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Q. Discuss the aims and objectives of Probation of Offenders Act, 1958. State the powers of the court regarding release of certain offenders on probation of good behavior under this act. Explain the offenses in which a court can and cannot grant the benefit of probation. Explain the procedure followed against the offender who breaches the probation conditions. Section 360 of CrPC and Section 4 of Probation of  Offenders Act both empower the court to release a convicted offender on probation of  good behavior. Which section has overriding effect? Mahatma Gandhi once said , "Hate "Hate the crime crime not the criminal". This This m eans that we need to eliminate crime and el im inating criminals is not the way to do it. While it is true that punishm ent gives gives a sens e of satisfaction to the the victims victims and to the society in general, it has been observed that in m ost of the cases punis hm ent, special ly im prisonm ent, does not actually actually reform reform the criminal. In mos t cases, once a person com es out of a prison, he gets back to his old ways of being in conflict conflict with with the law. This is true even even m ore with young young crimi nals, whos e m inds are not fully mature. They get influenced in the wrong way because of their interaction interaction with hardened hardened crimina ls in j ails . One way to to counter this problem is to provide provide opportunities and guidance to young young and first time offenders ins tead of  comm itt itting ing them to jails . The The idea behind s uch treatment treatment is that, normal normal ly ly,, human beings do not resort to to crime unles s they are forced forced due exceptional exceptional circums tances. If If we want to reduce crime, crime, we s hould m ake sure that chance criminals are given given an opportunity to get reformed reformed ins tead of turning turning into hardened crim inals . This is the aim behind Probation of Offender' Offender's s Act, 1958. It allows the court to take into account the nature of the crime, the age of the offender, and the circumstances of the crime, and ins tead of com com mitting the offender offender to jail, release him under supe rv rvisio isio n and guidance of a probation officer. officer. This This ensu res that the the offender is integrat integrated ed back into the s ociety ociety.. The act is ba sed on the reformatory approach, which is adopted in m any countries countries of the world. For exampl exampl e, in USA, USA, almos t 60% of the offenders offenders are releas ed on probation. The object of probation has been laid down i n the judgme nt of Justice Ho Horw rwill ill in  in In re B. Titus Titus  - S. 562 is intended to be used to prevent prevent young young pers ons from being com mi tt tted ed to jail, where they may ass ociate with hardened criminals , who may lead them furt further her along the path of crime, and to help even men of m ature years years who for the first time m ay hav have e com mi tt tted ed crimes through ignorance or inadvertence inadvertence or the bad influence of others and who, but for such l apses , might be ex expected pected to to ma ke good citizens. citizens. In s uch cases , a term of impris onme nt may have have the very opposi te effect effect to to that for which it was intended. Such Such persons would be s uff ufficiently iciently punis hed by the the s hame of having having com mitted a crime an d by the mental agony and dis grace that a trial trial in a crimi nal court would involve. involve. It mus t, however however,, be kept in m ind that reformation does not always work. Some crim es are s o abhorrent and som e criminals are so unrepentant that that it is best to punish them s o that the price of comm itt itting ing the crime keeps them from comm itt itting ing it again. For som e of them, there is no hope for reform, reform, and it is best to protect the the s ociety from them by locking them away for life.

Main Fe atures of the Act / Powers Powers of the court regarding release of certain offenders Depending on the circums circums tances of the case, a court may release the pers on in two ways - release a ft fter er admo nishi ng the person, which is prov provided ided in Section 3, 3 , and releas e on probation of good conduct, which is prov provided ided in Section 4. 4 . Both are explained ex plained belo w. Release After Admonishing  Adm onis hing m eans to warn or reprim and. In this  Adm this m ode of releas e, the court s colds the person, pers on, and in a way, tries to appeal appea l to the the good conscious o f the the person and releas es him . Section 3 says 3  says thus: www.hanumant.com/Cr PC- U ni t1314- Pr obationOfOffender sAct.html

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When any person is found guilty of having com mitted an offence punishabl e under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punis hable with im prisonm ent for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved agains t him and the court by which the perso n is found guilty is of opinion that, having regard to the circums tances of the case including the n ature of the offence and the character of the offender, it is expedient s o to do, then, notwithstanding anything contained in any other law for the time be ing in force, the court ma y, instead of s entencing him to any punis hmen t or  releasi ng him on probation of good conduct under section 4, release hi m after due admonition. The conditions required to be releas ed under this s ection are 1. The offence m ust be pu nishab le with im prisonm ent for less than 2 yrs or w ith only fine or with both. Or if the offence is punis hable under any of the Sections 379, 380, 381, 404, and 420. 2. The offender does not have any prior convictions. If the above conditions a re sa tisfied, then the court mus t take into consideration the nature of the crime and the antecedents and character of the offender and if it thinks s uitable, it can release the offender after warning. Release on Probation  As per Section 4, if any person is found guilty of having com mitted an offence not punishable with death or im prisonm ent for  life and the court by which the person is found guilty is of opinion that, having regard to the circums tances of the case including the n ature of the offence and the character of the offender, it is expedient to releas e him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of  sentencing him at once to any punishm ent, direct that he be releas ed on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during s uch period, not exceeding three years, as the court may direct and in the meantim e to keep the peace and be of good behavior. The section further requires that the offender or his s urety has a fixed place of res idence or regular occupation in a place where the court exercises jurisdi ction.  Als o, before making any such order, the court sh all take into cons ideration the report, if any, of the probation officer  concerned in relation to the case. However, it is not necessary that the court has to act on probation officers report. It can als o gather information from other source and on its own analysis . The court may also require the offender to rem ain under the s upervisi on of a probation officer during certain period, if it thinks that it is in the interests of the offender and of the public. It can also im pose appropriate conditions which m ight be required for such su pervisi on. In case the court does specify such conditional releas e, it mus t require the offender has to enter into a bond, with or without sureties, enum erating the conditions. The conditions ma y relate to place of residence, abstention from intoxicants, or any other matter as the court thinks ap propriate to ensure that the crime is not repeated.  As per Section 5, the Court directing the releas e of an offender under s ection 3 or s ection 4, may, if it thinks fit, make at the sam e time a further order directing him to pay(a) such compens ation as the court thinks reasonabl e for loss or inju ry caused to any person by the comm iss ion of the offence ; and (b) such costs of the proceedings as the court thinks reas onable.

Offenses in which benefit of probation can and cannot be granted Section 4, as described above, gives a general direction to the court for deciding when and when not to gi ve the benefit of  probation. The words , "if the court is of the opinion" bas ically give dis cretionary power to the court in this res pect. Section 6, however, tries to impres s upon the court to lean in favor of giving benefit in cas es of young and im mature adults. When any person under twenty-one years of age is found guilty of having com mi tted an offence punish able with im prisonm ent (but not with impris onmen t for life), the court by which the person is found guilty shal l not sentence him to im prisonm ent unless it is satis fied 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 w ith him u nder section 3 or s ection 4, and if the court pass es a ny sentence of  im prisonm ent on the offender, it shall record its reas ons for doing so. For the purpose of satisfying itself whether it would not be des irable to deal unde r section 3 or s ection 4, the court shall call for a report from the probation officer and consi der the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. Thus, even though no m athematical rule is given, the general intention of the legis lature is to give the benefit of probation as much as poss ible. In Jugal Kishore Prasad vs State of Bihar 1972 , the Supreme Court observed that the object of the Probation of Offenders Act, "is in accordance with the present trend in the field of penology, according to which efforts should be m ade to bring about correction and reforma tion of the individual offenders and not to res ort to retributive jus tice. Modern criminal jurisprudence recognizes that no one is a b orn criminal an d that a good many crim es a re the product of sociowww.hanumant.com/CrPC-Unit1314-ProbationOfOffendersAct.html

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economic milieu." In absence of a precise formul a to determine w hen and when not the benefit of probation can be given, we have to look at SC court judgments to understand what kind of offenses are eligible for this benefit. SC has accepted the applicabili ty of  probation for many kinds of offences. For examp le, in Isherdas v. State of Punjab, the Supreme C ourt held that the Probation of Offenders Act was applicable to the offenses under the Prevention of Food Adulteration Act, 1954. In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the appellant was b elow 21 years of age. The appellant was a t one time a well known child film actor and won several awards for acting in film s. Subsequ ently he fell in bad company and took to evil w ays. SC held that even if the point relating to Section 6 is not raised before the High Co urt, the court was bound to take notice of the provisions of the section and give its benefit to the applicant. It further held that Section 6 lays down an injunction not to im pose a s entence of im prisonm ent on a reason who is under 21 years of' age and if found guilty of having com mitted an offence punis hable with im prisonm ent other the that for if unless it is s atisfied that it would not be des irable to deal with him under Section 3 or Section 4. This inhibition on the power of the court to impos e a sentence of im prisonm ent applies not only at the state of trial but als o at the stage of High Court or any other court when the case com es before it in appeal or revisio n. However, in Uttam Singh vs Delhi Administration, 1971 , the appellant was of 36 yrs of age and w as caught with 3 s ets of  playing cards an d obs cene photographs. SC refused to allow him the benefit of release on probation having regards to his age and nature of crime. There have been cas es where the court has let of even rapists on probation and there have been cas es w here even m inor  offenses have not been given the benefit of probation. It can be s aid that this benefit is given on cas e to case basis after  looking at the peculiarities of the cas e. It is not poss ible to categorize the offences in this respect.

Procedure when the offender breaches the conditions of Probation  As per Section 9, if the court which pas ses an order under s ection 4 in res pect of an offender or any court which could have dealt with the offender in res pect of his original offence has reason to believe, on the report of a probation officer or  otherwise, that the offender has failed to obs erve any of the conditions of the bond or bonds entered into by him , it may iss ue a warrant for his arrest or may, if it thinks fit, issu e a s umm ons to him and his sureties , if any, requiring him o r them to attend before it at such tim e as m ay be specified in the summ ons. The court before which an offender is so brought or appears m ay either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing. If the court, after hearing the case , is satis fied that the offender has failed to obs erve any of the conditions of the bond or  bonds entered into by him, it may forthwith (a) sentence him for the original offence; or  (b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impos e upon hi m a penalty not exceeding fifty rupees . (4) If a penalty imp osed under clause (b) of sub-s ection (3) is not paid within s uch period as the court may fix, the court may sentence the offender for the original offence. It is im portant to note that the s entencing in respect of which the probation is given is merely sus pended when the offender  is released on probation under Section 4. Thus, if any condition of the probation is violated, the court may sentence the offender for the original offence without conducting a fresh trial.

Probation Officer and his dutie s  As per Section 13, a probation officer under this Act shall be - (a) a person appointed to be a probation officer by the State Government or recognised as such by the State. Government ; or (b) a pers on provided for this purpos e by a s ociety recognized in this behalf by the State Government; or (c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the s pecial circums tances of the case. Section 14 - Duties of probation officers  A probation officer shall , subject to such conditions and res trictions, as ma y be pres cribed,(a) inquire, in accordance with any directions of a court, into the circums tances or hom e s urroundings of any person accused of an offence with a view to ass ist the court in determining the mo st sui table method of dealing with him and subm it reports to the court. (b) supervise probationers and other person s pl aced under his supe rvisi on and, where necess ary, endeavor to find them suitable employment ; (c) advise and as sis t offenders in the payme nt of compen sation or cos ts ordered by the court ; www.hanumant.com/CrPC-Unit1314-ProbationOfOffendersAct.html

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(d) advise and as sis t, in such cases and in such m anner as m ay be prescribed, persons w ho have been released under  section 4; and (e) perform s uch other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offende rs Act  As per Section 19, in the states where Probation of Offenders Act is enacted, Section 360 of CrPC shal l ceas e to apply. Thus, it is clear that Section 4 of Probatio n of Offenders Act has overriding effect. Section 360 of CrPC - Order to release on probation of good conduct or after adm onition :--(1)When any person not under  twenty-one years of age is convicted of an offence punis hable with fine only or with im prisonm ent for a term of seven years o r  les s, or when any person under twenty-one years of age or any woman is convicted of an offence not punis hable with death or im prisonm ent for life, and no p revious conviction is proved agains t the offender, if it appears to the Court before which he is convicted, regard being had to the age, Ch aracter or antecedents of the offender, and to the circums tances in which the offence was comm itted, that it is expedient that the offender should be releas ed on probation of good conduct, the Court ma y, instead of sentencing him at once to any punis hmen t, direct that he be release d on his entering into a bond, with or  without sureties, to appear and receive s entence when called upon during s uch period (not exceeding three years) as the Court may direct, and in the m eantime to keep the peace and be of good behavior.

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