Probation in India

Introduction
The problem of easing pressure on prison has been engaging the tension of
penologist throughout the globe. Undoubtedly, probation is one of the measures
which may be used by the courts as an improved form of non - custodial
alternative in place of incarceration. The age old custodial measure and
institutional incarceration presents two crucial problems, namely it increase the
dependence of offender and at same time it decreases his capacity to readjust to
normal society after release, it cannot be said that with the strict prison
sentence the prisoner has really transformed into a law abiding citizen. Other
inevitable consequences that flow from prisonisation of offender are loss of job,
separation from family, and contamination due to association with other
professional delinquents. The earlier in a penological approach held
imprisonment, that is custodial measures to be the only way to curb the crime.
But the modern in a penological approach has ushered new forms of sentencing
whereby the needs of the community are balance with the best interest of the
accused like compensation, release on admonition, probation, imposition of
fines.

Definition of Probation
The term Probation is derived from the Latin word ‘probare’ which means to
test or to prove.
Etymologically, probation means ‘I prove my worth’. Probation is a matter of
discipline and treatment. If probationers are carefully chosen and supervision
work is performed with care and caution, it can work miracles in the field of
rehabilitation. Probation is a procedure by which a convicted person is a
released by a court without imprisonment subject to condition imposed by the
court. Thus, probation is a part of decision-making process of Judges at the time
of sentencing.
Merriam Webster dictionary-
the action of suspending the sentence of a convicted offender and giving the
offender freedom during good behaviour under the supervision of a probation
officer.

According to the United Nations, Department of Social Affairs, The release of

the offenders on probation is a treatment device prescribed by the court for the
persons convicted of offences against the law, during which the probationer
lives in the community and regulates his own life under conditions imposed by
the court or other constituted authority, and is subject to the supervision by a
probation officer. The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary help and guidance
to the probationer in his rehabilitation and at the same time the threat of being
subjected to unexhausted sentence acts as a sufficient deterrent to keep him
away from criminality. The United Nations recommends the adoption and
extension of the probation system by all the countries as a major instrument of
policy in the field of prevention of crime and the treatment of the offenders.

HISTORICAL BACKGROUND OF PROBATION IN INDIA 1

In India, probation received statutory recognition for the first time in 1898
through Section 562 of the Code of Criminal Procedure, 1898. Under the
provision of this section, the first offender convicted of theft, dishonest
misappropriation or any other offence under the Indian Penal Code punishable
with not more than two years imprisonment could be released on probation of
good conduct at the discretion of the Court. Later, the Children Act, 1908, also
empowered the court to release certain offenders on probation of good conduct.
Similar provisions existed in the Children Act, 1960 which were repealed
consequent to passing of the Juvenile Justice Act, 1986. This Act was further
substituted by the Juvenile Justice (Care & Protection of Children) Act, 2000.
The Central Government appointed a committee in 1916 to consider the
provision of the Criminal Procedure Code. Particularly, it suggested revision of
Section 562 and extension of its provisions to other cases also.
The scope of probation law was extended further by the legislation in 1923.
Consequent to Indian Jail Reforms Committee’s Report (1919-20), the first
offenders were to be treated more liberally and could even be released
unconditionally after admonition. The first offenders were classified under two
categories, namely: —
1
Rajan, V.N.,1995, Victimology in India, 1st edn., Ashish Publishing House, New Delhi, p-14
(i) Male adult offenders over twenty-one years of age; and
(ii) Young male adult offenders under twenty-one years of age and female
offenders of any age.
The release of offenders on probation could be extended not only to offences
under the Indian Penal Code but also to offences falling under special
enactments. To cope up with the extended probation, a number of Remand
Homes, Rescue Homes, Certified Schools and Industrial Schools were
established in Bombay, Madras and Calcutta.
The Government of India in 1931, prepared a draft of Probation of Offenders
Bill and circulated it to the then Provincial Governments for their views.
However, the Bill could not be proceeded further due to pre-occupation of the
Provincial Governments. Later, the Government of India in 1934, informed the
local governments that there were no prospects of a central legislation being
enacted on probation and they were free to enact suitable laws on the lines of
the draft Bill.
Consequently, some of the Provinces enacted probation laws which assumed
considerable importance because they introduced for the first-time provisions
regarding pre-sentence enquiry report of probation officer, supervision by paid
and voluntary probation officer and compensation for injury caused to a person
by the offender’s delinquent act. The probation laws enacted by Provinces,
however, lacked uniformity. After the Indian independence, certain concrete
steps were initiated to popularise probation as a correctional measure of
treatment of offenders. A Probation Conference was held in Bombay in 1952 on
the advice of Dr. Walter Reckless, the United Nations Technical Expert on
Correctional Services.
This Conference was a milestone in the progress of probation law in India. The
noted American criminologist, Dr. Walter Reckless addressed the Conference as
a U.N. technical expert and gave valuable suggestions on Prison Administration
in India. Consequently, All India Jail Manual Committee was formed to review
the working of Indian jails and suggest measures for reform in the system.
The Committee in its Report of 1957 pointed out that there was no liaison
between the government, the probation personnel, the police, and the prison
administrators in implementation of the probation law. The Committee also
highlighted the need for a central law on probation with greater emphasis on
release of offenders on probation of good conduct so that they are reclaimed as
self-reliant members of society without being subjected to deleterious effects of
prison life.
In 1958 the Legislature enacted the Probation of Offenders Act, which lays
down for probation officers to be appointed who would be responsible to give a
pre-sentence report to the magistrate and also supervise the accused during the
period of his probation. Both the Act and S.360 of the Code exclude the
application of the Code where the Act is applied. The Code also gives way to
state legislation wherever they have been enacted.
 Importance of Probation

While it is true that punishment gives a sense of satisfaction to the victims and
to the society in general, it has been observed that in most of the cases
punishment, specially imprisonment, does not actually reform the criminal. In
most cases, once a person comes out of a prison, he gets back to his old ways of
conflicting with the law. This is true even more with young criminals, whose
minds are not fully mature. They get influenced in the wrong way because of
their interaction with hardened criminals in jails. Imprisonment decreases his
capacity to readjust to the normal society after the release and association with
professional delinquents often has undesired effects.
According to the United Nations, Department of Social Affairs, The release of
the offenders on probation is a treatment device prescribed by the court for the
persons convicted of offences against the law, during which the probationer
lives in the community and regulates his own life under conditions imposed by
the court or other constituted authority, and is subject to the supervision by a
probation officer. The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary help and guidance
to the probationer in his rehabilitation and at the same time the threat of being
subjected to unexhausted sentence acts as a enough deterrent to keep him away
from criminality. The United Nations recommends the adoption and extension
of the probation system by all the countries as a major instrument of policy in
the field of prevention of crime and the treatment of the offenders.
This is the aim behind Probation of Offender's Act, 1958. It allows the court to
consider the nature of the crime, the age of the offender, and the circumstances
of the crime, and instead of committing the offender to jail, release him under
supervision and guidance of a probation officer. This ensures that the offender
is integrated back into the society. The act is based on the reformatory
approach, which is adopted in many countries of the world. For example, in
USA, almost 60% of the offenders are released on probation.

 
PROBATION OF OFFENDERS ACT, 19582

 Objects, Aims and Reasons for the enactment of the Probation of

Offenders Act, 1958.

The prime object of the Probation of Offenders Act, 1958 is to prevent the
conversion of youthful offenders into obdurate criminals.
The aim of the Act is to provide for the release of offenders on probation or
after due admonition and for matters connected therewith.
The reason for the enactment of the Act is that there are no separate probation
laws at all in several States and even in States where there are probation laws,
they are not uniform nor they adequate to meet the present requirements.
In addition, there has been an increasing emphasis on the reform and
rehabilitation of the offenders as a useful and self-reliant member of society
without subjecting him to the deleterious effects of jail life. Hence, the
Government of India proposed to have a Central law on the subject which
should be uniformly applicable to all the States.
It is also aimed to empower the Courts to release an offender after admonition
in respect of certain specified offences. With the emergence of reformative
theory of punishment, the present Act has been enacted with a view to provide
an offender the opportunity of improving his conducts so as to be able to live in
society. Its aim is the rehabilitation of the offender.
If amateur offender is put in jail along with the criminals, the chances of his
being reformed and made worthy of living in the society are diminished to a
great extent.
The Act aims to empower Courts to release on probation in all suitable cases, an
offender found guilty of having committed an offence not punishable with death
or imprisonment for life. The Act also puts restrictions on the imprisonment in
respect of offenders under 21 years of age.
The Act provides provisions to remain the offenders under the supervision of
probation officers during the period of probation in order that they may be
reformed and become useful members of society.

2
PROBATION OF OFFENDERS ACT, 1958
  Powers of the court regarding release of certain offenders.3

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; or
(b) release on probation of good conduct, which is provided in Section 4.

Both are explained below.

 Release After Admonishing (Section 3 of Probation of Offenders Act,
1958)

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. 
Section 3 says thus: When any person is found guilty of having committed an
offence punishable under Section 379 or Section 380 or Section 381 or Section
404 or Section 420 of the Indian Penal Code or any offence punishable with
imprisonment for not more than two years, or with fine, or with both, under the
Indian Penal Code or any other law, and no previous conviction is proved
against him 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 so to do, then,
notwithstanding anything contained in any other law for the time being in force,
the court may, instead of sentencing him to any punishment or releasing him on
probation of good conduct under section 4, release him after due admonition4
The conditions required to be released under this section are - 
1. The offence must be punishable with imprisonment for less than 2 yrs. or
with only fine or with both, or the offence is punishable under any of the
Sections 379, 380, 381, 404, and 420 of Indian Penal Code.
2. The offender does not have any prior convictions.
3. Court by which the person found guilty of offence, must be of the opinion
after considering the circumstances of the case that it is expedient to do so.
4. Court must form opinion on the basis of nature of offence and character of
offender.
3
Rule of Cr.P.C and Probation of Offenders Act
4
Sec 3 of PROBATION OF OFFENDERS ACT, 1958
Note- It is important to note that a person previously released under Section 4 of
the Probation of Offenders Act will be deemed to be as his previously convicted
and will not be entitled to be released under this section
If the above conditions are satisfied, then the court must take into consideration
the nature of the crime and the antecedents and character of the offender and if
it thinks suitable, it can release the offender after warning.

 Release on Probation (Section 4 of the Probation of Offenders Act,

1958)5

Section 4 of the act deals with the power of the court to release certain
offenders on probation of good conduct.
1. As per Sub-section 1 of 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.

2. As per Sub-section 2 of Section 4, 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.

3. Sub-section 3 of this section further provides that the court may also
require the offender to remain under the supervision of a probation officer

5
Sec 4 of Probation Of Offenders Act
 during certain period, if it thinks that it is in the interests of the offender
and of the public.

4. Sub-section 4 of Section 4 provides that Court 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.

5. As per sub-section 5 of Section 4, the court making a supervision order

under sub-section (3) shall explain to the offender the terms and
conditions of the order and shall forthwith furnish one copy of the
supervision order to each of the offenders, the sureties, if any, and the
probation officer concerned.

 Probation involves:

 Withholding of imprisonment of convicted offender

 Conditional release
 Permission to live in the community
 Supervision of an agent of the Court

 Case Laws

In Jugal Kishore Prasad v. State of Bihar6, the Supreme Court has stated that
the object of the Probation of Offenders Act, 1958 is to prevent the conversion
of youthful offenders into obdurate criminals as a result of their association with
hardened criminals of mature age in case the youthful offenders are sentenced to
undergo imprisonment in jail.

6
1972 AIR 2522
In Arvind Mohan Sinha v. Mulya Kumar Biswas 7, it has been observed that
the Probation of Offenders Act, 1958 is a reformative measure and its object is
to reclaim amateur offenders who can be usefully rehabilitated in society. The
Act recognizes the importance of environmental influence in the commission of
crimes and prescribes a remedy whereby the offenders can be reformed and
rehabilitated in society.
Musa Khan v. State of Maharashtra8
In this case it was held that Probation of Offenders Act is a social legislation
which is meant to reform juvenile offender, so as to prevent there from
hardened criminals by providing them education and reformative treatment by
government.
Jai Narayan v. Municipal Corporation, Delhi9
In this case it was held that there has been an increasing emphasis on
reformation and rehabilitation as useful and self-relying member of society
without subjecting to deleterious effect of jail life.

Ratan Lal v. State of Punjab10

In this case it was observed that Probation of Offenders Act is a milestone in the
progress of modern liberal train to reform the field of penology. It is the result
of recognition of doctrine that object of criminal law is to more to reform the
individual offender than to punish him.

PROBATION UNDER CODE OF CRIMINAL PROCEDURE ACT, 1973

Section 562 of the Code if Criminal Procedure, 1898, was the earliest provision
to have dealt with probation. After amendment in 1974 it stands as S.360 of The
Code of Criminal Procedure, 1974. S. 361 makes it mandatory for the judge to
declare the reasons for not awarding the benefit of probation. Both the Act and
S.360 of the Code exclude the application of the Code where the Act is applied.
The Code also gives way to state legislation wherever they have been enacted.

Section 360 itself makes it quite clear that it shall not affect the provisions of
the Probation of Offenders Act. According to Section 18 of POA read with

7
1974 Cri LJ 391
8
(1976) Cri. LJ 1987 SC
9
1972 2 SCC 637
10
(1965) SC 444
section 8(1), General Clauses Act, 1897, Section 360 of the Code would cease
to apply to the States or parts thereof in which the POA is brought into force.
However, the offender can be still released after admonition or on probation of
good conduct under sections 3 and 4 POA which is wider in its scope than the
provisions of section 360. In that case also, the court will have to use discretion
on the same lines as in cases under section 360.
Chhanni v. State of Uttar Pradesh 11 is a case relating to applicability of
section 360, Cr.P.C. In the instant case it was held that provisions of the two
statutes regarding probation have significant differences and they cannot
coexist. Hence, provisions of section 360 are wholly inapplicable in areas where
Probation of Offenders Act is made applicable. The difference between the two
statutes is that section 360 of the Code relates only to persons not under 21
years of age convicted for an offence punishable with fine only or with
imprisonment for a term of 7 years or less, to any person under 21 years of age
or any woman convicted of an offence not punishable with sentence of death or
imprisonment for life. The scope of section 4 of the probation of offender’s act
is much wider. It applies to any person found guilty of having committed an
offence not punishable with death or imprisonment for life. Therefore, the court
held that the provisions in the two statutes with significant differences could not
be intended to co-exist at the same time in the same area.

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

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

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

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other
law for the time being in force for the treatment, training or rehabilitation of
youthful offenders, but has not done so, it shall record in its judgment the
special reasons for not having done so.

Sanjay Dutt vs State of Maharashtra12 on 21 March 2013

The appellant was charged on four grounds

11
www. Lawctopus.com
12
CRIMINAL APPEAL NO. 1060 of 2007
Firstly, The appellant, in pursuance of the aforesaid criminal conspiracy and
during the period from January, 1993 to April, 1993, agreed to keep in his
possession and acquired 3 AK-56 rifles and its ammunition, one 9mm pistol and
its cartridges and hand grenades, unauthorizedly, which were part of the
consignments smuggled into the country by Dawood Ibrahim Kaskar and his
associates knowingly and intentionally that these were smuggled into the
country for the purpose of committing terrorists acts and that he thereby
committed an offence punishable under Section 3(3) of TADA.
Secondly, the appellant, by doing the aforesaid act, unauthorizedly, in Greater
Bombay which is specified as a Notified Area under Clause (f) of Sub Section
(1) of Section 2 of TADA and thereby committed an offence punishable under
Section 5 of TADA.
Thirdly, the appellant possessed the above-mentioned arms and ammunitions
with an intent to aid terrorists and contravened the provisions of the Arms Act,
1959 and the Arms Rules, 1962, the Explosive Substances Act, 1908 and the
Explosives Rules, 2008 and thereby committed an offence punishable under
Section 6 of TADA.
Fourthly, The appellant, by doing the aforesaid act, committed an offence
punishable under Sections 3 and 7 read with Sections 25(1- A) (1-B)(a) of
the Arms Act, 1959.
Appellant’s counsel stated that appellant had no previous involvement or
conviction prior to one in 1992 which ended in acquittal. Thus, according to
him, he is not a previous offender or a convict. In the event, this Court releases
the appellant on Probation under the provisions of the Probation of Offenders
Act, neither any injustice would occasion to anyone as the offence in which he
was convicted, is not even a social offence nor any prejudice be caused to the
prosecution. He asserted that he is not a habitual offender and is not likely to
commit any offence in future. The TADA Court did not get any opportunity to
complain about the conduct of the appellant in 19 years. He further submitted
that he has also suffered the agony of long trial of 13 ½ (thirteen and a half)
years. The stress and trauma of the same, besides the fact that he has carried the
tag of an alleged terrorist for 13 ½ (thirteen and a half) years though
unwarranted and has been deprived of the company of his daughter, is a
punishment in itself. He has also stated that he had suffered mentally, physically
and emotionally in the last several years.
He also informed this Court that he got married again in the year 2008 and is
blessed with two children aged 1 and ½ years and they need their father’s
presence in their life. He further submitted that he has been actively involved in
an AIDS charity and raises funds for the free treatment of aids patients who
cannot afford the same, besides visiting the hospitals/centres. It is further
submitted that he is on the Board of Directors of “Save the Children
Foundation” and helping in raising funds for children who are needy, orphaned
and destitute as their Brand Ambassador for a long time, even prior to his being
charged in this case.
The Supreme Court discussed the Probation of Offenders Act and observed that:
‘The scope of Section 4 of the Probation of Offenders Act is much wider. It
applies to any person found guilty of having committed an offence not
punishable with death or imprisonment for life. The same has also been held by
this Court in Chhani vs. State of U.P., (2006) 5 SCC 396.
Section 360 of the Code of Criminal Procedure does not provide for any role for
probation officers in assisting the courts in relation to supervision and other
matters while the Probation of Offenders Act does make such a provision.
While Section 12 of the Probation of Offenders Act states that a person found
guilty of an offence and dealt with under Section 3 or 4 of the Probation of
Offenders Act, shall not suffer disqualification, if any, attached to the
conviction of an offence under any law. The Code of Criminal Procedure does
not contain parallel provision. Two statutes with such significant differences
could not be intended to co-exist at the same time in the same area. Such co-
existence would lead to anomalous results. The intention to retain the provisions
of Section 360 of the Code and the Probation of Offenders Act as applicable at
the same time in a given area cannot be gathered from the provisions of Section
360 or any other provisions of the Code.
Keeping that information in the form of an additional affidavit, let us consider
his claim and eligibility of applying Section 4 of the Probation of Offenders
Act.
Sub-section 4 of the Probation of Offenders Act contains the words
“Notwithstanding anything contained in any other law for the time being in
force”. The above non obstante clause points to the conclusion that the
provisions of Section 4 of the Probation of Offenders Act would have an
overriding effect and shall prevail if the other conditions prescribed therein are
fulfilled. Those conditions are:
(i) The accused is found guilty of having committed an offence not punishable
with death or imprisonment for life;
(ii) The Court finding him guilty is of the 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;
(iii) The accused in such an event enters 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 behaviour.
84) The underlying object of the above provisions obviously is that an accused
person should be given a chance of reformation, which he would lose in case he
is incarcerated in prison and associates with hardened criminals. It is submitted
that the provisions of the said Act are beneficial provisions and, therefore, they
should receive wide interpretation and should not be read in a restricted sense
vide Ishar Das vs. State of Punjab, 1973 (2) SCC 65.
Section 4 of the Probation of Offenders Act applies to all kinds of offenders,
whether under or above the age of 21 years. This section is intended to attempt
possible reformation of an offender instead of inflicting upon him the normal
punishment of his crime. It is submitted that it is settled law that while
extending benefit of the said provision, this Court has to exercise its discretion
having regard to the circumstances in which the crime was committed, viz., the
age, character and antecedents of the offender. It is also settled law that such
exercise of discretion needs a sense of responsibility. The section itself is clear
that before applying the same, this Court should carefully take into
consideration the attendant circumstances.’
Thus, the Supreme court held that:
‘The circumstances and the nature of the offence as analysed and discussed
above are so serious and we are of the view that they do not warrant Appellant
the benefit of the provisions of the Probation of Offenders Act, however, taking
note of various aspects, we reduce the sentence to minimum period, viz., 6 years
to 5 years. The appeal is disposed of on the above terms.

 Changes could be brought about in the way administration deals

with probation. Some of them are enumerated below.

 India, being a developing country can’t spend heavily on correctional

measures, as its emphasis would be more on economic improvement. Due
to lack of economic resources most developing countries violate the UN
 Standard Minimum Rules. It wouldn't be possible for India to adopt all of
the measures prescribed by the UN, but India could adopt a few of the
measures.

The first among them must be to have trained probation personnel. This
isn't there today because the task of the probation officers is not given
much importance in India. It is considered to be a mere formality, but if
utilized well they would be most effective. The quality of probation
service must be improved by making the service conditions of the
probation staff more lucrative.

 A nation-wide uniform scheme of training for probation personnel with

emphasis on social-work and rehabilitative techniques would serve a
useful purpose to improve the efficacy of probation service in India.
Guidelines for the training of Probation officers as have been laid down
in the United Nations Standard Minimum Rules for Non-Custodial
Measures, may be followed to the extent possible.

South Africa, though a developing country makes it necessary that

desired entrants have degrees in criminology, psychology, or social work.
There are also monitoring staff who work parallel to probation officers.
Loans are offered for full and part-time study and short courses. Thus, it
is no excuse that probation may be implemented only in the developed
and rich countries.

 Further an increased investment on correctional services for the poor,

illiterate and unskilled would be most productive not only in reducing
crime but also in improving the quality of life among the strata the come
from and are ultimately to return to. The Kerala Government has
provided for an After Care Programed to rehabilitate probationers. They
are given an assistance up to Rs.10, 000/- per head. By utilizing this
amount, they can engage in small scale income generating activities. The
amount of assistance is. If the amount is insufficient for meeting the
expenses this can be attached with some bank loan. Such services could
be extended to the rest of India.
 Further, this system must be extended to rural courts where there is
general lack of social agencies to undertake the task of rehabilitation of
offenders. Rural delinquents may be more responsive to this correctional
method of treatment than the urban offenders because of their relatively
simple lifestyle. In developing probation and aftercare services it should
be ensured that women and children are specially assisted.