Anupam Aysha·
Probation Law Reforms
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Supreme Court Judgments on Probation from 1960-1980

Photo Taken In Aachen, Germany

This article is written by Julia Thomas, a 2nd Semester student of BA LLB at Government Law College, Thiruvananthapuram. She is also a member of the Probation Service Support Team of Law and Justice Research Foundation.

Supreme Court of India in the case of Bishnu Deo Shaw v. State of West Bengal

Introduction

Punishment refers to the infliction or imposition of penalty for an offence or misdeed.

There are 8 theories of punishment. They are given below:

  1. Deterrent Theory of Punishment
  2. Retributive Theory of Punishment
  3. Preventive Theory of Punishment
  4. Reformative Theory of Punishment
  5. Expiatory or Compensatory Theory of Punishment
  6. Incapacitation Theory of Punishment
  7. Utilitarian Theory of Punishment
  8. Multiple Approach Theory

Among these 8 theories, the reformative theory proposes that punishment is given to reform the offender. This theory views punishment as a rehabilitative process. One way in which the offender can be reformed is by giving him the benefit of probation.

The Probation of Offenders Act came into being in 1958 (Act No. 20 of 1958). This Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. As mentioned above, this was passed to reform offenders through the agency of court, instead of punishing them. There is a general misconception that the Act was enacted to let go of every offender without any punishment regardless of the circumstances in which the offence was committed. This is not true. In reality, the Act was implemented to avoid contamination of the offender as there is a high probability that he might get influenced by other hardened and habitual offenders in the prison. Although not much can be done to reform hardened criminals, young offenders convicted for less serious offences can be prevented from turning into obdurate criminals. Modern criminal jurisprudence recognises that no one is born as a criminal, they become one due to the socio-economic conditions in which they live. This was explained by the Supreme Court in Ramnaresh Pandey v. State of Madhya Pradesh1.

The two main sections that deal with the provision of probation are Section 3 and Section 4 of the Probation of Offender Act 1958. Section 3 puts forth the power of a court to release certain offenders after admonition. Under Section 3, a person of any age may be released on admonition provided there was no previous conviction against him. Section 4 deals with the power of the court to release certain offenders on probation of good conduct. This section also discusses the discretionary power of the judges to grant probation and mentions that these powers can be exercised by the appellate court as well. The benefit of probation can be granted in 332 offences mentioned in the Indian Penal Code 1860, but when the offence for which a person has been convicted is serious, punishable with imprisonment for life or is one specified in Section 18 of the Indian Penal Code, the benefit of the Probation of Offenders Act cannot be availed. This was mentioned by the Supreme Court in Jugal Kishore Prasad v. State of Bihar2.

Age of the offender as a criterion for releasing on probation

If the offender is below 21 years, then as per Section 6(1) of the PO Act, the Court cannot pass a sentence of imprisonment unless it is satisfied that, having regard to the circumstances of the given case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4. In such cases, if the court passes any sentence of imprisonment on the offender, it should record its reasons for doing so. Further Section 6(2) provides that to decide whether the Court should allow the benefit of Section 6(1) to the offender, the Court should call for and consider a report from a Probation Officer along with any other information available relating to the character and physical and mental condition of the offender. If the judge does not call for such a report, then any sentence of imprisonment or fine awarded to the accused will be held illegal. If the report of the Probation Officer justifies giving the accused the benefit of Probation but the Magistrate does not agree to it, then a heavy burden lies on the Magistrate to show why the said report is not justified and why he refused to give the benefit of the PO Act to the offender.

In Abdul Qayum v. State of Bihar3, the appellant was convicted under Section 379 IPC and was sentenced to 6 months of rigorous imprisonment. He committed the theft with another person who was a co-accused in the case. At the time of the commission of the offence, the appellant was 16 years old and at the time of conviction, he was 18. The Probation Officer recommended that he may be released on probation under Section 6 of the PO Act. The report of the Probation Officer was favourable to the accused and suggested that since the latter was neither a hardened criminal nor an associate of hardened criminals, giving him a sentence of imprisonment would defeat the purpose of the PO Act and would instead connect him with hardened criminals. However, the Trial Court declined to grant him the benefit of probation on the ground that he was an associate of the other accused who was a hardened criminal. The order was confirmed by the High Court. In an appeal before the Supreme Court, the Court felt that if he is released on probation of good conduct, there is a hope of him being reclaimed and hence allowed him to live a normal life as a law-abiding citizen. The sentence was set aside and the appellant was released under Section 4 of the Act.

In Rattan Lal v. State of Punjab4, the appellant committed house trespass and tried to outrage the modesty of a girl aged 7 years. He was convicted under Section 451 and Section 354 of IPC by a First Class Magistrate and was sentenced to rigorous imprisonment for 6 months with a fine of Rs. 200, in default of payment of which, he was to undergo rigorous imprisonment for a further period of 2 months.

He was also ordered to pay a fine. While the sentence of conviction was passed, he was only 16 years old. An appeal filed before the Additional Sessions Judge was dismissed following which a revision petition and later a criminal miscellaneous petition was filed before the High Court. Both of these were dismissed. The appellant then approached the Supreme Court on special leave. Accepting the appeal the Supreme Court observed that the Magistrate, Additional Session Court Judge and the High Court Judge did not comply with the requirement of Section 6(2) of the PO Act, which is mandatory. The Court held that while in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them as per Section 3 of Section 4, if the offender is below the age of 21 years a mandate is imposed on the court not to sentence him to imprisonment unless it is satisfied that considering the circumstances of the case, including the nature of the offence and the character of the offender, it is not good choice to deal with him under Section 3 or Section 4 of the Act.

In Mohammed Aziz Mohammed Nasir v. State of Maharashtra5, the appellant was a well-known child film actor who had won several awards for acting. However, at a subsequent stage, he fell into bad company and took to evil ways. When he was 17 years and 3 months old, he snatched away two sarees from one Govind. The Presidency Magistrate convicted him under Section 379 read with Section 34 of IPC and sentenced him to rigorous imprisonment for 6 months. On an appeal to the High Court, the sentence was reaffirmed. But when the case was brought before the Supreme Court, the Court observed that the offence committed was comparatively minor and the appellant was a first offender. Hence it was seen as an appropriate case to grant the benefit of Section 6 of the PO Act. The sentence was set aside and he was released on probation.

In Daulat Ram v. State of Haryana6, the appellant was convicted under Section 323 of IPC 1860 for causing hurt. The Supreme Court observed that on the date of his conviction, Daulat Ram was less than 21 years of age. Hence, affirming his conviction, the sentence of imprisonment was set aside and he was released on probation. While deciding this case, the Supreme Court held that the PO Act should be liberally construed so that its operation may be effective and beneficial to the young offenders who are easily influenced by bad company.

Status of the offender as a criterion for releasing on probation

In Emperor v. Dakala7, it was held that the accused cannot be released on probation given the circumstances of the case including the fact that he belonged to a Satnami Sect which was considered to be the most uneducated, backward and more or less jungle people having little commonsense to judge the gravity of offences at the time of commission.

Appeal

While releasing an accused on probation, no sentence is passed by the Court. In other words, an order under Section 3 or Section 4 of the PO Act is not a sentence. However, this is not a bar to prefer an appeal to a higher court. According to Section 11(2), when an order under Section 3 or Section 4 is made by any Court, an appeal shall lie to the Court to which appeals ordinarily lie from the said Court. This right to appeal can be exercised by both the convict and the prosecution.

When the offender is below 21 years of age, the appellate court has two options before it: (1) to make an inquiry contemplated by Section 6 of the Act, or (2) to refer the case back to the Trial Court and to call upon it to pass a proper order taking into consideration all relevant facts and circumstances of the given case. The second option is preferred more because this reaffirms that the Trial Court must satisfy itself before passing any sentence that if the offender is below 21 years, he does not deserve to be dealt with Section 3 or Section 4 of the PO Act. However, the Appellate Court can make an order on the existing material without remitting the case to the Trial Court and without seeking any further information. This power was exercised by the Supreme Court in the above-mentioned case of Daulat Ram v. State of Haryana. In this case, the Supreme Court itself set aside the sentence of imprisonment and granted the benefit of probation to the accused.

In the above-mentioned case of Rattan Lal v. State of Punjab, the Supreme Court observed that the term ‘court’ in Section 6(1) includes appellate courts as well as revisional courts. Hence, an order under Section 11(1) of the Act can be made by any court which has the authority to try and sentence the offender to imprisonment and also by High Court or any court before which an appeal or revision is brought.

Section 360 CrPC

Section 360 of the Criminal Procedure Code 1973 talks about the order to release an accused on probation of good conduct or after admonition. In cases where the PO Act is to be applied, Section 360 of the Criminal Procedure Code will not be applicable. If both the Act and Code are employed simultaneously, it would have highly undesirableconsequences which was obviously not the intention of the Legislature while enacting the Act and Code. In general, it can be observed that the provisions of the Act are elevated compared to Section 360 of the Code. This is especially evident in sub-section 10 of the said section which states that nothing in the section shall affect the provisions of the PO Act. The Act has its paramountcy in the respective areas of its applicability. Hence, it can be said that for all practical purposes, Section 360 of CrPC should be deemed to be redundant or non-existent where the PO Act is in force.


Section 361 of CrPC

If the Court refrains from dealing with an offender under Section 360 or under the provisions of the PO Act, or any other law for the treatment, training or rehabilitation of youthful offenders where the Court could have done so, Section 361 of CrPC makes it mandatory for the Court to record in its judgement the special reasons for not doing so. Here the phrase ‘special reasons’ means that the court should be able to satisfy itself that it is impossible to reform and rehabilitate the offender after examining the facts of the case concerning the age, character and antecedents of the offender and the circumstances in which the offence was committed. This was held by the Supreme Court in the case of Bishnu Deo Shaw v. State of West Bengal8. If the Magistrate, court of appeal or court of revision does not indicate the reason then there has been a gross miscarriage of justice. Thus, Section 361 of CrPC casts a duty upon the Court.

Offences related to Food Adulteration

In cases relating to Food Adulteration, the Supreme Court has been generous in granting the benefit of probation when the offender is below 21 years. Two cases in this area are discussed below.

In Isher Das v. State of Punjab9, the Food Inspector Patiala bought two cups of ice cream for 3 rupees from the appellant from Phul Cinema canteen. This sample was sent for analysis to the Public Analyst Chandigarh. Having found a deficit in milk fat contents, the Analyst produced a report that the ice cream was adulterated. The prosecution filed a case against the appellant under Section 7(1) of the Prevention of Food Adulteration Act 1954 (Act no. 37 of 1954) read with Section 16(1)(a)(i) of the same Act. A charge was framed against the appellant and he pleaded guilty to the same. Considering the fact that the appellant was below 21 years of age and that he was in a repentant mood, the Trial Magistrate furnished a bond to the appellant under Section 4 of the PO Act.

When an appeal was filed before the High Court, the Court considered Section 16 of the Prevention of Food Adulteration Act which prescribes a minimum sentence of imprisonment of 6 months and a fine of Rs. 1000. The High Court was of the opinion that offences under the Prevention of Food Adulteration Act were against public safety and deserved appropriate punishment. The accused was sentenced to simple imprisonment for a period of 6 months with a fine of Rs. 1000. On failure to pay the fine, the convict was to undergo simple imprisonment for a further period of one and half months. When an appeal was filed by special leave, the Supreme Court restored the order of the magistrate and released the accused on probation.

In Sitaram Laxminarayan Agarwal and Anr. v. State of Maharashtra10, Ganeshrao Pandurangrao Mukhadkar, purchased ten kilograms of groundnut oil from Balaji Kirapa Stores, a shop owned by the appellants. This oil was used for preparing food for a feast. Soon after the feast was over, some of the guests developed stomach troubles and started vomiting which gave rise to doubts about the quality of the oil used. A complaint was filed before the Chief Officer, Nandam Municipal Council and on receipt of the report, the Municipal Council directed the Food Inspector to make an enquiry into the matter. The Food Inspector took a sample of the oil remaining with Mukhdkar and after complying with the necessary formalities, sent the same to the Public Analyst. The Food Inspector then proceeded to the shop and demanded a sample of the oil sold by the appellants to Mukhdkar. Since that oil was not available, the appellant sold a sample from another oil which was known as Til Oil. The Food Inspector after preparing the sample sent the same for chemical analysis to the Public Analyst. The report of the Analyst showed that both the samples were adulterated. The Magistrate and the Sessions Judge convicted the appellants under various provisions of the Prevention of Food Adulteration Act. The appellants filed a revision petition before the High Court, but it was dismissed. Then they went to the Supreme Court by special leave. The Supreme Court upheld the conviction of the first appellant but the second appellant (aged 19 years) was granted the benefit of probation over a personal bond of Rs. 2000 because firstly, he merely happened to be present at his father’s (first appellant’s) shop when the adulterated article was sold; the main person who was in charge of the business was the first appellant. Secondly, having regard to the young age of the second appellant, he is likely to become a hardened criminal if sent to jail when the aim is to reform him rather than punish him.

Offences related to Gold Smuggling

In State of Maharashtra v. Natwarlal11, the Anti-Corruption Bureau of Police raided the house of the respondent and recovered gold biscuits with foreign

markings stitched in a jacket lying in a steel trunk underneath some clothes. The respondent was not there in the house at the time of the raid. While the Anti-Corruption Bureau was conducting the raid, Customs Authorities arrived and they too raided the house. They took action against the respondent as per the Customs Act 1962 regarding the smuggled gold found in his house. The respondent, who was in hiding, surrendered before the police after a week. The Trial Court convicted him of the offence but the High Court acquitted him. While the case was brought before the Supreme Court, the counsel of the respondent requested the Court to grant the benefit of probation taking into account that the case had been going on for eleven years and also the respondent was a first offender. Not accepting this, the acquittal of the High Court was reversed because it was observed that smuggling of gold not only affects public revenue and public economy but often escapes detection.

Conclusion

The Probation of Offenders Act 1958 is based on the doctrine that the object of criminal law is to reform the offender instead of punishing him. It is a milestone in the development of the modern views of penology. Hence, whenever possible the benefit of probation should be granted to the accused. However, the judges should be cautious while choosing the criteria for application of the PO Act. In India as well as in other countries, the benefit of probation is often restricted to first offenders. Being a first offender is not a reasonable ground for waving off punishment and releasing on admonition because in many cases it is possible that the accused would have committed several offences before but was not caught doing it and hence remained undetected. However, we cannot make an assumption that a man committing an offence must have committed several offences before, which went undetected. Also, it is wrong to assume that only first offenders can be reformed. Hence, the benefit of probation should not be granted merely because the convict is a first offender or refused purely on the ground that he is a previous convict. Similarly, the fact that the accused comes from a respectable family is not a

reasonable justification for releasing him on probation because a person holding such position and power ought to set a good example to the society by showing a high degree of integrity and morality. In cases where the offender is less than 21 years, the Court is expected to show more leniency in granting the benefit of probation. In such cases, the Magistrate has no jurisdiction even if he found the accused guilty, to punish him straightaway. The court has to satisfy itself that it is not desirable to deal with the young offender under Section 3 or Section 4 of the PO Act. In conclusion, it can be said that the PO Act is one of the greatest acts passed by the Indian legislature as this act has great scope in reforming offenders and making them better people.

REFERENCE

  1. Ramnaresh Pandey v. State of Madhya Pradesh, AIR 1974 SC 35
  2. Jugal Kishore Prasad v. State of Bihar, AIR 1972 SC 2522
  3. Abdul Qayum v. State of Bihar, AIR 1972 SC 214
  4. Rattan Lal v. State of Punjab, AIR 1965 SC 444
  5. Mohammed Aziz Mohammed Nasir v. State of Maharashtra, 1976 Cr.L.J. 583
  6. Daulat Ram v. State of Haryana, AIR 1972 SC 2434
  7. Emperor v. Dakala, AIR 1965 Pepsu 30
  8. Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964
  9. Isher Das v. State of Punjab, 1972 AIR 1295
  10. Sitaram Laxminarayan Agarwal and another v. State of Maharashtra AIR 1979 SC 1569
  11. State of Maharashtra v. Natwarlal, AIR 1980 SC 593.
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