useful judgment of probation of offender act

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JUDICIAL PRONOUNCEMENT

USEFUL JUDGMENTS

&

STUDY ON PROBATION OF

OFFENDER ACT

&

CR.P.C SECTION – 360

ARJUN P RANDHIR

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SUBJECT INDEX

SR

INDEX

PAGE

1 AIM & OBJECT OF PROBATION ACT 3

2 WHY IS THE REPORT OF THE PROBATION OFFICER

NECESSARY ?

4

3 CALLING FOR REPORT FROM PROBATION

OFFICER

5

4 SECTION 360 AND SECTION 4 OF PROBATION OF

OFFENDERS ACT :

7

5 PROCEDURE WHEN THE OFFENDER BREACH THE

CONDITIONS OF PROBATION :

8

6 RELEASE AFTER ADMONITION : 9

7 JUDICIAL PRONOUNCEMENT OF PROBATION OF

OFFENDERS ACT:

10

8 PROBABLE CONDITION CAN BE IMPOSE ON

ACCUSED:

17

9 SUGGESTION 18

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1. AIM & OBJECT OF PROBATION ACT

Mahatma Gandhi once said, "Hate the crime not the

criminal". This means that we need to eliminate crime and

eliminating criminals is not the way to do it. 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, especially 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 being in conflict 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.

One way to counter this problem is to provide opportunities

and guidance to young and first time offenders instead of

committing them to jails. The idea behind such treatment is that,

normally, human beings do not resort to crime unless they are

forced due exceptional circumstances. If we want to reduce crime,

we should make sure that chance criminals are given an

opportunity to get reformed instead of turning into hardened

criminals. This is the aim behind Probation of Offender's Act, 1958.

It allows the court to take into account 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.

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The object of probation is intended to be used to prevent

young persons from being committed to jail, where they may

associate with hardened criminals, who may lead them further

along the path of crime, and to help even men of mature years

who for the first time may have committed crimes through

ignorance or inadvertence or the bad influence of others and who,

but for such lapses, might be expected to make good citizens. In

such cases, a term of imprisonment may have the very opposite

effect to that for which it was intended. Such persons would be

sufficiently punished by the shame of having committed a crime

and by the mental agony and disgrace that a trial in a criminal

court would involve.

It must, however, be kept in mind that reformation does not

always work. Some crimes are so abhorrent and some criminals

are so unrepentant that it is best to punish them so that the price of

committing the crime keeps them from committing it again. For

some of them, there is no hope for reform, and it is best to protect

the society from them by locking them away for life.

2. WHY IS THE REPORT OF THE PROBATION OFFICER

NECESSARY ?

During the process of trial, the magistrate is concerned with the

alleged suit of offender. Apparently, the magistrate does not know

about the personality, circumstances or capacity of the offender for

future adjustment. It is after receipt of the report from P.O. that the

real portrait of the offender can be known to the Magistrate.

Therefore, report from the P.O. is absolutely necessary so as to

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make a suitable disposition of the case. When there is machinery

of probation system available to assist the court, while dealing with

the offender u/s 3 or 4, there seems no reason for not utilizing the

services rendered by the Probation Officer. The P.O. is in a better

position to know about the character and antecedents of the

accused, otherwise, this important material would not have been

available to the court. In appropriate cases, the P.O. will be able to

solve the problem of the offender placed under supervision by the

court and intensive help or services be rendered to rehabilitate him

so that he would become a useful citizen of society. He would

prove as an asset instead of liability to society. This is only

possible if courts take keen interest in the probation system. In

case of breach of condition by the offender released under

supervision of the Probation Officer, it can be communicated to the

concerned court, so that further action can be taken by the court.

But in case the court releases the offender on probation without

calling report from P.O., it is difficult to know if he committed the

breach of conditions of the bond. Though calling of a report from

the P.O. u/s 4(1) of the Act is not a condition precedent, for making

an order u/s 4(1) of the P.O. Act, it is very essential that such a

report should ordinarily be called from the P.O. Calling for a report

from the P.O. is therefore absolutely in the interest of the offender

and the society, and the same should be considered by the court

before it releases the offender on probation of good conduct.

Releasing the offender on probation without proper enquiry as

regards the character and antecedents of the accused would be

exposing the society to the risk of the offender repeating the

unlawful act and bring the whole scheme of probation into

discredit. The P.O. is an important officer in the machinery of

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implementation of the Act. The post is created to assist the courts

in the matter of probation. There is, therefore no reason why his

services should not be availed of before the order of probation is

passed. It is essential that his services be utilized, otherwise

important material relevant to be considered will not be available to

the court at all. It is therefore very essential that the courts should

not, in order to hasten the disposal of the cases, be inclined to

dispense with the calling for a report and give the benefit of

Section 4 to the accused, without there being sufficient material on

record before them. State of Maharashtra V/s Bodya Ramji Patil

(1978), Cr.L.J. 411.

3. CALLING FOR REPORT FROM PROBATION OFFICER:

1. Gouranga Charan Bhol V/s State of Orissa, it was laid down

that in absence of a report from the P.O., the court has no

authority to release the accused on probation. This view is

supported by Mysore High Court in the case of State of Mysore

V/s Saib Gunda (1964) Cr. L.J. 460.

2. Ramsingh V/s. State of Haryana 1971 (3) SCC - 914 Section 4

and 6 of the Act indicate the procedure requiring the court to call

for a report and from the P.O. and consideration of a report and

any other information available relating to character and physical

and mental condition of the offender. These facts are of primary

importance before the court can pass an order under the P.O. Act

3. Rattanlal V/s. State of Punjab A.I.R. 1965 SC 444 "The word

'shall' makes it a mandatory condition and the expression 'if any'

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can in the context only cover a case where not withstanding such

requisition, the P.O. for one reason or the other has not submitted

a report. "The report from me P.O. is a condition precedent for the

exercise of the power under Sec. 6(1) of the Act by the Court".

4. In the Goa Case State V/s, Vagush A.I.R. 1970 Goa 49, It was

held that the language of Section 4(2) manifests that the calling for

report of the P.O. is mandatory and without considering the report

of the P.O., no order under sub-section (1) can be made. Unless

and until the report is called for, me question of consideration of

the report will arise .

4. SECTION 360 AND SECTION 4 OF PROBATION OF

OFFENDERS ACT :

As per Section 19, in the states where Probation of

Offenders Act is enacted, Section 360 of CrPC shall cease to

apply. Thus, it is clear that Section 4 of Probation of Offenders Act

has overriding effect. Section 360 of CrPC - Order to release on

probation of good conduct or after admonition :--(1)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 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

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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 behavior.

5. PROCEDURE WHEN THE OFFENDER BREACH THE

CONDITIONS OF PROBATION :

As per Section 9, if the court which passes an order under

section 4 in respect of an offender or any court which could have

dealt with the offender in respect of his original offence has reason

to believe, on the report of a probation officer or otherwise, that the

offender has failed to observe any of the conditions of the bond or

bonds entered into by him, it may issue a warrant for his arrest or

may, if it thinks fit, issue a summons to him and his sureties, if any,

requiring him or them to attend before it at such time as may be

specified in the summons. The court before which an offender is

so brought or appears may either remand him to custody until the

case is concluded or it may grant him bail, with or without surety,

to appear on the date which it may fix for hearing.

If the court, after hearing the case, is satisfied that the

offender has failed to observe any of the conditions of the bond or

bonds entered into by him, it may forthwith(a)sentence him for the

original offence; or (b) where the failure is for the first time, then,

without rejudice to the continuance in force of the bond, impose

upon him a penalty not exceeding fifty rupees.(4) If a penalty

imposed under clause (b) of sub-section (3) is not paid within such

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period as the court may fix, the court may sentence the offender

for the original offence. It is important to note that the sentencing in

respect of which the probation is given is merely suspended when

the offender is released on probation under Section 4. Thus, if any

condition of the probation is violated, the court may sentence the

offender for the original offence without conducting a fresh trial.

6. RELEASE AFTER ADMONITION :

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 admonition.

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 if the offence is punishable

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under any of the Sections 379, 380, 381, 404, and 420.

2. The offender does not have any prior convictions.

7. JUDICIAL PRONOUNCEMENT OF PROBATION OF

OFFENDERS ACT:

(1) 1991 CRLJ P.294 Sayed Salim V/s. M.J. Simon. - Probation

of offenders Act, S.3 – Benefit under – Police officials, accused,

illegally confining and torturing complainant for not admitting

offence – Accused convicted but released after due admonition

u/s.3 – Not proper.

(2) 1995 CRLJ P.2738 (P&H) Nazir Singh V/s. State of Punjab

Probation of Offenders Act, S.4 – Benefit of probation –

Cannot be granted by merely relying on other precedents –

Accused aged about 30 years found guilty of offence u/s.9 of

opium Act – Not entitled to benefit of probation.

(3) 1995 CRLJ P.3522 (Patna) Shivnath Ram V/s. State of

Bihar. Probation of Offenders Act, Ss.12, 3 & 4 – Release on

probation – Effect – Convict, a Govt. employee – His conviction

precludes Govt. form dismissing him from service – They may,

however, take disciplinary action on such conviction and award

such punishment as would not disqualify him to any appointment in

future.

(4) 1998 CRLJ P.675 (SC) (MAD) - Probation of Offenders Act,

S.4 – Benefit of probation – Grant of – Appeal – Complaint against

accused for offence of cheating – Accused without having any

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academic qualification practicing as an Advocate for long period of

8 years – Character of accused reflects in modality in which he

was inveigling in noble profession duping everybody concerned –

Crime committed by him should be dealt with deterrent – Order

releasing him on probation, set aside – Accused sentenced on

each count u/s.419 and 420, IPC for six months R.I. and fine of

Rs.5,000/- on each count.

(5) 1998 CRLJ P.1107 (SC) (P&H) - Probation of Offenders Act,

S.12(1), 4 – Removal of disqualification attaching to

conviction – Words "disqualification, if any attaching to conviction

of an offence under such law" occurring in S.12 – Meaning of –

Govt. servant convicted for offence under IPC but released on

probation u/s.4 – Conviction can be taken into account for

removing him from service. - Industrial Disputes Act, 1947,

Sch.2, Item.3.

(6) 1998 CRLJ P.2160 (Guj) - Probation of Offenders Act, S.4 -

Benefit of probation – Granted by Trial Court – Offenders of

Control Order under Essential Commodities Act – Matter

pending for almost 10 years – No possibility of repeating offence

under said Act, as Offender closed the shop – Extension of benefit

of probation u/s.4 – Not illegal – Lapse to call for report of

probation officer can be overlooked.

(7) 1985 CRLJ P.1882 (Kerala) Smt. Mani V/s. State of Kerala.

Kerala Police Act, 1952, S.47 – Offence under – Allegations not

constituting offence – Conviction by Magistrate without following

provisions of S.252, CrPC and without extending provisions of

Probation of Offenders Act – Conviction is liable to

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be set aside. - Probation of Offenders Act, 1958, Ss.3,4,6 –

CrPC, 1973, S.252.

(8) 2007(1) GLH P.169 Thakor Viraji Jesangji V/s. State of

Gujarat. Probation of Offenders Act, 1958, Ss.3 & 4 – Crpc,

1973, S.360 – Appellant convicted for the offence punishable

u/s.332 of IPC and was awarded six months simple imprisonment

with fine – Though a request was made to grant him benefit of

probation, the same was not granted by Trial Court – Having

regard to the provisions of law, circumstances of the case, nature

of offence, age and character of the appellant, etc., benefit of

probation is granted – Appeal allowed.

(9) 1995 CRLJ P.914 (BOM) Shailesh alias Shailendra / State of

Maharastra (B) CrPC, S.360, Release on Probation – Accused

inflicting single blow of stump on head of deceased in a friendly

Cricket match was convicted for offence of grievous hurt –

Accused 20 years of age at time of incident – No adverse report

against accused – Accused entitled to benefit of probation

considering age, character and antecedents.

(10) 1989 CRLJ P.1539 (Gauhati) CrPC, Ss.360 & 361 – Assam

Liquor Prohibition Act, S.4 – Probation – Release on – Conviction

for offence punishable under the Prohibition Act –Accused 21 yrs.

of age – Offence punishable with imprisonment for a term which

could extent to two years – No material to show that accused had

previous conviction – Provisions of S.361 are mandatory – No

reasons recorded for not having dealt with accused a required

u/s.361 – Held, benefit of S.360 should be extended to accused –

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Conviction maintained but accused released on probation for good

conduct.

(11) Jugal Kishore Prasad vs State of Bihar 1972, the Supreme

Court observed that the object of the Probation of Offenders Act,

"is in accordance with the present trend in the field of penology,

according to which efforts should be made to bring about

correction and reformation of the individual offenders and not to

resort to retributive justice. Modern criminal jurisprudence

recognizes that no one is a born criminal and that a good many

crimes are the product of socio-economic milieu."

(12) Mohamad Aziz Mohamed Nasir vs State Of Maharashtra,

AIR 1976, the appellant was below 21 years of age. The appellant

was at one time a well known child film actor and won several

awards for acting in films. Subsequently he fell in bad company

and took to evil ways. SC held that even if the point relating to

Section 6 is not raised before the High Court, the court was bound

to take notice of the provisions of the section and give its benefit to

the applicant. It further held that Section 6 lays down an injunction

not to impose a sentence of imprisonment on a reason who is

under 21 years of' age and if found guilty of having committed an

offence punishable with imprisonment other the that for if unless it

is satisfied that it would not be desirable to deal with him under

Section 3 or Section 4. This inhibition on the power of the court to

impose a sentence of imprisonment applies not only at the state of

trial but also at the stage of High Court or any other court when the

case comes before it in appeal or revision.

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(13) Isherdas v. State of Punjab, the Supreme Court, In

absence of a precise formula to determine when and when not the

benefit of probation can be given, we have to look at SC court

judgments to understand what kind of offenses are eligible for this

benefit. SC has accepted the applicability of probation for many

kinds of offences. For example, in Isherdas v. State of Punjab,

the Supreme Court held that the Probation of Offenders Act was

applicable to the offenses under the Prevention of Food

Adulteration Act, 1954.

(14) Alister Anthony Pareira v. State of Maharashtra (supra)

the Apex Court while dealing with Section 4 of the Probation of

Offenders Act, 1958, observed that Section 4 could be resorted to

when the court considers the circumstances of the case,

particularly the nature of the offence, and the court forms its

opinion that it is suitable and appropriate for accomplishing a

specified object that the offender can be released on the probation

of good conduct.

(15) Mahendra S/o Chunnilal Vs. State of Madhya Pradesh

thro' P.S. Banganga, 2006 Cr. L.R. (M.P.) 660. Sec. 360 -

Probation of Offenders Act, 1958 - Sec. 6/4 - PenalCode, 1860 -

Secs. 294 and 324 - Offence under - Sentence -Accused applicant

is 18 years of age at the time of incident - No material available

about previous conviction of appellant in any other case - He has

not prosecuted after this case in any other case and he is living

peaceful life and maintaining his family - Now, he is a married man

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- Held, It would be just and proper to release applicant on

probation.

(16) Ishwarlal & Ors. Vs.State of Madhya Pradesh, 2011 Cr.

L.R. (M.P.) 667 Sec. 360, 361 - Benefit of probation- Offence u/ss.

325 and 323- Prayer for granting probation- Benefit of probation

refused only on the ground of serious offence- Dispute regarding

field - Civil suit is also pending- No special reason given by the

Sessions Court – First facts of the case benefit of probation given.

(17) Ishwarlal & Ors. Vs.State of Madhya Pradesh, 2011 Cr.

L.R. (M.P.) 667 Sec. 360, 361 - Benefit of probation- Offence u/ss.

325 and 323- Prayer for granting probation- Benefit of probation

refused only on the ground of serious offence- Dispute regarding

field - Civil suit is also pending- No special reason given by the

Sessions Court - First facts of the case benefit of probation given.

(18) Annu & Anr. Vs. State of Madhya Pradesh, 2011 Cr. L.R.

(M.P.) 661 Sec. 360, 361 - Conviction u/ss. 452 and 323 I.P.C. -

Benefit of probation not given - Prayer for granting probation

Petitioners are laborers and first offenders - No reasons assi gned

for not granting benefit of probation - Held, It is a fit c ase and

benefit of probation granted. - [Ref.] Sec. 360, 361 - Offence u/s.

143 of Railways Act - Benefit of probation not extended- First

offence - No previous conviction - Imprisonment of 3 months only -

Held, Benefit of probation given.

(20) Habib Patel Vs. State of Madhya Pradesh, 2011 Cr. L.R.

(M.P.) 697 Sec. 360, 361 - Offence u/ss. 279, 337, 338 and 304 -

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A–Prayer for granting benefit of probation–Incident is of the year

1991–Mechanical Inspector not examined–Held, Considering the

facts of the case benefit of probation is allowed.

(20) Manak Lal & Ors. Vs. State of Madhya Pradesh, 2011

Cr.L.R. (M.P.) 655 Sec. 360, 361–Revision–Prayer for granting

benefit of probation–Offence u/s. 324/34 I.P.C.–17 years of old

case– Courts below not given any reasons for not granting probat

ion–No previous conviction–First offence– Held, It is a fit case for

granting benefit of probation.

(21) Dinesh Swami Vs. State of Madhya Pradesh Thro' P.S

Badnawar, Distt. Dhar, 2011 Cr. L.R. (M.P) 614, Sec. 362, 360,

482– Conviction u/s. 498-A–Petition to grant benefit of probation

since the petitioner's service is likely to beaffected adversely-

Family dispute between the parties–Held, It is made clear that the

conviction of the petitioner shall not affect his service career.–

(22) Srikrishan Vs. Deenbandhu & Ors. 2013 Cr. L.R. (M.P.)

107, Sec. 372 Proviso–Order passed in appeal challenged–

Maintainability – No specific provision of 2nd appeal in criminal

case–Order of conviction or acquittal passed in appeal is not

appealale–Held, Appeal is not maintainable and appellant is

directed to take steps for converting the appeal into revision.–.

(22) Charanjit Kaur Versus Bikram Singh & Anr. W I T H

CRIMINAL APPEAL NO.213 OF 2016 [Arising out of

S.L.P.(Crl.)No.3694 of 2013] Indian penal Code, 1860, 498A &

406 – Probation of Offenders Act, 1958, Section 4(1) - Cruelty –

Criminal breach of trust – Conviction – First appellate Court

granted benefit of probation to husband/accused on deposit of

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Rs.2,50,000/-, payable to the wife/appellant, within one month -

High Court dismissed the challenge made to the aforesaid

judgment/order of the first appellate Court in a summary manner –

Remand of case by Apex Court for re-hearing the parties and fresh

decision on merits.

8. PROBABLE CONDITION CAN BE IMPOSE ON ACCUSED:

The conditions imposed on a probationer are usually some of the

following:

1. That he be of good behavior and appear before the

Court for (conviction and) sentence when called on at any time

during the period of ........... now next ensuring;

2.That he does not associate with ..............;

3.That he does not frequent ..............;

4.That he does lead an honest and industrious life;

5.That he does abstain from intoxicating liquor;

6.That he does reside at ..............;

7.That during the said period he be under the provision of ..............

(hereinafter called the Probation Officer), and

(a)For the purpose of securing such supervision, that the

probationer receive at his own home visits from the Probation

Officer weekly, or at such other intervals as the Probation Officer

may think fit; and, if so required by the Probation Officer, attend at

the probationer's home for the purpose of such visits at times fixed

by the Probation Officer; and answer truly all questions put to him

by the Probation Officer with regard to his conduct, employment or

residence;

(b)And that the probationer report forthwith to the Probation

Officer any charge of his residence or place of employment;

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8.(Any special condition);

9.(As to damage or costs);

(9) SUGGESTION

My Personal Suggestion Regarding The Probation Of Offender

Act

A. Magistrates should use section 6 of the P.O. Act, which

makes it mandatory on their part to call for reports from

probation officers, in cases where the accused is less

than 21 years of age.

B. Magistrates could call for reports of the probation officer

in advance and kept sealed so that if the case ends up in

conviction, they could consider the case for release on

probation.

C. Reasonable time should be given for the probation

officers to file their reports. Ideally speaking, P.O. should

get at least two weeks time to file a social investigation

report. • NGOs visiting prisons should refer cases to

magistrates when they come across any case which they

feel is suitable for release on probation.

D. If magistrates refer cases to probation officers fit for

giving the benefit of probation, work could proceed more

efficiently.

E. • There should be liaison between the prison authorities,

court and the probation department for better

implementation of the P.O. Act.

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F. There should be regular workshops for magistrates and

probation officers at district level to increase awareness

among the judiciary about the P.O. Act.

-:::THANK YOU:::-

useful judgment of probation of offender act

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