SESSION 2021-22

SUBJECT
SENTENCES AND SENTENCING

PROJECT ON
USE OF PAROLE AND PROBATION FOR TREATING OFFENDERS: A
CRITIQUE

SUBMITTED UNDER SUPERVISION; SUBMITTED BY;

Mr. Abhishek Bishnoi Arpit Singhal
FACULTY OF LAW

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 DECLARATION

I declare that the project entitled USE OF PAROLE AND PROBATION FOR TREATING
OFFENDERS: A CRITIQUE is the outcome of my own work conducted under the supervision of Mr.
Abhishek Bishnoi at Jagannath University, Jaipur.
I further declare that to the best of my knowledge the project does not contain any part of any work,
which has been submitted for the award of any degree either in this University or in another University
/ Deemed University without proper citation

Dated: 20/07/22 Arpit Singhal

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 CERTIFICATE OF THE SUPERVISOR
This is to certify that the research work entitled USE OF PAROLE AND PROBATION FOR
TREATING OFFENDERS: A CRITIQUE is the work done by Arpit Singhal under my guidance and
supervision for the Partial fulfillment of the requirement of LLM degree at Jagannath University.

To the best of my Knowledge and belief the project:

1. Embodies the work of the candidate himself;
2. Has been duly completed; and
3. Is up to the standard both in respect of contents and language for being referred to the
examiner.

Mr. Abhishek Bishnoi

Faculty of Law
Supervisor

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 ACKNOWLEDGEMENT

I would like to express profound gratitude to Mr. Abhishek Bishnoi, for his invaluable support,
encouragement, supervision and useful suggestions throughout this research work. His moral support
and continuous guidance enabled me to complete my work successfully. His intellectual thrust and
blessings motivated me to work rigorously on this study. In fact this study could not have seen the
light of the day if his contribution had not been available. It would be no exaggeration to say that it is
his unflinching faith and unquestioning support that has provided the sustenance necessary to see it
through to its present shape.

Among those who have sustained me over the years with their loyalty and friendship, I would
particularly mention my friends Manthan and Ashish have always taken a special interest in my work
and unconditional support at each turn of the life.

I express my deep sincere gratitude towards my parents for their blessing, patience, and moral support
for this project.

Arpit Singhal

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I) PREFACE

Criminal justice is a matter of public policy. Theories of punishment have societal perspectives.
Approbation or reprobation of an act or an omission is reflected in the penal laws. A criminal trial
does not and with a judicial verdict of guilt or innocence. The follow up execution of the sentence,
mercy or clemancy, parole, probation and remission too have multiferious societal dimensions.
Administration of criminal justice presently emphasises on reformation and rehabilitation of the
criminal. Open prison theory is in the air. There is a strong advocacy for reorientation in the age-
old attitude towards the criminal. On the other hand crimes are in rise in aigebrical progression.
Retribution or expiation may no longer influence the prescription of-sanction; but prevention and
deterrence have onee again surfaced as justifications for punishment. Just desert theory has been
mooted to be the most convincing theory of punishment in the present day world.

This publication aims at contributing to filling that information gap. It provides detailed
information on the working of probation and parole on the criminal justice system. This studies
may provide useful insights on how to the provisions of probation and parole should apply for a
convict and the follow up of their sentence

II) SCOPE OF THE STUDY

The scope of the study is to get the first-hand knowledge about the working and effectiveness of
the provisions of parole and probation on the criminal justice system in India and how these
provisions help in reforming a convict.

III) OBJECTIVES OF THE STUDY

The present paper aims at discussing the role of probation and parole in the criminal justice
system and to study The purpose of Probation and Parole and to discuss, their value, and their
effectiveness with regard to deterring crime and to also understand how they have become an
instrument of reformation for a convict.

The objective of the study is to also understand the criteria for getting parole and probation and to
determine the methodology that should be used to ascertain the effectiveness of these instrument
in reforming a criminal.

IV) QUESTIONS OF THE PRESENT RESEARCH: -

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1. To study the refusal to grant probation and parole i.e. what factors determine when a convict
should be eligible for probation or parole?

2. To study the dual role performance of probation and parole officers in criminal judicial system.

3. To study the social adjustment of offenders who are under the supervision of probation and
parole officers.

4. To study the problems of offenders during the period of probation and parole.

5. To Study about the adjustment level of offenders in society.

V) RESEARCH METHODOLOGY:

In the present research paper, the methodology used for determining the questions relating to
probation and parole is doctrinal research methodology since the present research is purely a
theoretical research and Conventional legal sources like reports of committees, legal history,
judicial pronouncements, Acts passed by legislature and parliament etc are used as the sources of
present research

VI) RESEARCH GAP:

In this present research work, many aspects of the probation and parole law could not be
discussed since the researcher has used doctrinal methodology in its study and has mainly relied on
the worksof other authors to prove the effectiveness of these two instruments of reformation.

VII) CHAPTERISATION PLAN

The present paper has been divided in 5 chapters

The 1st chapter basically gives a general introduction as to what are the various kinds of punishment
and also provides for the evolution in the form of punishment and the theories governing these
punishments.

The 2nd chapter exclusively and extensively deals with probation and talks about the origin,
importance, judicial pronouncements relating to probation and also the law of probation in India

The 3rd chapter exclusively and extensively deals with parole and talks about the origin,
importance, judicial pronouncements relating to parole and also the law of parole in India

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The 4th chapter talks about the major differences between parole and probation and strives to make
a comparison between the two.

The 5th and the last chapter act as the conclusion of the present paper and also provides for various
suggestions relating to the law of probation and parole in India.

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 TABLE OF CONTENTS

1. INTRODUCTION ......................................................................... Error! Bookmark not defined.

1.1. Theories of Punishment .............................................................................................................. 7

1.1.1. The Deterrent Theory of Punishment .................................................................................... 7

1.1.2. The Preventive Theory Of Punishment.................................................................................. 8

1.1.3. The Retributive Theory Of Punishment.................................................................................. 8

1.1.4. The Compensation Theory of Punishment ............................................................................ 9

1.1.5. The Reformative Theory of Punishment ................................................................................ 9

2. PROBATION................................................................................................................................... 11

2.1. Origin ........................................................................................................................................ 11

2.2. Probation System ...................................................................................................................... 11

2.3. Importance of Probation in Penology System .......................................................................... 12

2.4. Law of Probation in India ......................................................................................................... 13

2.5.Pre-requisites for probation ...................................................................................................... 14

2.6. Judicial pronouncements on probation in India ...................................................................... 15

3. PAROLE .......................................................................................................................................... 16

3.1. Introduction .............................................................................................................................. 16

3.2. History of parole ....................................................................................................................... 16

3.3. Parole in India, .......................................................................................................................... 17

3.4. Objectives of parole .................................................................................................................. 17

3.5. Selection and Supervision of Offenders Paroled in India ........................................................ 18

3.6. Parole Regulations .................................................................................................................... 19

3.7. Refusal of Parole ....................................................................................................................... 19

3.8. Judicial Position on Parole In the view of Indian judicial system ............................................ 20

4. COMPARISON BETWEEN PAROLE AND PROBATION ..................................................... 22

5. CONCLUSION AND SUGGESTIONS .......................................................................................... 24

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1. INTRODUCTION

‘Hate the crime not the criminals’.

-Mahatma Gandhi

The concept of crime and punishment is as old as man is, and crime cannot be separated from
punishment as crime in itself demands punishment. Since the beginning of social life humanity is
concerned with the aspects crime and punishment.

Punishment, according to the dictionary, involves the infliction of pain or forfeiture, it is the
infliction of a penalty, chastisement or castigation by the judicial arm of the State. But if the sole
purpose of punishment is to cause physical pain to the wrong-doer, it serves little purpose.
However, if punishment is such as makes for it (thus neutralizing the effect of his wrongful act),
it may be said to have achieved its desired effect. A person is said to be "punished" when some
pain or detriment is inflicted on him. This may range from the death penalty to a token fine. Thus,
punishment involves the infliction of pain or forfeiture; it is a judicial visitation with a penalty,
chastisement or castigation. In this book entitled "Criminal Behaviour", Walier Reckless describes
punishment as "the redress that the commonwealth takes against an offending member." In the
words of Westermarck, punishment is "Such suffering as is inflicted upon the offender in a definite
way by, or in the name of the society of which he is permanent or temporary member." Through
with changing times, this concept is also evolving as is evident from the theories that have evolved
for punishment

1.1. Theories of Punishment

The needs of criminal justice are considered to be five, namely:

A. Deterrent B. Preventive C. Reformative D. Retributive E. Compensation

1.1.1. The Deterrent Theory of Punishment it is primarily deterrent when its object is to show
the futility of crime, and thereby teach a lesson to others. Deterrence acts on the motives of the
offenders, whether actual or potential.

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The idea behind deterrent punishment is that of preventing crime, by the infliction of an exemplary
sentence on the offender. By this, the State seeks to create fear in its members, and thus deter them
from committing crime through fear psychology. The rigor of penal discipline is made a terror and
a warning to the offender and others. According to the exponents of this theory, punishment is
meant to prevent the person concerned and other persons from committing, similar offences. The
advocates for the retention of capital punishment rely on this theory in support of their contention.
They argue that capital punishment, by its very nature, cannot have either a reformative value or
be a retributive necessity. Its only value, if at all, is by way of deterrence.

1.1.2. The Preventive Theory Of Punishment If the deterrent theory tries to put an end to the
crime by causing fear of the punishment in the mind of the possible crime-doer, the preventive
theory aims at preventing crime by disabling the criminal, for example, by inflicting the death
penalty on the criminal, or by confining him in prison, or by suspending his driving license, as
the case may be. Thus, the extreme penalty, the death sentence, ensures that, once and for all, the
offender will be prevented from repeating the heinous act. In the past, maiming was considered
an effective method of preventing the wrong-doer from committing 130 the same crime in the
future, by dismembering the offending part of the body. Thus, a thief's hand would be cut off, or
a sexual off. In the ultimate analysis, the preventive

Mode of punishment works in three ways, a) by inspiring all prospective wrong-doers with the
fear of punishment; b) by disabling the wrong-doer from immediately committing any crime; and
c) by transforming the offender, by a process of reformation and reeducation, so that he would not
commit crime again. In this connection, the following extract from Rule 58 of the International
Standard Minimum Rules is illuminative: "The purpose and justification of a sentence of
imprisonment or a similar measure derivative of liberty is ultimately to protect society against
crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as
possible, that upon his return to society, the offender is not only willing, but also able, to lead a
law –abiding and self-supporting life."

1.1.3. The Retributive Theory of Punishment While discussing the history of the administration
of justice, it was seen that punishment by the State is a substitute for private vengeance. In all
healthy communities, any crime or injustice stirs up the retributive indignation of the people at
large. Retribution basically means that the wrongdoer pays for his wrongdoing, since a person

10
who is wronged would like to avenge himself, the State considers it necessary to inflict some
pain or injury on the wrongdoer in order to otherwise prevent private vengeance. Whereas other
theories regard punishment as a means to some other end the retributive theory looks on it as an
end in itself. It regards it as perfectly legitimate that evil should be returned for evil, and that a
man should be dealt with the manner in which he deals with others. An eye for an eye and a
tooth for a tooth is deemed to be the rule of natural justice.

1.1.4. The Compensation Theory of Punishment According to this theory, the object of
punishment must not be merely to prevent further crimes, but also to compensate the victim of
the crime. This theory further believes that the main-spring of criminality is great and if the
offender is made to return the ill-gotten benefits of the crime, the spring of criminality would be
dried up. Though there is considerable truth is this theory, it must be pointed out that this theory
tends to over-simply the motives of a crime. The motive of a crime is not always economic.
Offences against the state, against justice, against-religion, against marriage, and even against
persons, may not always be actuated by economic motives. There may be other complicated
motives involved. In such cases, the theory of compensation may be neither workable nor
effective. Quite often, even in the case of offences actuated by such motives, the economic
condition of the offender may be such that compensation may not be available. Therefore, this
theory can at best, play a subordinate role in the framing of a Penal Code.

1.1.5. The Reformative Theory of Punishment According to the reformative theory, a crime is
committed as a result of the conflict between the character and the motive of the criminal. One
may commit a crime either because the temptation of the motive is stronger or because the
restraint imposed by character is weaker. The deterrent theory, by showing that crime never
pays, seeks to act on the motive of the person, while the reformative theory aims at strengthening
the character of the main, so that he may not become an easy victim to his own temptation. This
theory would consider punishment to be curative or to perform the function of a medicine.
According to this theory, crime is like a disease. This theory maintains that "you cannot cure by
killing". The exponents of the reformative theory believe that a wrong-doers stay in prison
should serve to re-educate him and to re-shape his personality in a new mould. They believe that
though punishment may be severe, it should never be degrading. To the followers of this theory,
execution, solitary confinement and maiming are relics of the past and enemies of reformation.

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Thus, the ultimate aim of the reformists is to try to bring about a change in the personality and
character of the offender, so as to make him a useful member of society

While studying criminology and causation of crimes, it has been observed that theorist have
shifted their studies from crimes to criminals i.e. what are conditions factors which turn a man
into the world of crimes and the possibilities of returning that man from the world of crimes to
the social world. The thought process of removing crimes from a criminals and ensuring that the
criminals can be reintegrated into the society gave birth to concept of reformation of the
criminals.

In modern age we believe in reformative method of criminal justice system. We know very well
criminals are not born but circumstances turns them So many jurist think criminals can make
reform and have opinion if criminals find proper treatment without any hard punishment they can
improve their attitude towards the society. There are many instruments of reformation including

 Probation
 Parole
 Indeterminate Sentence
 Admonition
 Pardon

In the present paper stress is particularly given on probation and parole as an instrument of
reformation

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2. PROBATION

2.1. Origin

Probation and parole emerged as techniques to initiate consequence of severe punishment when
imprisonment became the more common mode of penal sanction in place of transportation and
capital punishment1

The term Probation is derived from the Latin word probare, which means to test or to prove. It is
a treatment device, developed as a non-custodial alternative which is used by the magistracy where
guilt is established but it is considered that imposing of a prison sentence would do no good.
Imprisonment decreases his capacity to readjust to the normal society after the release and
association with professional delinquents often has undesired effects.

Probation as it is known today can be traced to the use of several judicial practices exercised in
English and later, American courts. "Release on recognizance" or bail, for example, allowed
defendants who agreed to certain conditions of release to return to the community to await trial.
After setting bail, judges sometimes failed to take further action .Thus, similar to modern-day
probation, defendants were released to the community conditionally. If they failed to meet the
condition of release, they were faced with the threat of revocation. And in some instances, they
were spared further contact with the criminal justice system.

2.2. Probation System

The essence of the system is:

1. That the offenders, instead of being find or sentenced to imprisonment or bound over, is placed
on probation, that is to say, a probation order is made by the Court and the probationer undertakes
to be bound by it by entering into a recognizance, with or without sureties.

2. The order may provide the probationer shall be under the supervision of a probation officer for
a special period, and it may stipulate certain conditions to be observed by the probationer, for
example, as to residence, abstention from intoxicating liquor, and the like.

1
Ahmed Siddiques, Criminology Problems And Prospective, Eastern Book Company, New Delhi, 2011.

13
3. The order can only produce beneficial results with the voluntary co-operation of the
probationer.2

2.3. Importance of Probation in Penology System

Probation as a correctional measure occupies an important place in reformative justice. It seeks to
reconcile the conflicting claims of "punitive" and "treatment" reactions to crime. 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. Probation is useful to society in general and to offender in particular. It also enables
the probation officer in getting deeper insight of the problem of criminals. It also enables the
probation officer in getting deeper insight of problem of criminals. It would, therefore, be
convenient to assess the utility of probation as a punitive reaction to crime under the following
heads:3

I) Utility of probation from the point of view of the delinquent:

The system of probation helps the delinquent in rehabilitating himself as a law abiding member of
society. It serves the needs of the probationer in the following manner: 1. Probation keeps the
offender away from the criminal world. If the delinquent is set at liberty without adequate guidance
and supervision, he is inclined to feel that his delinquent conduct has been accepted by society and
thus he will continue his criminal activities unfettered. 2. The fear of punishment in case of
violation of probation law has a psychological effect of the offender. It deters him from law-
breaking during the period of probation. Thus probation indirectly prevents an offender from
adopting a revengeful attitude towards the society.3 Probation seeks to obviate the evils of
institutional incarceration and thus prevents the offender from contamination and conforming to a
criminal career. Moreover, sentencing an offender to a term of imprisonment carries with it a
stigma which makes his rehabilitation in society difficult. The release of the offender on probation
saves him from stigmatization and thus prepares him for an upright living. 4. Probation seeks to
socialize the criminal as the liberty which he enjoys during the probation period enables him to
pick up those life-habits which are necessary for a law-abiding member of the community. 5.

2
Ibid.
3
Dr. N.V. Paranjpe, Criminology And Penology, Central Law Publication, New Delhi, 2015.

12
Probation enables the offender to attend to his domestic obligations and thus contribute to support
his family financially by taking up suitable work according to his capability. 6. Probation enables
the offender to rehabilitate himself through his self-control and self-confidence in him which are
undoubtedly the essential attributes of a free-life. 7. Before the implementation of probation law,
the courts were often confronted with the problem disposing of the cases of persons who were
charged with neglect of their family. In such cases there was no alternative but to send them to
prison which was an unnecessary burden on the State exchequer. With the introduction of
probation as a method of reformative justice, the courts now admit such offenders to probation
where they are handled by the competent probation officers who impress upon them the need to
work industriously and avoid shirking their family responsibilities.

II Utility of probation from the stand-point of Society:

Besides the delinquent, probation also serves a useful purpose for the society as a whole: 4 1. It is
well known that the interest of society are best served when all its members play a positive role by
seeking their self-rehabilitation. Since this object is fully achieved by the probation system, it is
indeed an effective method of preserving social solidarity by keeping the law-breakers well under
control. 2. During the probation period, the offender is sent to various educational, vocational and
industrial institutions where he is trained for a profession which may help him in securing a
livelihood for himself after he is finally released and thus leads an absolutely upright life. 3.
Whatever work an offender is doing as a probationer, he is contributing to the national economy.
Thus, he no longer remains a burden on society.

2.4. Law of Probation in India

Section S.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. It reads as follows:-

When any person not under twenty-one years of age is convicted of an offence punishable with fine
only or with imprisonment for a term of seven years or less, or when any person under twenty-one
years of age or any woman is convicted of an offence not punishable with death or imprisonment

4
Dr. N.V. Paranjpe, Criminology And Penology, Central Law Publication, New Delhi, 2015.

13
for life, and no previous conviction is proved against the offender, if it appears to the Court before
which he is convicted, regard being had to the age, character or antecedents of the offender, and
to the circumstances in which the offence was committed, that it is expedient that the offender
should be released on probation of good conduct, the Court may, instead of sentencing him at once
to any punishment, direct that he be released on his entering into a bond, with or without sureties,
to appear and receive sentence when called upon during such period (not exceeding three years)
as the Court may direct and in the meantime to keep the peace and be of good behaviour.

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.

Conditions for getting probation

2.5. Pre-requisites for probation:

Conditions to be satisfied for application of Section 4

(1) The offence committed must not be one punishable with death or imprisonment for life .

(2) The court must opine that it is expedient to release him on probation of good conduct instead
of sentencing him to any punishment and

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

Relevant factors to be taken into consideration. The convicts have no indefensible right to be
released .The right is only to be considered for release on license in terms of the Act and the rules.
The probation Board and the State Government are required to take into consideration the relevant
factors before deciding or declining to release a convict.

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2.6. Judicial pronouncements on probation in India 5

Rattan Lal v. State of Punjab,6 it was observed that

Objective of the institutional treatment through probation is to correct the effects of the causative
factors of criminality in the controlled atmosphere of probationary supervision, ulitising the
helpful factors in the offender's personality, his family situation, attitude etc. This approach helps
the probationer to restructure his life-pattern with renewed vigour and adjust himself in the
community through healthy inter-personal relationships. The Indian probation law provides the
judicial power should be solely vested in the judiciary. The reason being that if the power of
probation is delegated to extra-judicial agencies which lack judicial techniques, it would create
serious problems as these agencies will be guided by their own value considerations. That apart,
sociologists and psychologists would be concerned only with the problem of offender's reformation
and would not be able to appreciate the legal implications of reformative measures.

In the case of Ramji Missar v. State of Bihar, 7 the Supreme Court observed that the object of the
Act, 1958 is to prevent the turning of youthful offenders into criminals by their association with
hardened criminals of mature age within the walls of a prison. The method adopted is to attempt
their possible reformation instead of inflicting on them the normal punishment for their crimes. It
is clear from the case of Chhanni v. State of U.P. 8, in which the Supreme Court held that the
enforcement Probation of Offenders Act, 1958 in particular area excludes the applicability of
provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of Section 4 of
the Probation of Offenders Act is much wider than Section 360 of the Code of Criminal Procedure
which relates only to persons not under the age of 21 years, convicted for offences punishable with
fine only or with imprisonment up to 7 years, and any woman convicted of an offence not
punishable with death or imprisonment for life .

5
Ibid.
6
Rattan Lal v State of Punjab A.I.R. 1965 S.C. 444.
7
Ramji Missar v State of Bihar AIR 1963 SC 1088.
8
Chhanni v State of U.P AIR 2006 SC 3051.

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3. PAROLE

3.1. Introduction

The conditional release of a person convicted of a crime prior to the expiration of that person's
term of imprisonment, subject to both the supervision of the correctional authorities during the
remainder of the term and a resumption of the imprisonment upon violation of the conditions
imposed. Release on parole is a wing of the reformative process and is expected to provide
opportunity to the prisoner to transform and change himself into a useful citizen

Parole is the early supervised release of a prison inmate. It is usually regulated by statutes, and
these provisions vary from state to state. Parole boards created by statute possess the authority to
release prisoners from incarceration. Parolees have no constitutional right to representation in
parole hearings and parole revocation hearings, but many states provide representation to
impoverished inmates and parolees in such hearings.

3.2. History of parole

Parole comes from the French word parole, referring to "word" as in “giving one's word of honor
or promise”. It has come to mean an inmate's promise to conduct him or herself in a law-abiding
manner and according to certain rules in exchange for release. In penal philosophy, parole is part
of the general 19th-century trend in criminology from punishment to reformation. Chief credit for
developing the early parole system is usually given to Alexander Maconochie, who was in charge
of the English penal colony at Norfolk Island, 1,000 miles off the coast of Australia, and to Sir
Walter Crofton, who directed Ireland's prisons

Maconochie criticized definite prison terms and developed a system of rewards for good conduct,
labor and study. Through a classification procedure he called the mark system, prisoners could
progress through stages of increasing responsibility and ultimately gain freedom. In 1840, he was
given an opportunity to apply these principles as superintendent of the Norfolk Island penal
settlement in the South Pacific. Under his direction, task accomplishment, not time served, was
the criterion for release. Marks of commendation were given to prisoners who performed their
tasks well, and they were released from the penal colony as they demonstrated willingness to
accept society's rules. Returning to England in 1844 to campaign for penal reform, Maconochie

16
tried to implement his reforms when he was appointed governor of the new Birmingham Prison in
1849. However, he was unable to institute his reforms there because he was dismissed from his
position in 1851 on the grounds that his methods were too lenient

3.3. Parole in India

The history of parole has been discussed at length by the Hon’ble Supreme Court in Poonam Lata’s
case where it is mentioned that “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 license, 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 or 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

3.4. Objectives of parole

In the absence of any specific provision in the code of criminal procedure regarding parole,
judgments of the Hon’ble Supreme Court, various high courts as well as the rules framed in various
states, regulating the grant of parole has led to the development of parole system in India. People
has now become an integral part of criminal justice system in India.

The division bench of the Hon’ble high court of Delhi in Shakuntala Devi v state9 has emphasized
that under our constitution, deprivation of personal liberty as penal policy is purposive because the
imprisonment of the criminal is sanctioned as a measure of social defense and individual

9
Shakuntala Devi v state (1996) 36 DRJ 545.

17
rehabilitation. The focus of interest in penology is the individual and the goal is salvaging him for
society. Time and again the apex court has held that all aspects of criminal justice fall under the
umbrella of article 14, 19, and 21 of the constitution. Further the apex court has sought to humanize
prison administration to some extent through its various pronouncements and it has also laid great
emphasis on the right of a prisoner to the integrity of his physical person and mental personality.
The apex court views sentencing as a process of reshaping a person who has deteriorated into
criminality and the modern community has a primary stake in the rehabilitation of the offender as
a measure of social change

In Poonam Lata v M.L. Wadhawan & Ors 10 it has been held by the Apex Court that the Release
on parole is a wing of reformative process and is expected to provide opportunity to the prisoner
to transform himself into a useful citizen. Further in Inder Singh v. State11 the Apex Court has held
that if the behavior of these two prisoners shows responsibility and trustworthiness, liberal though
cautious, parole will be allowed to them so that their family ties may be maintained and inner
tensions may not further build up. After every period of one year, they should be enlarged on
parole for two months

In view of the aforesaid, it is evident that the main objective and purpose of granting parole is to
the rehabilitate the prisoners and to provide them an opportunity to reform themselves into a better
human being, to allow them to develop a positive attitude and interest in life and also to provide
them with an opportunity to maintain their social ties

3.5. Selection and Supervision of Offenders Paroled in India

The grant of Parole is largely governed by the rules made under the Prison Act, 1894 and Prisoner
Act, 1900. Each of the States has its own parole rules, which have minor variations with each
other. There are two types of parole- custody and regular. The custody parole is granted in
emergency circumstances like death in the family, serious illness or marriage in the family Regular
Parole is allowed for a maximum period of one month, except in special circumstances, to convicts
who have served at least one year in prison. It is granted on certain grounds12such as: Serious

10
Poonam Lata v M.L. Wadhawan & Ors 1987 SCR (2)1123
11
Inder Singh v State A.I.R. 1978 SC 1091
12
Ibid.

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Illness of a family member Accident or Death of a family member Marriage of a member of the
family Delivery of Child by wife of the convict Maintain family or social ties Serious damage to
life or property of the family of convict by natural calamities Pursue filing of a Special Leave
Petition. Certain categories of convicts are of convicts are not eligible for being released on parole
like prisoners involved in offences against the State, or threats to national security, non-citizens of
India etc. People convicted of murder and rape of children or multiple murders etc. are also
exempted except at the discretion of the granting authority. Selection for parole is based on two
separate considerations. First one, more or less arbitrary because it is usually fixed by statute. The
second entirely discretionary involving a decision and a calculated risk by the parole board. The
First consideration is the offender's parole eligibility, the second his suitability for parole. To these
considerations which are explicit, there may be added others which are no less decisive because
they are less tangible. Parole cannot be granted to every type of offender. The purpose of parole is
to bring about a change in the behavior of the person sentenced and also at extraordinary
circumstances such as serious illness or death of near relatives, death of the kith and kin and so
forth. The offender paroled has to be kept under close surveillance by the police so that he does
not relapse into the commission of crime. Even though the paroled offender is not in physical
confinement, for all practical purposes he is a person sentenced and every of his movement of him
has to be closely monitored so that his associations and his activities which perpetrate crime can
be mitigated.

3.6. Parole Regulations

1) The paroled person should hold the permit always and should produce on being tendered by
any police officer or magistrate or any other competent authority. 2) He shall not associate with
notorious bad characters, ruffians and anti-social elements. 3) He shall not indulge in coercing any
of the witnesses or complainant to adduce evidence in his favor. 4) He shall report any charge in
the address or his movement and leaving the locality or jurisdiction which is specifically prescribed
in his behalf. 5) He shall also obey all laws and public ordinances. 6) He shall not indulge in
alcoholism, intoxicating beverages and narcotics.

3.7. Refusal of Parole

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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 a grant of partial liberty of lessening
of restrictions to a convict prisoner. The Code of Criminal Procedure does not contain any
provision for grant of parole. By administrative instructions, rules have been framed in various
States, regulating the grant of parole. Parole Rules or administrative instructions, framed by the
Government are purely administrative in character and for securing release on parole, a convict
has, to approach the Government concerned or the jail authorities. In most cases, the executive
acts in a mere mechanical manner, without application of mind and appreciation of facts. They
reject parole on grounds like breach of peace or the possibility of the prisoner committing a crime
during the parole period,

The criteria for probable refusal of parole, laid down by Supreme Court are as follows: i) A
reasonable apprehension, based upon material available with the Government that the petitioner,
if released on bail may not return back to Jail to undergo the remaining portion of the sentence
awarded to him; ii) A serious apprehension of breach of law and order or commission of another
offence by the petitioner if he comes out on parole; iii) Past conduct of the petitioner such as
jumping the bail or parole granted earlier to him; iv) A reasonable possibility of the petitioner
trying to intimidate or harm those who have deposed against him or their relatives. The Court
emphasized that it is neither possible nor desirable to exhaustively lay down all such grounds as
would justify denial of parole in a particular case. Each case has to be examined by the Government
dispassionately and with an open mind,13

3.8. Judicial Position on Parole In the view of Indian judicial system

Parole is claimed to be a success in rehabilitation and checking crime attitude. Parole has been
defined by Hon. Court as a conditional release of a prisoner, generally under supervision of a
parole officer, who has served part of the term for which he was sentenced to prison. Parole relates
to executive action taken after the door has been closed on a convict.14 During parole period there
is no suspension of sentence but the sentence is actually continuing to run during that period also.15
Hon. court remarked that it is not out of place to mention that if the State takes up a flexible attitude

13
Supra see note 10
14
Mohinder Singh v State of Haryana, [2000] 2 SCC 342.
15
Sunil Fulchandshah v Union of India, [2001] 7 SCC 821.

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it may be possible to permit long spells of parole, under controlled conditions, so that fear that the
full freedom if bailed out, might be abused may be eliminated by this experimental measure,
punctuated by reversion to prison. Unremitting insulation in the harsh and hardened company of
prisoners leads to many unmentionable vices that humanizing interludes of parole are part of the
compassionate constitutionalism of our system16 The Court opined that persons kept incarcerated
and embittered without trial should be given some chance to reform themselves by reasonable
recourse to the parole power, calculated risks, by release for short periods may, perhaps, be a social
gain, the beneficent jurisdiction being wisely exercised. In Inder Singh v The State of Delhi
Administration17 the Court has emphasized on the need for liberal use of parole even in the case
of heinous crimes.

16
Babu Singh and Ors. v State of U.P 1978 AIR 527.
17
Inder Singh v The State of Delhi Administration 1978 SCR (3) 393.

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4. COMPARISON BETWEEN PAROLE AND PROBATION

The functions of the probation and parole process tend to be very similar. Both are concerned with
a defendant breaking the bad habits or behaviors that caused them to break the law. Even though
both probation and parole have a strong rehabilitation component, each process has the additional
goal of protecting the community. But there is some differences also be found between parole and
probation. The fundamental points of difference between parole and probation are noted blow:- 18

I. Probation came into existence to save some selected types of person from the rigors of
punishment even if found guilty by a court of law - Parole on the other hand developed due to
number of factors, operating independently of each other. Before transportation as a mode of
punishment came to an end.

II. Although parole like probation is based on the principle of individualization of treatment of
offenders and both include a programme of guidance and assistance to the delinquents, yet the two
differ in many aspects. The fundamental points to difference between parole and probation are
noted below: 1. as to their historical evolution, the system of probation owes its origin to John
Augustus of Boston (U.S.A.) who around 1841, tried to convince the Judge of the Magistrate's
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 much later somewhere around 1900.

III. 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 offender to a
certain period of imprisonment and a 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 to a
prisoner when he has already lived in prisons or a similar institution for a certain minimum period
and has shown propensity for good behavior

IV. It has been alluded by J.L. Gillin that probation is probably the first stage of correctional
scheme, the parole being the last stage of it.

18
Supra, see note 4.

22
V. Probation and parole also differ from each other from the point of view of stigma or
disqualification attached to an offender who is released on probation of good conduct, but a
prisoner released on parole suffers stigmatization as a convicted criminal in the society.

VI. As rightly pointed out by Dr. Sutherland, a probationer is considered as if undergoing

"treatment" while he is under the 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 from which he has been
released.

VII. Another notable distinction between probation and parole is that former is a judicial function
while the latter is essentially 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 prisoner to the community prior to
expiration of his term of sentence subject to conditions imposed by the Parole Board. Thus, the
release of a parolee is not the result of a judicial decision.

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5. CONCLUSION AND SUGGESTIONS

We need to incorporate that age-old concept of redemption into the work that we do in the
criminal justice system in California.

-Kamala Harris

The concept of crime and punishment is as old as man is, and crime cannot be separated from
punishment as crime in itself demands punishment. Since the beginning of social life humanity is
concerned with the aspects crime and punishment.

The earlier penological approach held imprisonment, that is, custodial measures to be the only way
to curb crime. But the modern penological approach has ushered in new forms of sentencing
whereby the needs of the community are balanced with the best interests of the accused. While
studying criminology and causation of crimes, it has been observed that theorist have shifted their
studies from crimes to criminals i.e. what are conditions factors which turn a man into the world
of crimes and the possibilities of returning that man from the world of crimes to the social world.
The thought process of removing crimes from a criminals and ensuring that the criminals can be
reintegrated into the society gave birth to concept of reformation of the criminals.
Probation and parole emerged as techniques/instrument to initiate consequence of severe
punishment when imprisonment became the more common mode of penal sanction in place of
transportation and capital punishment.19

The success of probation and parole is entirely in the hands of the State Government and the
resources it allots to the programmers. Resources are needed to employ trained probation and
parole officers and also for their training besides others. Thus while concluding it can be said that
the concept of Probation and parole 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 and parole 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

19
Supra, see note 1.

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human inside a person. Probation and parole is an affirmation of the human inside every being and
it must be given due importance.

According to researcher opinion, the following suggestions may serve a useful purpose

The success of probation and parole as a non-institutional therapeutic measure would mainly
depend on its cautious extension and judicious adaptation to adults. A well-organized team of
trained probation personnel having aptitude and real zeal for this kind of work and active co-
operation of various agencies such as welfare boards, voluntary social workers and correctional
institutions can certainly make probation a real success in India. It should, however, be
remembered that mere letting off by the courts to keep convicted persons out of penal institutions
would into serve any useful purpose unless adequate alternatives for those who need a measure of
restraint for their own reformation an also for the security of the public are embodied in the scheme.
The reform and rehabilitation processes have to be worked out in context of existing social
conditions and for the benefit or the society as a whole. If reformation in fact benefits the society,
the conscience of social justice would be satisfied. But if the reformation confines to the benefit
of the individual offender alone, social justice shall remain suffocated. This sound note of warning
should be the guiding theme of probation and parole scheme which is essentially a part of
reformative justice. Due importance must be given to the reports of the probation and parole
officers.The prediction Tables/ opinion polls of research should be compiled and used for planning
probation strategies. Such tables may help in anticipating the probable result of correctional
treatment on different offenders. Prediction Tables/ opinion polls are being extensively used in the
treatment of probationers in Madhya Pradesh and they have proved immensely helpful in
estimation of offender's personality for individualized treatment.

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