Jamia Millia Islamia

Project on
Criminal procedure law

Topic : Release on good conuct

Act: Probation of offenders act 1958

Submitted to: Assoc.prof (Dr) Asad malik

Submitted by: Mohd riyaz ahmad

Sec-B , 9th semester
Faculty of law
Jamia millia islamia

Probation of offenders act 1958 Page 1

ACKNOWLEDGEMNT

I am feeling highly elated to work on the topic “release of accused on good

conduct” under the guidance of my faculty of criminal procedure code,
Assoc.Prof. (dr.) Asad malik. I am very grateful to him for his exemplary
guidance. I would like to enlighten my readers regarding this topic and I hope I
have tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this

project was not possible. Apart from all these, I want to give special thanks
to the librarian of my faculty who made every relevant materials regarding to
my topic available to me at the time of my busy research work and gave me
assistance. And at last I am very much obliged to the God who provided me
the potential for the rigorous research work.

Probation of offenders act 1958 Page 2

 Table of content page no.

1. Introduction………………………………………………………... 4
1.1 Meaning
1.2 Origin and Development

2. Current Laws in India……………………………………………….8

2.1 The Probation of Offenders Act 1958: Major act dealing with
Probation in India
2.2 Release on Probation……………………………………………14
2.2.a The conditions to release certain offenders under Section 4 of the
Probation of Offenders Act

3. Procedure For Probation Service………………………………………15

4. Probation under the Code of Criminal Procedure1973……………...17

5.Probation and Parole……………………………………………………….19

6.Judicial Trends………………………………………………………………..18
7.Case laws relating to Non-applicability of Section 4 of the Act are………..22

8. Problems in the Practical Implementation of Probation in India………..22

9. Recent case laws………………………………………………………………24

10. Bibliography………………………………………………………………..28

Probation of offenders act 1958 Page 3

1. Introduction
Meaning, Origin and Development

Modern Criminal Jurisprudence recognizes that criminals are not born but made, since when a
crime occurs it takes place due to culmination of variety of factors and that a good many crimes
are the result of socio-economic milieu1. These factors may be social and economic, may be due
to erosion of moral values by parental neglect, stress of circumstances or doing a criminal
activity in spur of heat of a moment. So, whenever a criminal activity takes place it’s not always
that the person so involved had prior intention to commit the crime; thus sentencing such a man
to prison term may often embitter him and when he comes out of the prison bars he becomes an
enemy of society. Thus, it is absolutely necessary to rekindle him and bring him into mainstream
of life.
This type of rekindling can be best tried through parole and probation, community service and
creative and employment opportunities. Thus probation service is becoming increasingly popular
for many reasons, the most important being the economic cost of maintaining offenders in
prison. Probation as a method of correctional service evolved after the criminologists and legal
jurists thought of means of reformation to criminals by giving them a chance to prove “their
worth” and not confine them to the prison bars.

1.1 Meaning
The word “probation” is derived from the Latin word “probare” meaning “tested” or
“proved”. The first Probation officer in this world is said to be JOHN AUGUSTUS, a Boston
Cobbler who is regarded as the “Father of Probation” who in 1841 volunteered to assist
offenders if the court would release them to his care2. As John Augustus was a cobbler operating
in and around the courts of Boston, he daily used to watch the court proceedings of the criminals
and used to wonder on the alternative methods available for the rectification of criminals other
than imprisonment, a method enabling the criminals to rectify their mistakes and lead a normal

1 Sabyasachi Ghosh, Probation and Parole as methods of mainstraiming criminals: A Socio-legal analysis from Indian
perspective, (Unpublished project, West Bengal National University of Juridical Sciences, India)
2 Prof. N.V. Paranjape, Criminology & Penology with Victimology 521 (Central Law Publications, Allahabad, 11 th edn., 2011)

Probation of offenders act 1958 Page 4

societal life far away from the dark side of criminal world. John Augustus also had the self-belief
that young culprits convicted of criminal offence if sentenced to prison would make them more
strong hard and fast criminals by mixing with other old criminals. Thus the entire life of these
culprits would be ruined if they are made to stay in jails without giving them a chance to reform
themselves or rectify their mistakes. This thinking led John Augustus to formulate the concept of
Probation who later in 1841 appealed to the court to voluntarily assist the offenders and lead
them to correctional methods if the court would release them to his care.

A compact definition of Probation can be stated as “Probation is a method of treating suitably

selected offender by releasing him into the community upon certain conditions prescribed by the
court on conviction, before sentencing (offender) generally upon supervision of Probation
Officer3. Some of the noteworthy definitions of probation can be listed as follows:
According to Don M. Gotfriedson4, “Probation is a procedure by which a convicted person is
released by the court without imprisonment subject to conditions imposed by the court. Thus
probation is part of the decision making process of judges at the time of sentencing”. The object
of probation, as of all methods of treatment, is the ultimate rehabilitation of the offender in the
community.

Donald Taft5 has defined probation as the postponement of final judgment or sentence in a
criminal case, giving the offender an opportunity to improve his conduct and to readjust himself
to the community, often on conditions imposed by the court and under the guidance or
supervision of an officer of the court.

Correctional services like Probation and Parole are also important in the administration of
Criminal Justice and in the method of mainstreaming criminals as it is an integral part of the total
structure of the punishment system in a contemporary legal world. It also serves as an alternative
to imprisonment especially of short-term and has now taken within its purview all the offences

3 Sabyasachi Ghosh, Probation and Parole as methods of mainstraiming criminals: A Socio-legal analysis from Indian
perspective, (Unpublished project, West Bengal National University of Juridical Sciences, India)

4 Ibid 7 at 522

5 Ibid

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except those punishable with death or imprisonment for life. Legal statutes like Probation of
Offenders Act, 1958 and the Code of Criminal Procedure, 1973 have made probation a more
viable method of dealing with offenders than imprisonment, because the judge is required to
record special reasons in the judgment of a criminal case other than capital punishment and
imprisonment for life stating why probation is not granted to all the eligible offenders
irrespective of their ages.

The word probation is used in four ways6:

(a) Disposition: suspension of sentence,
(b) A status: Position of an offender sentenced to probation,
(c) Subsystem: subsystem of the criminal and juvenile justice system, and
(d) Process: set of functions, activities and services that characterize the system’s transations
with the courts, the offender and the community.

1.2 Origin and Development

Correctional services like Probation and Parole is an integral part of the total structure of the
punishment system in a contemporary legal world. Conceptually, the system of Probation has
developed not before the middle of nineteenth century, yet this concept was not unknown in our
good old days of ancient Indian civilization. The idea developed more cogently during the latter
part of the 19th century and earlier years of 20th century. The first Probation officer in this world
is said to be JOHN AUGUSTUS, a Boston Cobbler who is regarded as the “Father of Probation”
who in 1841 volunteered to assist offenders if the court would release them to his care. In Britain
Mathew Davanport Hill was the first person who started the practice of conditional suspension of
punishment or Probation. He introduced two elements of probation:
(a) lessening of punishment
(b) Supervision.

6 M. Ponnian, Criminology and Penology 185 (Pioneer Books, Delhi, 3rd edn. 2003)

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When Mathew Hill became magistrate in 1841 in Warwickshire Quarter Sessions Court, he
suspended even one day jail sentence and used to consider the prior status of the offender
The administration of Criminal Justice in India during the time of Muslim reign in India upto the
advent of British rulers was based on Islamic Criminal Law which did not recognise principles of
correctional method or admonition. However, the judicial system in India went through the
process of progressive evolution as evident from the fact that the ideal of welfare state was
achieved and culminated to its apex during the Mauryan age during the reign of Ashoka, when
the whole machinery of the state was diverted towards attaining this ideal. The end of law was to
facilitate the welfare of men, both individually and socially. Also, we do find traces of principles
of probation during Maratha rule and Peshwa period where cases of an offender who committed
a crime was not at once awarded punishment but was given a chance to improve himself. The
cases include7:

 Case of Viswanath Bhatt Patankar- In 1775-76 one Vishwanath Bhatt Patankar was
arrested for committing thefts. Since, he was unable to furnish security he was sent to
prison. Janardhan Bhatt Bhide, a cousin of Vishwanath Bhatt stood surety for him
promising that he would not again commit theft or any other offence.
 Case of Janki Lagadin- In 1785-86, one Janki Lagadin was imprisoned at Fort Visapur
for charges of adultery. Her father Shivaji Gaikwad prayed for her release. The prayer
was granted on his standing as surety for her future good conduct.
The above cited two cases can be said to be the earliest cases of Probation in India.

However, although the probation system rooted in ancient Indian Criminology, found its legal
recognition for the first time in 1898 in section 562 of the then Criminal Procedure Code. This
section was actually taken from the English Probation of First Offenders Act, 1887. Even S.562
was amended by the amendment of Cr.P.C. in 1923 which drastically changed the law of
Probation in India. The old S.562 did not contain any specific provision empowering High Court
as a court of Revision in Probation matters which was granted in new section. Also, under the
new section 562 of 1923, a court may grant probation in case of offenders not under the age of

7 Supra note 3

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21 years for offences punishable with not more than 7 years and in respect of woman offender
below 21 years for offences punishable with death or imprisonment for life. During 1931, the
Government of India circulated a proposed draft of Probation of Offender Bills to the then local
governments, provinces and princely states for their views. In pursuance of the above suggestion
some provinces enacted their own probation laws. The enactments include:
(1) The C.P. & Berar Probation of Offenders Act, 1937
(2) The Bombay Probation of Offenders Act,1938
(3) The U.P. First Offenders Act, 1938.

After India attained Independence, a joint committee was set up under the chairmanship of Mr.
Hukum Singh on the bill to provide for release of offenders on Probation. This bill was
presented in front of Lok Sabha on the 25th of February, 1958. The descent views of the Bill
were expressed by several members of the Lok Sabha like Rajendra Pratap Singh, Jagdish
Awasthi, Yadav Narayan Jadhav. This bill was finally passed by the Legislature to give shape to
an Act called Probation of Offenders Act, 1958 on May 16, 1958.

2. Current Laws in India

2.1 The Probation of Offenders Act 1958: Major act dealing with Probation in
India

Probation of Offenders Act, 1958, has been enacted with an emphasis on the reformation and
rehabilitation of the Offenders as useful and self-reliant members of society without subjecting
them to deleterious effects of jail life8. The Act is a reformative measure and its object is to
reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully
rehabilitated in society. A jail term should normally be enough to wipe out the stain of guilt but
the sentence which the society passes on convicts is relentless9. The ignominy commonly
associated with a jail term and the social stigma which attached to convicts often render the
remedy worse than the disease and the year purposes of punishment stands in the danger of being
frustrated. In recalcitrant cases punishment has to be deterrent so that others similarly minded

8 Jaisankar vs State Rep. by The Inspector of Police Aykkudi Police Station, Tirunelveli District, CRL.R.C. (MD)No.371 of 2012

9 Gurinder Singh v State Of Haryana, CRR No.2093 of 2012

Probation of offenders act 1958 Page 8

may warn themselves of the hazards of taking to a career of crime. But the novice who strays
into the path of crime ought, in the interest of society, be treated as being socially stick. Crimes
are not always rooted in criminal tendencies and their origin may lie in psychological factors
induced by hunger, want and poverty. The Probation of Offenders Act recognises the importance
of environmental influence in the commission of crimes and prescribes a remedy whereby the
offender can be reformed and rehabilitated in society10.

Release on probation is based on four factors

1. Circumstances of the case: there is no straitjacket formula for releasing the accused on
probation. But it should depend upon the circumstance of each and every case.
2. Nature of the offence: before releasing the accused on probation, the court has to look
into the nature of the crime.
3. Age of the accused person: is one of the important factor for releasing the accused on
probation.
4. Character of the accused: an offender can only be released on probation on the basis of
good conduct and character.

Depending on the circumstances of the case, a court may release the person in two ways:

(a) release after admonishing the person, which is provided in Section 3, and
(b) release on probation of good conduct, which is provided in Section 4.

 Release After Admonishing: Admonishing means to warn or reprimand. In this

mode of release, the court scolds the person, and in a way, tries to appeal to the good
conscious of the person and releases him.

10 Arvind Mohan Sinha v. Amulya Kumar Biswas and others, 1974 AIR (SC) 1818

Probation of offenders act 1958 Page 9

 2.2 Release on Probation
As per Section 4, if any person is found guilty of having committed an offence not punishable
with death or imprisonment for life and the court by which the person is found guilty is of
opinion that, having regard to the circumstances of the case including the nature of the offence
and the character of the offender, it is expedient to release 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 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. The section further requires that the offender or his
surety has a fixed place of residence or regular occupation in a place where the court exercises
jurisdiction. Also, before making any such order, the court shall take into consideration 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 also gather information
from other source and on its own analysis.

The court may also require the offender to remain under the supervision 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 impose appropriate conditions which might be required for such supervision. In case the
court does specify such conditional release, it must require the offender has to enter into a bond,
with or without sureties, enumerating the conditions. The conditions may relate to place of
residence, abstention from intoxicants, or any other matter as the court thinks appropriate to
ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or section 4, may,
if it thinks fit, make at the same time a further order directing him to pay:

 such compensation as the court thinks reasonable for loss or injury caused to
any person by the commission of the offence ; and
 Such costs of the proceedings as the court thinks reasonable.

Probation of offenders act 1958 Page 10

In case of petty offences where there is no record of any previous conviction, the accused shall
be undoubtedly released on probation11.

2.2.a The conditions to release certain offenders under Section 4 of the

Probation of Offenders Act are:

(1) Any person is found guilty of having committed an offence;

(2) The offence committed must not be one punishable with death or imprisonment of life;

(3) The Court must opine that it is expedient to release him on probation of good conduct
instead of sentencing him to any punishment;

(4) The Court may form such opinion having regard to: (i) the circumstances of the case; (ii) the
nature of the offence; and (iii) the character of the offender; and

(5) The offender or surety must have a fixed place of abode or regular occupation in a place
situate within the jurisdiction of the Court.

The word ‘character’ is not defined in the Act. Hence, it must be given the ordinary meaning.
The dictionary meaning of ‘character’ is mental or moral nature of a person that make him
different from others.

Section 4(1) of the Probation of Offenders Act does not contain any restriction that the offender
must be 21 or below that age although this restriction is found in Section 6.

In Ishar Das v. State of Punjab, the Supreme Court held that sub-section (1) of Section 4 of the
Act does not distinct between persons of the age of more than 21 years and those of the age of
less than 21 years and the sub-section is applicable to persons of all ages subject to certain
conditions which have been specified therein.

11 Ram Narayan Singh & Ors v State Of Bihar on 17 January, 2013

Probation of offenders act 1958 Page 11

  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
give the benefit of probation. The words, "if the court is of the opinion" basically give
discretionary power to the court in this respect. Section 6, however, tries to impress upon
the court to lean in favor of giving benefit in cases of young and immature adults. When
any person under twenty-one years of age is found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment 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 circumstances 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. For the purpose of satisfying itself whether it would
not be desirable to deal under section 3 or section 4, the court shall call 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 condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the legislature is to
give the benefit of probation as much as possible. In Jugal Kishore Prasad v State of Bihar12,
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 made to
bring about correction and reformation of the individual offenders and not to resort to retributive
justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good
many crimes are the product of socio-economic milieu." In absence of a precise formula to
determine when 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
applicability of probation for many kinds of offences

12 1972 AIR (SC) 2522

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In Uttam Singh v Delhi Administration13, 1971, the appellant was of 36 yrs of age and was
caught with 3 sets of playing cards and obscene photographs. SC refused to allow him the benefit
of release on probation having regards to his age and nature of crime. There have been cases
where the court has let of even rapists on probation and there have been cases where even minor
offenses have not been given the benefit of probation. It can be said that this benefit is given on
case to case basis after looking at the peculiarities of the case. It is not possible to categorize the
offences in this respect.

 Court in Om Prakash & Ors. Vs State of Haryana14, and held that such a relief should be
granted where the offence had not been of a very grave nature. In offences involving
punishment under Section 376 of the Penal Code, the provisions of Probation of
Offenders Act are not attracted. The benefit of this was given where there was attempt to
commit rape15. However, even in rape case where the girl was below 16 years of age, the
fact that the offender was also young and considerable time has lapsed since the incident
were given consideration and probation was granted16. The benefit of probation would be
unavailable in cases under section 354 of IPC against a girl of 6 years17.
 Procedure when the offender breaches the conditions of Probation: As per Section
9, if the court which passes an order under section 4 in respect of an offender or any court
which could have dealt with the offender in respect of his original offence has reason to
believe, on the report of a probation officer or otherwise, that the offender has failed to
observe any of the conditions of the bond or bonds entered into by him, it may issue a
warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if
any, requiring him or them to attend before it at such time as may be specified in the
summons. The court before which an offender is so brought or appears may either
remand him to custody until the case is concluded or it may grant him bail, with or

13
1974 AIR 1230, 1974 SCR (3) 722

14
(2001)10 SCC 477, Karamjit Singh vs State Of Punjab, [2009] INSC 1142
15
State of Haryana v. Prem Chand, 1997 SCC 1176
16
Manoj Kumar v State, 2001 CrLJ 3270
17
Sajeevan, S/O.Raman v State Of Kerala, Crl. Rev. Pet. No. 425/2002

Probation of offenders act 1958 Page 13

 without surety, to appear on the date which it may fix for hearing. If the court, after
hearing the case, is satisfied that the offender has failed to observe 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, impose upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as
the court may fix, the court may sentence the offender for the original offence.

It is important to note that the sentencing in respect of which the probation is given is merely
suspended 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.

3. Procedure For Probation Service

S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that the judge would
consider the report of the probation officer before deciding on whether to grant probation.
S. 14 of the said Act lays down the duties of the Probation Officers.

The pre-sentence report of the Probation Officer is the fundamental document for the
guidance of the Court whether to grant the benefit of probation to the accused or not. The
object of the pre-sentence report is to appraise the court about the character of the
offender, exhibit his surroundings and antecedents and throw light on the background
which prompted him to commit the offence and give information about the offenders
conduct in general and chances of his rehabilitation on being released on probation.

The judge may also pass a supervision order under section 4(3) of the Act, whereby the
offender is placed under the supervision of a probation officer and certain conditions are
imposed upon him. This is mostly in the form of regular visits to the supervising officer.
Some of the conditions which must be followed have been laid down in S. 4(4). On the

Probation of offenders act 1958 Page 14

 application of the probation officer such conditions may be varied- S. 8(2) and also the
offender may be discharged- S. 8(3). If the offender fails to follow the conditions laid
down by the Court, the original sentence against him may be revived S. 9

4. Probation under the Code of Criminal Procedure 1973

Section 360 provides for release on probation of good conduct or after admonition. The section
grants probation to the following categories:

 Any person not under twenty- one years of age convicted of an offence punishable with
fine only or with imprisonment for a term of seven years or less, or
 Any person under 21 years of age or
 Any woman convicted of an offence not punishable with death or imprisonment for life,

Provided that no previous conviction is proved against the offender and 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.

The section also states that such release shall not exceed three years and the Court may direct
and in the meantime to keep the peace and be of good behavior.

 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.

Probation of offenders act 1958 Page 15

  For granting probation, the Court, 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.
 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
apprehension.
 The Section also states that nothing in the said section shall affect the provisions of the
Probation of Offenders Act, 1958, or the Children Act, 1960, or any other law for the
time being in force for the treatment, training or rehabilitation of youthful offenders
thereby protecting the youth offenders

Besides section 360, section 361 states that mandatory duty is cast upon the court to record in its
judgment, specific reasons for not granting benefit of section 360 where it could have dealt with
the accused under that section18.

Probation under the Act of 1958
1. Any person found guilty of an offence
not punishable with death
imprisonment for life may be released
by the court on probation of good
conduct and no distinction is made on
the ground of age or sex.
Probation under the CrPC 1973
1. The court may release on probation of
or good conduct in case of:
(a) Person not below 21 years of age
convicted of an offence punishable
with fine only or with imprisonment
for a term of less than 7 years19, or;
(b) Any person under 21 years of age
or a woman convicted of an offence
not punishable with death or

18 Chandreshwar Sharma v State of Bihar (2000) 9 SCC 245

19However in Joginder Singh vs. State of Punjab, 1980 CRLJ (Criminal) 150, Vijay Kumar Jindal v State of Punjab, 2004(2)
RCR (Criminal) 816, Hem Raj vs. State of Punjab, 2008(3) RCR (Criminal) 475 and Puran Singh v State of Punjab on 5
December, 2012, the court held that prescription of minimum sentence is no bar for attracting the provisions of the
Probation of Offenders Act or as a matter of fact Sections 360 and 361.

Probation of offenders act 1958 Page 16

 imprisonment
2. Application of the Act is not restricted 2. Applicable only where the offender has no
to first time offenders. record of previous conviction.
3. Discretion of the court for granting 3. The discretion of the court has to be
probation has to be objectively objectively determined in regard to the
determined regard being had to age, circumstances of the case including nature of
character, previous convictions and the the offence and character of the offender.
circumstances in which the offence was
committed.
4. Any magistrate may pass an order 4. Only a magistrate of first class may pass an
under the Probation of Offenders Act. order under section 360 of the Code.
5. Before making an order under section 4 5. There is no provision for taking into
of the Act, the court shall take into consideration, the pre-sentence report of
consideration, the report, if any, of the probation officer concerned20.
probation officer concerned, in relation
to the case.
6. Under section 4(3) of the Act, the court 6. CrPC does not provide for any supervision
may pass a supervision order directing through the probation officer.
that the offender shall remain under the
supervision of a probation officer
7. The court making a supervision under 7. There is no such provision of giving a copy
section 4 of the Act shall explain to the of the order to the offender or the surety under
offender, the terms and conditions of section 360 CrPC.
the order and shall forthwith furnish
one copy of the supervision order to
each, the offender, the surety and the
P.O.

20 Gulzar v State of Madhya Pradesh, MANU/SC/0176/2007

Probation of offenders act 1958 Page 17

 5. Probation and Parole
Although parole, like probation is based on the principles of individualization of treatment of
offenders and both include a program of guidance and assistance to the delinquents, yet the two
differ in many aspects. The fundamental points of difference between parole and probation are
noted hereunder:
 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 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 much later, around 1900.
 A prisoner can be released on parole only after he has already served a part of his
sentence in a prison or a similar institution. Thus it essentially involves an initial
committal of an offender to a certain period of imprisonment and a conditional release
subsequently and after serving a part of the sentence. But in case of probation, no
sentence is imposed, or if imposed, 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 a prison
or a similar institution for certain minimum period and has shown propensity for good
behavior21.
 As rightly pointed by Dr. Sutherland, a probationer is considered as if undergoing
‘treatment’ while he is under threat of being punished if he violates the conditions of
probation; but a parolee is considered to be in ‘custody’ undergoing both’ punishment
and treatment while under threat of more severe punishment, i.e., return to the institution
where he was released from.
 Another notable distinction between probation and parole is that former is a judicial
function while the latter is essentially quasi-judicial in nature. Probation implies a
procedure under which a person found guilty of an offence is released by the court
without imprisonment subject to the conditions imposed by the court and subject to the
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 the conditions

21Prof. N.V. Paranjape, Criminology & Penology with Victimology 521 (Central Law Publications, Allahabad, 11th edn.,
2011)

Probation of offenders act 1958 Page 18

 imposed by the parole board. Thus, the release of parolee is not the result of judicial
decision.
 It has been alluded by J.L. Gillin that probation is probably the first stage of correctional
scheme, parole being the last stage of it.
 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 conduct22, but a prisoner released on
parole suffers stigmatization as a convicted criminal in the society23.

6. Judicial Trends

Inspite of all these plausible legislative measures the worst ignominy of all rankles is that the
judiciary of India has not yet rightly visualized the contours of these measures and in an umpteen
number of appeals and revisions to the higher judiciary, inspite of the fact that a massive number
of offences committed due to socio-economically polluted surroundings, the courts have a raw
deal with the most effective panacea24.

Magistrates and Judges may exercise a wise discretion in making a liberal use of the Act by
releasing the offender on probation. Unless cases are referred by the Court, the Probation Officer
will not be able to render his services to the probationer. It is a joint venture of the Judges and
Probation Officers. Greater cooperation and coordination between the court and the Probation
Officer breeds greater understanding.

Before selection of cases on Probation, Judges must try to answer several questions, such as:
1) Was the offence committed without pre-mediation or after due deliberation?
2) Whether there is hope of ever reclaiming him from being a menace to the society?
3) Is he a person who is patently amenable to reformation?
4) Will an order of Probation have the effect of redeeming the offender?

22 Section 12, Probation of Offenders Act 1958

23 Supra note 21

24 Abdul Hamid, “Probation: A predilection in Penology” 42 IJCC ILI (1989)

Probation of offenders act 1958 Page 19

Law on the point as to whether the benefit of probation under the Probation of Offenders Act,
1958 should be granted to the accused- convicted for offence under Section 304-A IPC, has been
settled by Hon'ble Apex Court in Dalbir Singh vs. State of Haryana25, by observing that the
courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act, 1958
when the accused is convicted of the offence under Section 304-A IPC in causing death of
human beings by rash or negligent driving. Same was held in B. Nagabhushanam v. State of
Karnataka26. However, consideration has been given by the court to the fact that the petitioner is
first offender and only bread winner of the family and that he has been facing agony of trial for
the last about ten years27. Hence, it is contended that he be given benefit of probation under the
Probation of Offenders Act, 1958.

It has been laid that the phrase, 'punishable with death or imprisonment for life,' occurring
in Section 4(b)(ii) of the Act has to be interpreted disjunctively and, therefore, the section could
not be availed of by a person, who was convicted of an offence, which is punishable either with
death or with imprisonment for life. Therefore, the learned Judge was of the opinion that the
applicant, who had been convicted of an offence under Section 376, Indian Penal Code could not
avail of the benefit of probation28.

In Kehar Singh V. Regional Employment Offices Chandigarh29 the Petitioner was removed
from his service for he was convicted for an offence u/s 380 of IPC despite of the fact that he
was dealt with u/s 4 of the Probation of Offenders Act 1958. He was reinstated to the service on
the ground that provision of S. 12 of the Act removes disqualification attached to conviction in
the Probation cases. In Uttam Singh V. Delhi Administration30 the Appellant was convicted
under S. 292 of IPC for in possession of three pockets of play cards and some obscene

25 2000 (2) RCR (Crl.) 816

26 2008(3) RCR (Crl.)50

27 Charan Singh v State Of Punjab on 15 January, 2013

28 Chetti vs State Of Madhya Pradesh 1959 CrLJ 989

29 1967 Serv LR 527

30 A.I.R. 1974 S.C. 1230

Probation of offenders act 1958 Page 20

photographs. Having age of the offender (that time he was 36 years) in regard the Supreme Court
refused to allow him the benefit of release on probation as he was potential danger to the society.

In Trikha Ram V. V.K. Seth31 the Supreme Court reiterate the fact that the accused convicted of
a criminal offence and released on probation cannot be dismissed by the disciplinary Authority in
view of S. 12 of the probation of offenders Act 1958.

In Smt. Devki v State of Haryana32 the petitioner found guilty of abducting a teenage girl of 17
years and forcing her to sexual submission with commercial object. The supreme court held that
the provisions of Probation of Offenders Act cannot be extended to this abominable culprit.

In cases relating to Prevention of Food Adulteration Act 1954, the High Courts have
followed a zig zag way.

In re Salem Govindappa Chetti33, the accused was convicted under the food adulteration act for
selling articles containing matter in violation of the provisions of the act. The High Court
confirmed the sentence but ordered the release on probation on account of his old age of 60 years
and his being ‘petty shopkeeper’. While in Atma Coori v State34 the respectability of the offender
was given consideration by the court to give benefit of probation inspite of the fact that the
offender was a big businessman and was caught with 13 mounds and 16 seers of poppy seeds
from his godown and shop, which might be used for preparing opium.

However in Isher Das v State of Punjab35, Supreme Court made a correct analysis by holding
that adulteration of food is a menace to public health and the Food Adulteration Act was enacted
to eradicate anti-social evil and for ensuring purity in the articles of food, but a distinction should
be drawn in evaluating the cases of offenders above the age of 21 years and those below the age.
The court said that the former should not be leniently provided the benefit of probation whereas
those below 21 years should not be deprived of the benefit measures of the Act inspite their
conviction under the Food Adulteration Act.

31 AIR 1988 SC 285

32 AIR 1979 SC 1948

33 1970 CrLJ 1058

34 AIR 1967 Ori. 54

35 AIR 1972 sc 1295

Probation of offenders act 1958 Page 21

 7. Case laws relating to Non-applicability of Section 4 of the Act are:

In Ahmed v. State of Rajasthan36, the Court has held that any person who had indulged in
certain criminal acts resulting in explosive situation leading to communal tension cannot be
given the benefit under the Probation of Offenders Act.

In Devki v. State of Haryana37, the Court has held that the benefit under the Probation of
Offenders Act shall not be extended to an accused person wherein found guilty of abducting a
teenage girl and forcing her to have sexual intercourse.

In lppili Trinadha Rao v. State of Andhra Pradesh, the Court has held that if the beneficial
provision of the Act is extended to the offences like one punishable under Section 354 of Indian
Penal Code for outraging the modesty of a teenaged girl and of like offences on women, would
not only encourage further escalation of the crime but also would become difficult to check or
arrest the perpetration of those crimes imperil the modesty of several innocent girls.

8. Problems in the Practical Implementation of Probation in India

S. 6 of the Probation of Offenders Act, which makes it easier for a person below 21 years of age
to benefit from probation. This is regardless of their antecedents, personality and mental attitude.
It might lead to recidivism because many of them may not respond favourably to this reformative
mode of treatment. Also, in many cases it is difficult to ascertain whether the delinquent is a first
offender or a recidivist.

The Probation of Offenders Act, in sections 4(2) and 6(2), lays down that report of the probation
officer is considered before awarding probation. But, the Courts generally have shown scant
regard for the pre-sentence report of the probation officer because of lack of faith in integrity and
trustworthiness of the Probation Officers. In their view calling for the pre-sentence report would
mean unnecessary delay, wastage of time, undue exploitation of the accused by the probation
officer and likelihood of biased report being submitted by him, which would jeopardize the
interest of the accused and would be contrary to the object envisaged by the correctional penal
policy.

36
(2015) 3 SCC 93

37
1979 AIR 1948, 1980 SCR (1) 21

Probation of offenders act 1958 Page 22

On personal interview with some judicial officers and probation officers, conducted by Abdul
Hamid, it has come to light that neither judicial officers feel it desirable to get report from the
probation officers, nor the probation officers feel it obligatory on their part to submit their reports
in the courts unwarranted.
Section 4 of the Probation of Offenders Act does not make supervision of a person released on
probation mandatory when the court orders release of a person on probation on his entering into
a bond with or without sureties. This is not in accordance with the probation philosophy, which
considers supervision essential in the interests of the offender, against corrective justice.

The lower judiciary in India has not at all taken into consideration the objects and reasons of this
act, while applying its discretion in regard to grant of probation. In an umpteen number of cases
the accused had to move the High Court and even the Supreme Court to get the relief of
probation. If an accused gets relief of probation only in the High Court or the Supreme Court
after passing through the turmoil of a long and cumbersome judicial process, he would,
psychologically, be diverted towards hardened ness and the whole purpose of the Act would be
forfeited.

Variation or discharge of the probationer is based solely on the report of the probation officer;
this leaves the probationer at the mercy of the Probation Officer.
The after probation services are not very effective. Thus, even considering that a sentence of
probation has been passed and the offender is placed under supervision it is nothing more that a
regular visit to the officer. There is no scientific process of rehabilitation and the Probation
Officers arent adequately trained. They are recruited between 20 and 26 years of age. They are
grouped into districts and supervised by a state/provincial chief. There is no in-service training
and occasional refresher courses, and thus they are not adequately trained.

Further, often there is a lack of interest for social service among the probation personnel. Lack of
properly qualified personnel, want of adequate supervision and excessive burden of casework are
attributed as the three major causes of inefficiency of the probation-staff.

Probation of offenders act 1958 Page 23

9. Recent case laws

BHERU SINGH V. LAL SINGH & ANR38’

Respondents have been convicted for offence under Section 324 and 326 of I.P.C. by both the
Courts below. Punishment provided under Section 326 of I.P.C, includes punishment for
imprisonment for life or imprisonment which may extends to ten years, since the sentence
provided for offence under Section 326 of I.P.C. is punishable with imprisonment for life, the
appellate Court erred in giving benefit of Probation of Offenders Act to the respondent.

HELD-. Section 4 of the Probation of Offenders Act, 1958 gives Power of court to release

certain offenders on probation of good conduct. Sub-section 1 of Section 4 of the Act provides

that if any person is found guilty of having committed an offence not punishable with death or

imprisonment for life and the court by which the person is found guilty is of opinion that, having

regard to the circumstances of the case, it is expedient to release him on probation of good

conduct. The court may, instead of sentencing him at once to any punishment direct that he be

released on probation. The wording of Section 4 are explicitly clear, that is if an offence is

punishable for imprisonment of life, benefit of Section 4 of the Probation Offenders Act cannot

be given.

STATE V. RANJEET SINGH @ RAMNI 39

HIGH COURT Judgment 31/07/2017 By way of this appeal under Section 377 Cr.P.C. which is
time barred by 5 days, the State of Rajasthan seeks to assail the judgment dated 14.7.2016 passed
by the learned Special Judge, SC/ST (Prevention of Atrocities Cases) Sri Ganganagar in Sessions
Case No. 41/2013 to question the adequacy of sentence awarded to the respondent Ranjeet Singh
@ Ramni.

38
2018 Cri LJ (NOC 132) 44

39
CRLA Case No. 84 of 2017

Probation of offenders act 1958 Page 24

The trial Judge held the respondent Ranjeet Singh guilty for the offence under Section341, 323
and 325 IPC and extended him benefit of Probation of Offenders Act. The offences for which the
respondent was convicted carry a maximum sentence of 7 years. In absence of any adverse
circumstances viz. Previous criminal conduct which could deprive the respondent from claiming
such benefit, there was hardly anything on record to deny him the benefit of
mandatory provisions of Section 4 of the Probation of Offenders Act. Learned trial Judge
apparently committed no (2 of 2) [CRLA-84/2017] error in extending benefit of probation to the
respondent under Section 4 of the Probationof Offenders Act to the respondent.

Otherwise also the judgment under which the respondent was given benefit of Section 4 of
the Probation of Offenders Act and can only be challenged by way of an appeal under Section 11
of the Probation of Offenders Act whereas the instant appeal has been preferred
under Section 377 Cr.P.C. as such the same is not maintainable.

MANOJ KUMAR SHARMA AND ORS V. STATE OF RAJASTHAN

THROUGH pp..2018

Judgment / Order 31/1/2018 Petitioners had faced trial qua office punishable
under Section 498A, 406 and 323 Indian Penal Code, 1860. Trial Court vide order dated
18.7.2008 ordered the acquittal of the petitioners. Aggrieved against the said order, State
preferred an appeal and the same was allowed by the Appellate Court vide order dated
14.5.2013. Petitioners were convicted qua offence under section 498a, 406, 323 ipc. Vide order
of the even date, petitioners were granted benefit of probation under

Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act). Hence, the
present petition by the petitioners. Learned counsel for the petitioners has submitted that,
although, petitioners have been ordered to be released on probation, but the benefit of section 12
of the Act has not been extended to the petitioners. Section 12 of the Actreads as under:-
Removal of disqualification attaching to conviction.- Notwithstanding anything contained in any
other law, a person found guilty of an offence and dealt with under the provisions of section 3
or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under
such law: Provided that nothing in this section shall apply to a person who, after his release
under section 4 is subsequently sentenced for the original offence.

Thus, as per the above provision, when an accused is granted probation under Section 3
or Section 4 of the Act, he shall not suffer any disqualification, if any, attaching to a conviction
of an offence under such law. Section 12 is clear and unambiguous. Appellate Court was not
required to specifically state in the order that the petitioners would be entitled to benefit
of Section 12 of the Act. The provision of Section 12 of the Act is liable to be extended to an
accused, who has been ordered to be released on probation by giving him benefit of Section 3

Probation of offenders act 1958 Page 25

or Section 4 of the Act. In the present case, petitioners have been granted benefit
of probation under Section 4 of the Act. Hence, the apprehension of the petitioners that they
would not be entitled to benefit of Section 12 of the Act is misfounded as the petitioners are
entitled for benefit of Section 12 of the Act. Petition stands disposed of accordingly.

SIDDANAGOUDA S/O BASAVARAJAPPAGOUDA MALIPATIL V. THE

STATE OF KARNATAKA…..2018

sentence passed by the learned Sessions Judge, in Special Case No.16/2010 convicting the
appellants- accused Nos.1 to 4, 7 to 9 and order of sentence sentencing them for the offences
punishable under Sections 143, 147, 148, 323, 324 and 325 R/W Section 149 of IPC and also
under Section 3(1)(x) of SC/ST (PA) Act, 1989 is set aside and judgment and order of sentence
passed in the said case convicting the appellants/accused Nos.5 and 6 for the offence punishable
under Sections 143, 147, 148, 323, 324 R/W Section 149 of IPC and also under Section 3(1)(x)
of SC/ST (PA) Act, 1989 is also set aside .

However, the judgment convicting the accused Nos.5 and 6 for the offence punishable
under Section 325 of IPC is confirmed and the sentence is modified. The appellants-accused
Nos.5 and 6 are sentenced to undergo rigorous imprisonment for a period of three months for the
offence punishable under Section 325 and to pay a fine of Rs.25,000/- each, in default to undergo
simple imprisonment for one month for the offence punishable under Section 325 of IPC. At this
stage, the learned counsel for the appellants would submit to release the accused persons
on probation of good conduct. Having heard both learned counsel for the appellants and also
learned HCGP, the learned HCGP is directed to get the details of previous conviction if any in
respect the appellants/accused No.5 and 6.

The learned counsel for the appellant Nos.5 and 6 filed applications-IA Nos.1/17 and 2/17
under Section 4 of Probation of Offenders Act, 1958 R/W Section 360 of Code of Criminal
Procedure,1973 along with the affidavits of the appellant Nos.5 and 6 stating in view of
sentencing the appellants for three months, they may be let on admonition and good conduct on
taking bonds. The learned counsel for the appellants would submit that the appellant Nos.5 and 6
who are convicted for the offence punishable under Section 325 of IPC may be let on
under Probation of Offenders Act.

It is submitted that the appellants are having fixed place of residence and do not have any
criminal background. In the circumstances, they may be considered for granting benefit under
the Probation of Offenders Act, 1958. Considering the age and avocation of the appellants, the
sentence of imprisonment of three months, there is no impediment for releasing the appellants
under the Probation of Offenders Act, 1958 for release of the appellants No.5 and 6
on probation of good conduct on they executing bond and required surety before the learned trial
Judge The appellants 5 and 6 are granted the benefit of Probation of Offenders Act. Accordingly,

Probation of offenders act 1958 Page 26

they are ordered to be released under the said Act. The learned trial Judge shall secure the report
from the Probation Officer and pass the necessary orders in accordance with law.

Conclusion

As clear from the above discussion, The Probation System and The Prison System both have
their own style of functioning. Where, the probation system believes in rehabilitation of the
offender by releasing him into the society, the prison system maintains the security of the society
by keeping the offender behind bars. While the former has an individualistic approach the latter,
on the other hand has a socialistic approach.

However, both these system work towards a common goal of attaining a fair criminal justice
system either by protecting the society from the offenders or by giving an opportunity of the
offender to reform and rehabilitate so that he can again fit himself into the society and does not
has to remain aloof and segregated.

Both the system have their own set of rules and functioning sphere. However the best results
could only be achieved by maintaining a harmony between the two goals namely the reformation
of the individual and the protection of the society.

Probation of offenders act 1958 Page 27

10. Bibliography

1. Sabyasachi Ghosh, Probation and Parole as methods of mainstraiming criminals: A

Socio-legal analysis from Indian perspective, (Unpublished project, West Bengal
National University of Juridical Sciences, India)

2. Legal Issues Of Probation: Problems And Prospects: Dr.M. Asad Malik, Indian Bar
Review

3. Nirmal Kanti Chakrabarti, Probation System: In the Administration of Criminal Justice

4. Probation: A study in the Indian context, available at:

http://www.legalserviceindia.com/articles/pro_bat.htm

Probation of offenders act 1958 Page 28