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Suggestions for Probation of Offenders Act, 1958

Be that as it may, it has generally been agreed that probation serves as a potential measure of
social defence for reformation of offenders. It has now been accepted as the most significant
contribution to the new penology practices which is expected to endure, while other methods
of treatment may undergo changes beyond recognition. Probation, together with the juvenile
court system, has brought to forefront, the personal needs and social problems behind the
concepts of crime and punishment. It has helped in creation of new attitudes towards
offenders and extended the function of criminal justice administration beyond traditional
sentencing. However, with a view to making the system more effective and efficient, the
following suggestions may serve a useful purpose:A. Probation must be based on a thorough investigation into the case history of the
offender and the circumstances associated with his crime. While treating offender, his
physical traits and psychological conditions must be thoroughly considered. It must be
thoroughly considered. It must be remembered that individualised method of
treatment essentially implies differed treatment of offenders according to their
individual needs and personality. This is an important factor in the process of
B. Prediction tables should be compiled and used for planning strategies. Such tables
may help in anticipating the probable result of correctional treatment on different
offenders. Prediction tables are being extensively used in the treatment of offenders in
the U.S. and have proved immensely helpful in estimation of offenders personality
for individualised treatment.
C. The success or failure of probation in case of juvenile delinquent largely depends on
his home condition and family surroundings. Experience has shown that juveniles
from broken homes show scant regard of rehabilitative process while those having
good family background respond favourably to the correctional methods of treatment
under probation.
D. The provision contained under section 5 of the Act which provides for compensation
by the probationer to the victim of his crime is kept in suspended suspension. The
court should make extensive use of this provision in view of emerging trends in
victimology and it should be made obligatory for the court to record special reasons
for not passing the order for victims compensation.
E. Excessive control and supervision on the delinquent tends to make him hostile
towards the probation personnel and he may adopt an attitude of indifference and nonco-operation towards them. Obviously, no one likes to be under constant surveillance.
Conversely, slackness in supervision may also lead to equally fatal consequences
which might retard the progress of delinquent under probation. Therefore, a sturdy
policy of mutual trust and no-interference of natural process of growth of the
probationer appears to be the best policy so far treatment of probationer is concerned.
F. Recidivists have often proved a failure in the process of probation. It has therefore,
been generally accepted that probation should only be confined to the cases of
juveniles, first offenders and women offenders.

G. It is generally argued that the system of probation involves discriminatory process and
therefore, violates the constitutional provisions contained in Article 15 and 21. To
obviate this charge, it is suggested that a minimum and maximum limit of sentence
may be prescribed under the law and release of delinquent on probation should be in
between those two extreme limits depending upon his corrigibility and response to
correctional treatment.
H. Though probation as a punitive measure to crime is extensively being used in India,
yet there is an urgent need to extend the system to rural courts where there is general
lack of social agencies to undertake the task of rehabilitation of the offenders. There
are reasons to believe that rural delinquents shall be more responsive to this
correctional method of treatment than urban offenders because of their relatively
simple life-style.
I. The quality of probation service must be improved by making the service conditions
of probation staff more lucrative. This will attract well-qualified and competent
persons to the profession. The probation personnel ought to be specially trained so
that they can discharge their duty as probation officer competently.
J. A nation-wide uniform scheme of training of probation personnel with emphasis on
social-work and rehabilitative techniques would serve a useful purpose to improve the
efficacy of probation in India. The probation officer should possess legal
qualifications so that they are well conversant with techniques of law and procedure
involved in the process of release of offenders on probation. Since, probation work is
quasi-judicial in nature; the incumbents to probation service must be duly qualified in
legal and social welfare work.
K. At present, the work of probation is assigned to different departments in various
States. In some states, probation service is placed under the Social Welfare
Department while in others it functions under the Panchayat Department or the Home
Department. It is advisable to have an independent department of correctional services
on the pattern of state of Gujarat at national level to exclusively deal with
rehabilitation of offenders, of which probation is one of the techniques.
L. It would be useful to organise probation on national level under State tutelage.
International Conferences and seminars on probation and its related aspects may help
in popularising this reformative mode of treating the delinquents. The co-operation of
different social agencies such as schools, the family, the religious institutions and
various other institutions including Scout-guides, Girl-guides, Salvation Army etc.
should be solicited so that rehabilitation of offenders may be possible within the
society itself.

To help offenders become constructive and well-adjusted citizens, society has provided,
among other things, correctional institutions and probation and parole services. These three
related services have much in common; they also have some marked differences and, as is
inevitable in any relationship, they have some conflicts.
The concept of Parole: Introduction
Before comparing the two concepts of Parole and Probation, it is imperative to understand the
concept of parole.
Parole has emerged as one of the most acceptable form of correctional device in modern
penology. It has been universally recognized as one of the most appropriate methods of
treatment of offenders for their reformation and rehabilitation in the normal society after the
final release.
The concept of Parole:
Historically, parole is a concept known to military law and denotes release of a prisoner of
war on promise to return. These days parole has become an integral part of the criminal
justice system, inter-twined with evolution of changing attitude of the society towards the
crime and criminals.
The dictionary meaning of "parole" is: The Concise Oxford Dictionary - (New Edition) "The
release of a prisoner temporarily for a special purpose or completely before the expiry of a
sentence, on the promise of good behaviour; such a promise; a word of honour"
Black's Law Dictionary - (6th Edition) "Release from jail, prison or other confinement after
actually serving part of sentence. Conditional release from imprisonment which entitles
parolee to serve remainder of his term outside confides of an institution, if he satisfactorily
complies with all terms and conditions provided in parole order."
According to the Law Lexicon, "Parole" has been defined as:
"A parole is a form of conditional pardon, by which the convict is released before the
expiration of his term, to remain subject, during the remainder thereof, to supervision by the
public authority and to return to imprisonment on violation of the condition of the parole."

As defined by J.L. Gilli, parole is the release from a penal or reformative institution, of an
offender who remains under the control of correctional authorities, in an attempt to find out
whether he is fit to live in the free society without supervision. It is the last stage of
correctional scheme of which probation be the first. The life in a prison is so restrictive and
rigid that it hardly offers any opportunity to the offender to rehabilitate himself. It is,
therefore, necessary that in suitable cases the inmates should be released under proper
supervision from the prison institute after serving a part of their sentence. This may serve a
useful purpose for their rehabilitation I the society. This object is accomplished by the system
of parole which aims at restoring the inmate to the society as a normal law abiding citizen.
Another criminologist, Donald Taft characterizes parole as a release method which retains
some control over prisoners, yet permits them more normal social relationships in the
community and provides constructive aid at time they most need it. According to him, parole
is release from prison after part of the sentence has been served, the prisoner still remaining
in custody and under stated conditions until discharged and liable to return to the institution
for violation of these conditions.
The ultimate significance of parole lies in the fact that it enables the prisoner a free social life
yet retaining some effective control over him. Every prisoner is carefully watched and one
who shows potentiality for correction and responds favourably to the disciplined life inside
the prison, is allowed considerably liberty and finally released to join the society
conditionally. Thus, parole is essentially an individualized method of treatment of offenders
and envisages a final stage of adjustment of the incarcerated prisoner to the community.
The conditional release from prison under parole may begin any time after the inmate has
completed at least one-third of his total term but before his final discharge. The object is to
adjust the adjustability of responsive inmates to normal society by offering them suitable
opportunity to associate themselves with outside world.
A prisoner released on parole is considered in custody and he is undergoing punishment as
well as receiving assistance while under threat of more severe punishment, that is, return to
prison from which he was released. Thus, parole involves both punishment and rehabilitation
at one and the same time.
As a result of the introduction of parole into penal system, all fixed term sentences of
imprisonment above 18 months are subject to release on licence. Parole is taken as an act of

grace and not as a matter of right and the convict prisoner may be released on condition that
he abides by the promise. It is a provisional release from confinement but is deemed to be a
part of imprisonment. Release on parole is a part of the reformative process and is expected
to provide opportunity for the prisoner to transform himself into useful citizen.
Judicial Approach:
The Supreme Court, in Smt. Poonam Lata v. Wadhawan & Ors.1, has clarified that parole is a
grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole
does not, in any way, change the status of the prisoner.
In yet another case, Avtar Sigh v. State of Haryana2, the Supreme Court observed that
generally speaking, the act of granting parole is an administrative action and parole is a form
of temporary release from prison custody, which does not suspend the sentence of the period
of detention, but provides conditional release from the prison and changes the mode of
undergoing the sentence.
In the case of Dadu @ Tulsidas v. State Of Maharashtra3, it was held by the Supreme Court
that Parole is not a suspension of the sentence. The convict continues to be serving the
sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government
orders. "Parole" means the release of a prisoner temporarily for a special purpose before the
expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from
jail, prison or other internment after actually been in jail serving part of sentence.
Grant of parole is essentially an Executive function to be exercised within the limits
prescribed in that behalf. It would not be open to the court to reduce the period of detention
by admitting a detenue or convict on parole. Court cannot substitute the period of detention
either by abridging or enlarging it. Dealing with the concept of parole and its effect on period
of detention in a preventive detention matter, the Apex Court in Poonam Lata v. M.L.
Wadhawan4 held:
1 AIR 1987 SC 1383.
2 (2002) 2 SCC (Cri.) 504.
3 2004 (6) scc 437.
4 1987 (3) SCC 347.

"There is no denying of the fact that preventive detention is not punishment and the concept
of serving out a sentence would not legitimately be within the purview of preventive
detention. The grant of parole is essentially an executive function and instances of release of
detenus on parole were literally unknown until this Court and some of the High Courts in
India in recent years made orders of release on parole on humanitarian considerations.
Historically 'parole' is a concept known to military law and denotes release of a prisoner of
war on promise to return. Parole has become an integral part of the English and American
systems of criminal justice intertwined with the evolution of changing attitudes of the society
towards crime and criminals. As a consequence of the introduction of parole into the penal
system, all fixed-term sentences of imprisonment of above 18 months are subject to release on
licence, that is, parole after a third of the period of sentence has been served. In those
countries, parole is taken as an act of grace and not as a matter of right and the convict
prisoner may be released on condition that he abides by the promise. It is a provisional
release from confinement but is deemed to be a part of the imprisonment. Release on parole
is a wing of the reformative process and is expected to provide opportunity to the prisoner to
transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of
restrictions to a convict prisoner, but release on parole does not change the status of the
prisoner. Rules are framed providing supervision by parole authorities of the convicts
released on parole and in case of failure to perform the promise, the convict released on
parole is directed to surrender to custody.
Thus, parole is not a suspension or curtailment of sentence originally imposed by the court,
but it is only a substitution, during continuance of parole, of lower type of punishment by
confining the parolee in legal custody, and under the control of warden, within specified
bounds outside the prison.5
Comparing Bail and Parole:
In the case of State of Haryana v. Mohinder Singh6, it was laid down that Parole and Bail are
two different concepts.

5 State of Haryana v. Mohinder Singh, (2000) 1 J.T. (SC) 629.

6 2000 (3) SCC 394.

"Bail and parole have different connotation in law. Bail is well understood in criminal
jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate
provisions relating to grant of bail. Bail is granted to a person who has been arrested in a nonbailable offence or has been convicted of an offence after trial. The effect of granting bail is
to release the accused from internment though the court would still retain constructive control
over him through the sureties. In case the accused is released on his own bond such
constructive control could still be exercised through the conditions of the bond secured from
him. The literal meaning of the word 'bail' is surety.
In Halsbury's Laws of England7, the following observation succinctly brings out the effect of
The effect of granting bail is not to set the defendant (accused) at liberty but to release him
from the custody of law and to entrust him to the custody of sureties who are bound to
produce him to appear at his trial at a specified time and place. The sureties may seize their
principal at any time and may discharge themselves by handing him over to the custody of
law and he will then be imprisoned. 'Parole', however, has a different connotation than bail
even though the substantial legal effect of both bail and parole may be the release of a person
from detention or custody.
Relationship between Probation and Parole:
The two concepts of Probation and Parole are closely related. They have similar
responsibilities, and similar values; their services are based on similar theoretical assumptions
and orientations; they employ common work methods and techniques; they face similar
These are some of the common features that form the basis for the mutual interest and the
cooperation that prevail among the workers in these services.8
A. Similar Responsibility
7 4th Edn., Vol.11, Para 166.
article=4656&context=jclc last accessed on 27/02/2016.

Each field has a responsibility to the offender, to society, and to itself. To the offender,
these services are responsible for assisting him with his personal adjustment and his
relationship to society. To society, they are responsible for its well-being and for
protection from the offender. To themselves, they are responsible for the development
of a body of knowledge and skills and for transmitting it to others in their own and
related services.
B. Similar Values
The workers in these services hold many values in common. More explicitly, they
appreciate and recognize the worth and dignity of the individual. They are concerned
with the offender's morale and self-respect and his feelings of personal worth and
courage. Probation, parole, and institutional people all emphasize trying to understand
and help the offender, but they are not sentimental about their assistance to him.
Rather, high value is placed on his individual responsibility, personal discipline, fair
play, and uprightness.
Probation and parole agents and institutional workers hold the values of industry and
efficiency, intellectual and job freedom in great respect. These values guide their dayto-day work and play a large part in the forward surge of these services today.
C. Similar Theoretical Assumptions
The three services assume, at least tacitly, that antisocial behaviour, like other human
behaviour, is an attempt by the individual to establish some kind of harmony between
his continuously changing personality needs and the demands of the environment; that
antisocial behaviour is an adaptive effort even though it is a delinquent or criminal
effort; and that the offender, in making such an effort, is conditioned by his life
experiences and influenced by the meaning that the current situation has for him. On
these premises, these three services assume that people who manifest antisocial
behaviour can be treated through well planned programs-programs that can
responsibly engage the offender and help him cope with his problems and modify his
D. Similar Orientations
Probation, parole and institutional services have developed some effective ways of
approaching their particular work problems. The workers in these services, guided by
their previous experiences and by theoretical ideas, have thoroughly explored the
difficulties of their work to gain intimate, first-hand knowledge about the problems
facing them. By" judiciously checking and sifting their observations, facts, ideas, and
theoretical formulations, the people of these services make their diagnostic judgment

about the problems at hand and decide on appropriate measures for their remedy. This
is their common orientation to their work.
In the case of Gagnon v. Scarpelli 9, it was observed by the U.S. Supreme Court that Probation
and Parole are two different concepts. A line of distinction was drawn between the two
correctional schemes.
While probation and parole are both considered community corrections and involve
supervision in the community, they differ in other respects. Probation is a sentencing option
available to local judges. Convicted offenders are released by the court to serve a sentence
under court-imposed conditions for a specified period. It is considered an alternative to
incarceration. In most cases the entire probation sentence is served under supervision in the
community. The court retains the authority to supervise, modify conditions, cancel probation
and resentence if the probationer violates the terms of probation.
In contrast to probation, parole is the early release of inmates from correctional institutions
prior to the expiration of the sentence on the condition of good behaviour and supervision in
the community. It is also referred to as supervised release, community supervision, or aftercare. The parole board is the legally designated paroling authority. The board has the
authority to release on parole adults (or juveniles) who are committed to correctional
institutions, to set conditions that must be followed during supervision, to revoke parole and
return the offender to an institution, and to discharge from parole. Thus, probation is a frontend decision that is made prior to incarceration in a jail or prison, while parole is a back-end
decision to release inmates from jail or prison.
Community corrections include traditional probation and parole as well as other sanctions
such as intensive supervision, restitution, community service, correctional boot camps, and
fines. Frequently these alternative punishments or intermediate sanctions come under the
jurisdiction of the agencies responsible for the administration of probation and parole.
Further, taking into consideration, the Indian perspective, the concepts of Probation and
Parole can be distinguished as follows:

9 411 U.S. 778 (1973).

A. As to their historical evolution, the system of probation owes its origin to John
Augustus of Boston who around 1841, tried to convince the judge of Magistrates
court that certain offenders would respond well to his supervision if committed to his
care rather than jailed. The parole, on the other hand, came into existence later
somewhere around 1900.
B. A prisoner can be release on parole only after he has already served a part of his total
sentence in a prison or a similar institution. Thus, it essentially involves an initial
committal of offender to a certain period of imprisonment and conditional release
subsequently after serving a part of the sentence. But in case of probation, no sentence
is imposed, or if imposed, it is not executed. This, in other words, means that
probation is merely the suspension of sentence and is granted as a substitute for
punishment whereas parole is granted to a prisoner when he has already lived in
prison or a similar institution for a certain minimum period and has shown propensity
for good behaviour.
C. According to Dr. Sutherland, a probationer is considered as if undergoing treatment
while he is under the threat of being punished if he violated the conditions of
probation; but a parolee is considered to be in custody undergoing both punishment
and treatment while under the threat of more severe punishment i.e. return to the
institution from which he has been released.
D. Another notable distinction between Probation and Parole is that former is a judicial
function and latter is a quasi-judicial function. Probation implies a procedure under
which a person found guilty of an offence is released by the court without
imprisonment subject to conditions imposed by the court and subject to supervision of
the probation staff. In case of parole, a prisoner is released from prison to the
community prior to the expiration of his term of sentence subject to conditions
imposed by the Parole Board. Thus, the release of parolee is not the result of a judicial
E. It has been alluded by J.L. Gillin that probation is probably of the first stage of
correctional scheme, the parole being the last stage.
F. Probation and Parole also differ from each other from the point of view of stigma or
disqualification attached therewith. There is no stigma or disqualification attached to
an offender who is released on probation of good conduct, but a prisoner released on
stigmatisation as a convicted criminal of the society.
The advantages of probation and parole have been mentioned in the terms of protection of
offenders personality from the contaminating influence of prison life. The released

offender has an advantage of continuing to have a normal social relationships and his
employment. The offender is also spared of the stigma of a prison sentence making the
task of rehabilitation easier. A study in Michigan State of the USA proved that it is more
economical to conduct probation services than to construct new prisons and maintain
them. It is also pointed out that unlike the dependents of an offender sent to prison; the
dependents of a probationer do not have to be supported by welfare agencies.
The object of the criminal justice system is to reform the offender, and to ensure the
society its security, and the security of its people by taking steps against the offender. It is
thus a correctional measure. This purpose is not fulfilled only by imprisonment; other
alternative measures like parole, admonition with fine and probation fulfil the purpose
equally well.
The benefit of Probation can also be usefully applied to cases where persons on account
of family discord, destitution, loss of near relatives, or other causes of like nature, attempt
to put an end to their own lives.
Its aim is to reform the offender and to make him see the right path. This can be achieved
as has been said previously, not only by legislative action but also by sincerity on the part
of the administration.
Thus while concluding it can be said that the concept of Probation would be effective
only where the judiciary and the administration work together there must be a common
understanding between the Magistrate (or) Judge and the Probation Officer. Probation
would be effective only when there is a sincere attempt made to implement it. It would be
of great benefit for a country like India, where the jails are often overcrowded, with
frequent human rights violations which would harden the human inside a person.
Probation is an affirmation of the human inside every being and it must be given de
All Crime is a kind of disease and should be treated as such
- Mahatma Gandhi