PROBATION AND ITS ANALYSIS

NIRMALA K,

Government Law College, Trichy

ABSTRACT

Probation of Offenders Act 1958 is a Social legislation which helps to ensure the rehabilitation of first time offender. Judges may grant probation only based on circumstances, nature of the offence and character of the offender. While granting probation, age may be considered as one the factors. State Government shall appoint a Probation officer, he helps to rehabilitate the life of those first-time offenders and below twenty-one aged offenders. The report of the probation officer should be kept confidential under this Act. Probation officer protected under this Act and be considered Public Servants under Sec. 21 of the Indian Penal Code 1860. State Government with the approval of the Central Government have power to make rules under this Act. It should not be granted to those offenders who have committed heinous crimes. Probation is not a rights per se, but its a discretion of the court.  

KEYWORDS: Probation, rehabilitation, Probation Officer.

 INTRODUCTION

Generally, the Judiciary has the ultimate power and duty to ensure and render justice, in such a situation, except Pardoning Power of President of India and Governor of each states, Judges ensure the sentencing system in India. Judges may acquit the offender or may punish him by imposing imprisonment or may grant admonition or may grant Probation. While discussing Probation, Judges have power to grant Probation and Judges should be very cautious while granting Probation, because it should not be seen as a wrong moral pious of judges.

WHAT IS PROBATION?

➢  The term Probation is derived from Latin term “Probare” which means “to test” or “to prove”.

➢  The term Probation coined by John Augustus, the “Father of Probation,” is recognized as the first true probation officer. There is no specific or definite definition of the term Probation in Probation of Offenders Act 1958 or in Criminal Procedure Code 1973 or in any other which is in time being in force.

➢ According to Black’s Law Dictionary, ‘probation’ as allowing a person convicted of some minor offence (particularly juvenile offenders) to go at large, under a suspension of sentence, during good behaviour, and generally under the supervision or guardianship of a 'probation officer'.

➢  It is an alternative method of correction through a non-custodial manner. Initially, Section 562 of Criminal procedure Code 1898 speaks about probation and then the Government of India drafted a draft Probation of Wrongdoers Bill in 1931 and circulated it to the then- provincial governments for their input.

➢ On November 18, 1957, a Bill on Probation of Offenders was introduced in the Lok Sabha and on 16th May 1958 came into force. Currently, Section 360 of Criminal Procedure Code 1973 speaks as same as in Sec 562 of Probation of Offenders Act 1898. 

WHY PROBATION IS NEEDED?

Object: The main aim behind the Probation of Offender Act, 1958 is to give an opportunity to offenders to reform themselves rather than turning into hardened criminals. From early 1800 to the present date, probation has tried to reform, remake, remould the offenders into honest, good and law-abiding citizens.

In India, the main legal articulation to the reformatory framework for the probation theory is found in procedural code. As the object of Probation of Offenders Act is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine[i].

Scope: The rehabilitator purpose of the Probation of Offenders Act, 1958, is pervasive enough technically to take within its wings an offence even under the Prevention of Food Adulteration Act.

The kindly application of the probation principle is negatived by the imperatives of social defence and the improbabilities of moral proselytization. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents.

He is a security risk. Secondly, these economic offences committed by white- collar criminals who are unlikely to be dissuaded by the gentle probationary process. Neither casual provocation nor motive against particular persons but planned profit-making from members of consumers furnishes the incentive-not easily humanised by the therapeutic probationary measure.

Musakhan v. State of Maharashtra[ii]---Object of the Probation of Offenders Act observed in this case as it is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminal by providing an educative and reformative treatment to them by the Government.

WHEN PROBATION WILL BE GRANTED?

Probation will not be granted unless the circumstances which is said in Section 360 of Criminal Procedure Code and Section 4 of Probation of Offenders Act.

Sec 360(1) of Criminal procedure Code 1973

➢ if any person not below the age of twenty one years has committed an offence which is punishable for seven years or less then than seven years or fine (or)

➢ if any person below the age of twenty one years or any women has committed an offence which is punishable with more than seven years of imprisonment or life imprisonment or death but not been previously convicted

In such above cases, Court may release the offender on probation, i.e., on promise of good behaviour or good conduct.

Section 4 of Probation of Offenders Act 1958

➢ It speaks about the Power of Court to release certain offenders on probation of good conduct,

◆ If any person found guilty of an offence which is not punishable with imprisonment for life or death penalty and

◆ based on circumstances and nature of offence and character of offender

Court may instead of imposing imprisonment may release the offender on probation of good conduct to keep peace and to be of good behaviour with a support via entering into bond with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years.

➢ Court grant Probation only if it satisfied that the offender or his surety has a fixed place of abode or any regular occupation where court has jurisdiction or where the offender live during such probation period for which he entered into the bond

➢ Before granting Probation, Court shall consider the Report which was submitted by the Probation officer related to that case.

➢ While making such order of release of an offender through probation, if court may thinks fit can additionally pass an order of supervision to direct the offender to remain in the supervision of probation officer, such supervision period should not exceed one year and may also impose some conditions necessary for due supervision of an offender for an interest of an offender and public.

➢ If court order supervision, the offender shall require to enter into bond with or without sureties for imposing of such additional conditions in respect of residence or abstention from intoxicants or to prevent the repeatation of same offence or any other offences or any other matters court may thinks fit.

➢ If court order supervision, such terms and conditions of such supervision order should be explained to the offender and should furnish one copy of such order to offender, sureties and probation officer.

WHAT SHOULD BE CONSIDERED WHILE GRANTING PROBATION?

◆ Probation can be granted based on circumstances, nature of the offence and character of the offender. Section 6 of Probation of Offenders Act 1958 imposes restrictions on imprisonment of offenders under twenty one years of age. The age for the purpose of the Probation of Offenders Act, 1958 has to be reckoned on the date of commission of the offence.

◆ In Ramji Missar v. State of Bihar,[iii] their Lordships of the Supreme Court consisting of four Judges held that the age of the accused be considered at the time of the conviction.

◆ Section 6 of the Probation of Offenders Act lays down an injunction on the Court not to impose a sentence on persons who are below the age of 21 years for the offences punishable with imprisonment but not with imprisonment for life[iv] 

◆ In the case of State of Maharashtra v. Nasimkhan Ahmad Khan Mali Khan, While giving the benefit of Probation of Offenders Act, the Courts are to take into consideration the age or the physical or mental condition of the offenders. So far as the character is concerned, that could have been considered only in the context of what the accused did on the day of occurrence.[v] 

◆ In the case of Mohamed Aziz Mohamed Nasir v. State of Maharashtra[vi], the Supreme Court gave the benefit of Probation of Offenders Act to the accused who was less than twenty-one years of age and was the first offender.

WHO GRANT PROBATION?

Generally, Probation granted by the Judges who has jurisdiction, Section 11 of Probation of Offenders Acct 1958 speaks about the court competent to make order under this Act, appeal and revision and powers of courts in appeal and revision. Appellate Court as also Revisional Court can also grant benefit of probation. Appellate Court in appeal or the High Court in revision can make an order under S. 6(1), Probation of Offenders Act, 1958.7  

PROBATION OFFICER

A probation officer is an official appointed or sworn to investigate, report on, and supervise the conduct of convicted offenders on probation. Probation officers help offenders to rehabilitate and improve themselves. They instruct probationers and ensure that they do not engage in any criminal activity during the probation period. Section 13 of Probation of Offenders Act speaks about the ‘Probation Officer’,

➢ Probation Officer shall be appointed by the State Government or recognised as such by the state government

➢ In some exception, if court thinks fit, can appoint any other person as probation officer in some special circumstances of the case.

➢ Court may pass an order under section 4 of the Act or any District Magistrate in his jurisdiction in which the offender for the time being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order.

➢ Duty of the Probation officer subject to the control of the District Magistrate of the district.

Duties of Probation Officer

Section 14 of Probation of Offenders Act 1958 gives some important duties of Probation officer, which is subject to the conditions and restrictions as prescribed by the court or any District Magistrate,

•        Investigate the circumstances or domestic environment of any person accused of an offence with the intention, in accordance with any direction of the Court, to help the Court to determine and report the most appropriately advised approach to his dealing with it; 

•        Supervising probationers and other persons under his supervision and seeking suitable employment where necessary; 

•        Counselling and supporting victims in the payment by the Court of penalties or costs; 

 

•        Advice and assist persons released pursuant to Section 4 in such situations and manner as may be prescribed;

•        Perform the other duties prescribed as may be. 

A probation agent, as laid down in Section 14 of the Act, has main functions, such as investigation, supervision and guidance, counselling and professional control of criminal probation. As an inspiring, guiding and supporting probationer, this probation officer facilitates the rehabilitation of the criminal as a law-abiding member of society.  

Section 7 of Probation of Offenders Act---Probation Officer have to report about the good conduct of such offender for such cases. Such report should be kept confidential by the Probation officer unless if court thinks fit, can communicate the contents of such report to the such offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in such report.  

Section 15 of the Act---According to this provision, Probation officers to be considered as Public Servants as defined under Section 21 of the indian Penal Code 1860.  

Section 16 of the Act--- This provision provides protection to the Probation officer i.e., no suit or any other legal proceedings should not be instituted against any state government or any probation officer or any other officer appointed under this Act as Probation Officer in respect of anything which is done by him in good faith or intended to be done in pursuance of this Act or of any rules or orders made thereunder.

Section 17 of the Act--- Generally, the State Government, with the approval of the Central Government, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

CONCLUSION

Probation is one of the legally recognized method of rehabilitation, eventhough it is not recognized as matter of right i.e., rights per se. Probation is the discretion of the court, and cannot be granted easily. Probation should be granted after analysing the circumstances, nature of the offence and character of the offender, if the court thinks fit may grant otherwise may reject the probation to such offender i.e., who has committed heinous crimes like rape, etc., cannot be granted probation eventhough such offender below the age of twenty.8 Probation granted to achieve the ultimate pious goal of rehabilitation of offenders and to decrease the crimes count in india.

REFERENCES

1.     Book on Criminal Minor Acts by Justice M.R.Mallick

2.     Lectures on Criminal Procedure by Mr. Kelkar

3.     https://blog.ipleaders.in/probation-officers-and-their-duties-under-the-probation-of- offenders-act/ 

4.     https://www.indiacode.nic.in/bitstream/123456789/15408/1the_probation_of_offenders_act %2C_1958.pdf 

5.     https://www.legalserviceindia.com/legal/article-453-the-probation-of-offenders-act-an- analysis.html

6.     https://legalvidhiya.com/probation-of-offender-act-1958/

[i] Isher Das v. State of Punjab A.I.R. 1972 S.C. 1295: 1973 S.C.C. (Cr.) 708: (1973) 2 S.C.C. 65.

[ii] A.I.R. 1976 S.C. 2566: 1977 S.C.C. (Cr.) 164: (1977) 1 S.C.C. 733.

[iii] A.I.R. 1963 S.C. 1088

[iv] Satyabhan Kishore v. State of Bihar A.I.R. 1972 S.C. 1554: Isher Das v. State of Punjab A.I.R. 1972 S.C. 1295: Jugal Kishore Prasad v. State of Bihar A.I.R.1972 S.C. 2522: Mohamed Aziz Mohamed Nasir v. State of Maharashtra A.I.R. 1976 S.C.730: Masarullah v. State of Tamil Nadu A.I.R. 1983 S.C. 654:

[v] State of Maharashtra v. Nasimkhan Ahmad Khan Mali Khan A.I.R. 1971 S.C. 381:

[vi] Mohamed Aziz Mohamed Nasir v. State of Maharashtra A.I.R. 1976 S.C. 730: 7 Rattan Lal v. State of Punjab A.I.R. 1965 S.C. 444.