender or his surety (if any) has a fixed place of abode or regular
occupation in the place for which the Court acts or in which the offender is likely to
live during the period named for the observance of the conditions.

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(8) If the Court which convicted the offender, or a Court which could have dealt with
the offender in respect of his original offence, is satisfied that the offender has failed
to observe any of the conditions of his recognizance, it may issue a warrant for his
apprehensions.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith
before the Court issuing the warrant, and such Court may either remand him in
custody until the case is heard or admit him to bail with a sufficient surety
conditioned on his appearing for sentence and such Court may, after hearing the case,
pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders
Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for
the time being in force for the treatment, training or rehabilitation of youthful
offenders.

Object

Section 360 is intended to be used to prevent young persons from being committed to
jail, where they may associate with hardened criminals, who may lead them further
along the path of crime, and to help even men of more mature years who for the first
time may have committed crimes through ignorance, or inadvertence or the bad
influence of others and who, but for such lapses, might be expected to be good
citizens. It is not intended that this section should be applied to experienced men of
the world who deliberately flout the law and commit offences.

In Jugal Kishore Prasad v. State of Bihar1, the Supreme Court explained the rationale
of the provision:

“The object of the provision is to prevent the conversion of youthful offenders into
obdurate criminals as a result of their association with hardened criminals of mature
age in case the youthful offenders are sentenced to undergo imprisonment in jail.”

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(1972) 2 SCC 633

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Release on probation of good conduct

Section 360(1)

Having regard to the age, character or antecedents of the offender, and the
circumstances in which the offence was committed, if the court convicting the
accused person considers it expedient to release the offender on probation of good
conduct (instead of sentencing him at once to any punishment), it may direct the
offender to be released on his entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such period (not exceeding three years)
as the court may fix and in the meantime to keep the peace and be of good behaviour.
Such a release is permissible only if the following conditions are satisfied:

 There is no previous conviction proved against the offender.

 When the person convicted is a woman of any age, or any male person under
21 years of age, and the offence of which he or she is convicted is not
punishable with death or imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of
which he is convicted is punishable with fine only or imprisonment for a term
of seven years or less.

First offenders

The expression first offender refers to an offender who has no previous conviction to
his credit, apart from the offence in question. It is also necessary that the offence
committed by him for the first time must be one of those mentioned in section 360,
CrPC. First offenders under this section are entitled to indulgence on the ground of
their age, character or antecedents and to the circumstances in which the offence is
committed. The object of this section is to avoid sending the first time offender to
prison for an offence, which is not of a serious character and thereby running the risk
of turning him into a regular criminal.

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First offenders according to sub-section (1) fall under two classes:

 When the person convicted is a woman of any age, or any male person under
21 years of age, and the offence of which he or she is convicted is not
punishable with death or imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of
which he is convicted is punishable with fine only or imprisonment for a term
of seven years or less.

Offenders with any precious conviction or those found guilty of any offence
punishable with death or imprisonment for life are totally beyond the purview of the
section. From this section it is clear that it tries to reform the criminals by treating
them leniently only in those cases where there is no serious danger or threat to the
protection of the society.

For application of this section it is necessary that the offender must not have been
convicted previously so as to bring him in the category of the first offender. On
fulfilment of the above conditions, if the court by which the offender is convicted
considers it expedient that the offender should be released on probation of good
conduct, it may, instead of sentencing him at once to any punishment, order him to be
released on bond with or without sureties. The offender may be required to furnish a
bond to appear and receive sentence whenever called upon during such period not
exceeding three years as the court may direct. The offender shall be directed by the
court to keep the peace and be of good behaviour if he is released on probation under
this section. In Md. Syad Ali v. State of Guj.2, when the accused was a first offender
and his age was below 21 years but the court had not applied its mind to the
application of section 360, it was held that it was a fit case for granting probation.

No offender can as a matter of right, on fulfilling the conditions laid down in this
section, claim to be released on probation of good conduct. It is a discretionary power
given under this section to the court.

2 1989 Cr.L.J. 2063

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Release after admonition

Section 360(3)

Having regard to the age, character, antecedents or physical or mental condition of the
offender and to the trivial nature of the offence or any extenuating circumstances
under which the offence was committed, the court may, after convicting the accused
person, release him after due admonition. Such a release is permissible only if the
following conditions are satisfied:

 There is no previous conviction proved against the accused person.

 The offence of which he has been accused of is either theft, theft in a building
or dishonest misappropriation or is punishable under the IPC with not more
than 2 years’ imprisonment or is one punishable with fine only.

Subsection (3) is applicable only in respect of the specified offences and such other
offences under the IPC that are not punishable with more than two years’
imprisonment. Under this sub-section the court has got the discretion to release the
offender after admonition instead of sentencing him to any punishment.

Section 360(4)

An order under s. 360 directing release of the convicted offender on probation of good
conduct or release after due admonition may be made by an appellate court or by the
High Court or court of session when exercising its powers of revision.

Section 360(5)

The High Court or the Court of Session may, on appeal or when exercising its powers
of revision, set aside such order and in lieu thereof pass sentence on such offender
according to law. But the High Court shall not inflict a greater punishment than might
have been inflicted by the court by which the offender was convicted.

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Breach of recognisances

Section 360(8) & Section 360(9)

In case the offender fails to observe the conditions of his recognizance, the court
which convicted the offender or any court which could have dealt with him in respect
of his original offence may issue a warrant for his apprehension and when brought
before it may either remand him in custody until the case is heard or admit him to bail
with a sufficient surety and after hearing the case, pass sentence.

Probation of Offenders Act exclusive of each other

Section 360 itself makes it quite clear that it shall not affect the provisions of the
Probation of Offenders Act. According to Section 18 of POA read with section 8(1),
General Clauses Act, 1897, Section 360 of the Code would cease to apply to the
States or parts thereof in which the POA is brought into force. However, the offender
can be still released after admonition or on probation of good conduct under sections
3 and 4 POA which is wider in its scope than the provisions of section 360. In that
case also, the court will have to use discretion on the same lines as in cases under
section 360.

Chhanni v. State of Uttar Pradesh3, is a case relating to applicability of section 360,

Cr.P.C. In the instant case it was held that provisions of the two statutes regarding
probation have significant differences and they cannot coexist. Hence, provisions of
section 360 are wholly inapplicable in areas where Probation of Offenders Act is
made applicable. The difference between the two statutes is that section 360 of the
Code relates only to persons not under 21 years of age convicted for an offence
punishable with fine only or with imprisonment for a term of 7 years or less, to any
person under 21 years of age or any woman convicted of an offence not punishable
with sentence of death or imprisonment for life. The scope of section 4 of the
probation of offenders act is much wider. It applies to any person found guilty of
having committed an offence not punishable with death or imprisonment for life.
Therefore the court held that the provisions in the two statutes with significant
differences could not be intended to co-exist at the same time in the same area.

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2006 Cr.L.J. 4068 (SC)

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The order under this section follows a conviction and can be substituted for a
sentence.

361. Special reasons to be recorded in certain cases. Where in any case the Court
could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of
Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), 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 its judgment the special reasons for
not having done so.

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CONCLUSION

The criminal justice system in India is slowly advancing from being retributive to
reformative. It has been realised that punishing first time offenders often does no
good at all as they may come into contact with hardcore criminal, and become like
them. This is where concept of probation comes into picture. It is a kind of non
custodial sentences, where the offender is released so that he can associate with the
people in the society and lead a common life.
Probation in criminal law is a period of supervision over an offender, ordered by the
court instead of serving time in the prison.

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