An Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith.
Be it enacted by Parliament in the ninth year of the Republic of India as follows:—
Section 1. Short title, extent and commencement
(1) This Act may be called the Probation of Offenders Act, 1958.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different parts of the State.
Section 2. Definitions
In this Act, unless the context otherwise requires,
(a) “Code” means the Code of Criminal Procedure, 1898 (5 of 1898);
(b) “probation officer” means an officer appointed to be a probation officer or recognised as such under section 13;
(c) “prescribed” means prescribed by rules made under this Act;
(d) words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1898 (5 of 1898), shall have the meanings respectively assigned to them in that Code
Section 3. Power of court to release certain offenders after admonition
Section 4. Power of court to release certain offenders on probation of good conduct
Section 5. Power of court to require released offenders to pay compensation and costs
Section 6. Restrictions on imprisonment of offenders under twenty-one years of age
Section 7. Report of probation officer to be confidential.
Section 8. Variation of conditions of probation
Section 9. Procedure in case of offender failing to observe conditions of bond
Section 10. Provision as to sureties
Section 11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.
Section 12. Removal of disqualification attaching to conviction
Section 13. Probation officers
Section 14. Duties of probation officers
Section 15. Probation officers to be public servants
Section 16. Protection of action taken in good faith
Section 17. Power to make rules
Section 18. Saving of operation of certain enactments
Section 19. Section 562 of the Code not apply in certain areas
Probation
Under probation, a person convicted of crime is given a chance to remain within the community instead of four walled prisons. It is granted by the judge through his discretion mainly in non-violent crimes or when it is a first-time offense. The convict is required to follow certain court ordered rules and regulations under the guidance of a probation officer. Certain conditions may involve performance for community services and welfare, refrained from use of alcohol or drugs, not permitted to meet certain people and appear in the court when requested.
Federal Probation
Federal probation is a sentence only for those convicts who have committed federal crimes. They are put under the guidance of federal probation officers to rehabilitate them in society.
Difference between probation and parole
Probation refers to the suspension of sentence and allowing them to stay within the community under guidance of probation officer, however, parole refers to the early release of a convict before expiry of the punishment term in order to serve the community and other restrictions. Probation is imposed by court and given generally to first time offenders whereas parole is imposed by parole board to the convicts who are already under detention. Therefore, probation is an alternative to prison and parole is conditional release from prison.
The salient features of the Act
The characteristics of the act are as follows:
1. The main objective behind the act is to reform the first time or amateur offenders and rehabilitate them in society.
2. It secures the life of first time offenders by giving warning or admonition to have committed an offence under sections 379, 380, 381 404 or 420 of Indian Penal Code with imprisonment of less than 2 year or fine or both.
3. It aims to rehabilitate but not in case of punishment of life imprisonment or death.
4. The court may ask for payment of reasonable compensation for loss caused to victim
5. The act aims to provide special protection to persons under the age of 21 but subjected to punishment.
6. The offender is placed under the guidance of the probation officer, who provides assistance to court and helps the offender to join appropriate employment.
Concept of probation arise
It started with English common law wherein the court had the power to suspend an execution whereas convicts appealed to the monarch for pardon. The concept of probation developed in the US in 1841 when Boston cobbler John Augustus convinced the judge to release the convict for his care for a short time period with the goal of rehabilitation. Moreover, with the passage of time a need was felt and led to the establishment of the National Probation Act of 1925.
Two methods of release of convict
The two methods of release of convicts depends upon the circumstance that the convict is a first time offender or a serious one; admonition and probation. Section 3 of the act connotes the treatment of petty offenders who committed offences for first time in case of certain specified offences punishable with imprisonment of less than 2 years. Whereas under section 4(1) allows probation of offender with first time petty or grievous crime on good conduct and entering into bond with or without surety on the condition that the punishment shall not be death or life imprisonment.
How can probation benefit society
There are many ways in which probation benefits the society. Some of them are as follows:
1. It helps in de-congestion of prisons.
2. Helps in providing release options for non-criminal convicts.
3. Helps in bringing reform in person, thereby affecting society directly and indirectly.
4. By providing employment opportunities, the offender can contribute to the national income of the country.
5. Prevents affecting mind of young petty offenders by hardcore criminals.
6. Prevents convicts further from committing any crime.
When and where shall the application be filed?
The application has to be filed anytime but within 15 days from notice of judgement of conviction. It can be filed with the court that tries and sentenced the convict.
Who cannot be permitted probation?
Following group of people cannot be granted probation:
1. Those convicted for a term of more than six years.
2. Those sentenced for crime against public order or national security.
3. Those who were earlier convicted of offence punishable of more than one month and one-day imprisonment and/or fine of more than two hundred rupees.
4. Convicts already placed under the act before.
5. Those convicts who are already on appeal or serving sentence
6. Persons convicted against insurgency law, wage rationalization at an omnibus election code.
Also, in the judgement of State of Rajasthan v. Sri Chand (2015), court held that no probation can be granted to person who has committed crime against women.
How long is a person on probation?
The time period of probation depends on offences and laws of states. But basically it is granted from one to three years. Such period can be extended upto life depending upon the type of the conviction.
Can probation be automatically permitted to those convicts whose sentence is less than 6 years?
The convict can be denied probation on following grounds:
1. Possibility of better rehabilitation in case he starts serving sentence
2. There lies a doubt that the convict is likely to commit crime again
3. The alternative to prison is likely to reduce the seriousness of crime committed.
Explain the powers of the court to pass supervision orders.
Section 4 (2) of the act allows the court to consider the report submitted by the probation officer. Also, the court under section 4 (3) is allowed to make supervision orders and impose additional conditions to be mentioned in the bond for the offender under section 4 (1). Other conditions to be followed by the offender are mentioned in section 4 (4) like restriction on drugs, residence and the like. Section 6 of the act emphasizes on the restrictions on imprisonment of convicts below the age of 21. This can be re-interpreted in context of JJ Act wherein it spells as ‘any person above18 years or less than 21 years’. It aims to protect the young offenders from non-serious crimes and influence of hardcore criminals.
What happens if a convict violates probation?
Violation of probation occurs when he breaks any rule or conditions imposed by court. When such a violation is traced, the probation officer can either give a warning or call for violation hearing. The discretion lies on the judge either to alter the conditions or order to serve imprisonment. Probationers can also be arrested if such a violation is a criminal offence.
Is the court empowered to change its decision on conditions of bond?
The court under section 8 of the act can change its decision regarding duration and conditions of bond during its effective period. Such changes in decision can be made to the stretch of discharge or extension of period not exceeding 3 years and it also depends upon the behavior of convict.
What happens when there is revocation of probation?
Revocation of probation does not automatically imply imprisonment. Judge upon his discretion may exercise other options like imposition of additional fine, lengthen the period of probation or order counselling programme. Moreover, judge may order to spend brief or entire period in prison depending upon the circumstances.
What are the different types of probation?
Type One: Informal Probation
Informal probation is alternatively known as court probation or unsupervised probation. It is the probation assigned to low-risk offenders. It typically involves nothing more than paying your fines and fees and agreeing to commit no more violations of the law for the period of probation, typically 12 to 18 months. The court will often order a suspended jail sentence as part of the probation. If you comply with the terms you won’t have to go to jail, but if you fail to pay your fines or commit another crime the court will send you to jail.
Type Two: Supervised Probation
A more intense form of probation is known as supervised or or formal probation. If you are on supervised probation you will have to report to a probation officer on a regular basis. Supervised probation will typically have much stricter requirements. You may be required to attend counseling, submit to random drug or alcohol checks, make restitution payments to victims of your crimes, and maintain gainful employment. In Pennsylvania, for instance, probationers must have at least eight to 12 meetings with their probation officer each month and be available on the telephone 24 hours a day, 7 days per week. If you fail to meet any of these requirements you can be sent to jail almost immediately.
Type Three: Community Control
Community control is the strictest form of probation. Effectively a jail sentence without the jail, an offender on community control will be monitored at all times. Typically this is achieved through use of an ankle monitor. The offender wears the ankle monitor for the duration of his probation and his whereabouts can be tracked at all times. Additionally, all of the other requirements of probation still apply, including payment of fines, counseling and maintaining employment. Some states such as Florida have more restrictive types of community control programs including electronic surveillance for sex offenders.
Type Four: Shock Probation
Shock probation came to prominence in the late 1990s. In a shock probation scenario, the judge sentences you to the maximum prison or jail sentence allowable under the law. Then within a short period, typically around 30 days, the judge brings you back into court and releases you to a standard supervised probation program. The rationale behind shock probation is that the brief stay in jail or prison will literally shock you into complying with the terms of your probation.
The Ins and Outs of Diversion Courts
Diversion courts are not exactly probation but they operate in the same manner. Rather than being placed on probation post- conviction, you enter the program before going to trial. If you complete the requirements the charge against you is dropped. Diversion typically involves all of the same requirements as supervised probation.
ACT DETAILS
Does section 4 of the Act has overriding effect on Section 360 of CRPC?
According to Section 19, the states wherein the Act has been applied, Section 360 of CrPC ceases to apply. Therefore, section 4 has an overriding effect on Section 360 of CrPC. The difference lies in the fact that under Section 360 of CrPC probation is granted to just first time offenders whereas under Section 4 of the act it can be granted to petty or repeat offenders as well.
Duties of a probation officer?
Section 14 of the act elucidates the duties of a probation officer:
1. In order to assist the court, the officer can be asked to enquire under its directions.
2. Guide other probationers under him and to provide relevant training to them.
3. Helps offenders in payment of compensation or dues.
4. Advise and guide in the manner prescribed for the convicts released under section 4.
Problems in the implementation of the Act?
Following are the problems in implementation of the act:
1. Limited number of probation officers are available. Moreover, no proper training is given to them.
2. The budget allocation under correctional institutions is very low.
3. The courts do not use probation officers.
4. There is a different attitude of judges towards court and prosecution.
The offence for which probation cannot be granted under the Act
There are certain cases in which the Probation of the Offender Act is not applicable. In normal circumstances the Probation of the Offender Act is not applicable to:
• Section 409, 467 and 471 of the Indian Penal Code – These Sections deal with breach of trust by public servants, forgery of valuable security and will and documents used as a genuine forgery. In Rev vs By Adv. Sri P.K.Ravisankar and State Of Gujarat vs V.A. Chauhan, on 3 February 1983, the court did not grant release of the offenders on the basis of Section 3 and Section 4 of the Probation of the Offenders Act,1958.
• Probation of the Offenders Act,1958 does not grant the release on the grounds of kidnap or abduction. In the case of Smt. Devki v. State of Haryana, AIR 1979 SC 1948, it was observed that Section 4 would not be extended to the abominable culprit who was found guilty of abducting a teenage girl and forcing her to sexual submission with a commercial motive.
• The Act refrains from providing release of habitual offenders. In the case of Kamroonissa v. the State of Maharashtra, AIR 1974 SC 2117, the appellant was charged with the theft of gold. She was punished by rigorous imprisonment. She was under 21 years of age. The probation officer thus requested the court to grant her the release under Sections 3 and 4 of the probation of the offender’s Act. The court refused the claim by addressing that the appellant had been engaging in various crimes before and was arrested in 1971.
• Section 325 of the Indian Penal Code – This Section speaks about the violence that causes grievous hurt. Thus, the Probation of the Offender Act does not provide a release on this basis.
•State of Sikkim v. Dorjee Sherpa And Ors _ In some cases, the Court does not take technical views and should take into account certain considerations, such as the risk of work losses, to invoke the provisions of the Probation of Offenders Act even in serious offences. This was also argued that the Court would also take into account that convicts belonging to middle-class families with no criminal record frequently become victims of situations due to the unwelcome business and other negative forces available to these young generations.
CONCLUSION
The Probation of Offender Act, 1958 saves minor offenders from becoming regular criminals. This is done by providing them with a chance to reform themselves rather than getting into prison. The probation officer amicably reaches to the needs and difficulties of the accused and tries to solve the problem. This is done for the person convicted of minor crimes.
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Author :
Rohit V Nair,
PGDDM,
MSW graduated from Mannam Memorial NSS College, Konni, Pathanamthitta
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