Author: This article is written by Aravind Prakash, who is a member of LJRF Ernakulam chapter and a student member of Project Complete Lawyer. Moreover, he is currently working as a Ljrf Voice editor trainee. This article is an analysis on the topic Probation.
INTRODUCTION
Probation plays a vital role in criminal jurisprudence whereby it speaks of a supervision period when an offender has a community sentence, which acts as an alternative to incarceration. It is often treated as a type of sentence disposition defined as the supervision of offenders in the community by probation officers. Probation differs from jails or prisons (i.e. Incarceration) where the offenders continue to live in an enclosed community rather than in confinement in a restorative or correctional space. As such, probation can be conceptualized as a type of redirection from more serious criminal law sanctions imposed upon an offender.
The term ‘probation is derived from the Latin word ‘probate which signifies ‘to test’ or ‘to demonstrate’. Historical-linguistics of probation signifies ‘demonstrate my value’. It is one of the actions which may be used by Courts as a further developed sort of non-custodial choice rather than confinement. This remedial device is generally speaking logically used by the magistracy in present-day times. It centres around the reclamation of blameworthy persons by returning them to society during the hour of the executives as opposed to sending them into an unnatural and socially unfortunate environment of correctional facilities.1 Probation aims to get heretic a long way from treacherous results and proposition him to lead a socially accepted living without manhandling the law and beginning at all treatment methods is an authoritative recuperation of the blameworthy party in the organization. Therefore, the framework of probation is a significant, modern strategy for treating a lawbreaker. It leaves from the conventional and old-school thinking of punishment and swivels into the criminal philosophy rooted in compassion, humanitarianism and utilitarianism.
DEFINITION
The lawful idea of probation as a criminal justice system is ‘Contingent suspension of a sentence’. According to the view of Franz von Liszt who is considered to be the father of German criminology, “Probation proves to be a double dividend. It not only saves public money and respects private freedom, it even does a better job in taming recidivism”. Another view was propounded by David L. Sills has opined that probation is a procedure for “ release of convicted criminals or adjudicated delinquents on a conditional basis to assist them in pursuing a noncriminal life”2. According to Cummings, “it is a device for alleviating the harshness of punishment and preventing contamination of the criminal novice in the unsavoury atmosphere of the prisons into a method of social treatment and rehabilitation, provided probationers are carefully chosen and the supervisory work is performed with intelligence and understanding”.
Probation as a restorative measure without a doubt lays more noteworthy emphasis on treatment techniques yet from the lawful outlook it requires legal investigation and observation in a wrongdoer’s case under a distinct lawful procedure. This can be more clear by analysing the below said definition of probation pronounced by the Advisory Committee on Penal Institutions, Probation and Parole to the National Commission Of Law Observance and Enforcement as:- a process of treatment, prescribed by the Court for persons convicted of offences against the law, during which the individual on probation lives in the community and regulates his own life under conditions imposed by the court and is subject to supervision by a probation officer. The length of the probation period varies and is determined by the court.
HISTORY AND ORIGIN OF PROBATION
The origin of probation can be traced to the English criminal system of the nineteenth century. Harsh and inhumane retributions were inflicted on adults and children the same for offences that were not generally of the same and genuine kind. Sentences like marking, lashing, mutilation, and execution were normal. During the time of King Henry VIII alone, for example, no under 200 violations were deserving of death, large numbers of which were minor offences.
This cruelty ultimately prompted discontent in specific moderate portions of English society that was worried about the advancement of the equity framework. Gradually yet steadfastly, with an end goal to moderate these harsh practices, an assortment of measures were contrived and embraced. Imperial absolutions could be bought by the denounced; politically motivated judges could forgo applying resolutions or decide on a tolerant translation of them; taken property could be cheapened by the court so offenders could be accused of a lesser crime. Additionally, strategies like the advantage of ministry, legal respite, safe-haven, and repudiation offered wrongdoers a level of insurance from the institution of unforgiving sentences. At last, the English Courts started the act of “binding over for good behaviour,” a form of brief delivery during which guilty parties could go to lengths to get pardons or lesser sentences. Controversially, certain courts started suspending sentences.
Probation initially emerged in the nineteenth century as an informal instrument to restore people indicted for moderately minor offences. Probation began in a grassroots manner- a pioneer instance of probation happened in 1852 when a shoemaker named John Augustus (first true probation officer and “Father of Probation”) applied for bail for an alcohol addict and persuaded him to promise to stop drinking. John kept aiding wrongdoers in this manner for some years, directed by the possibility that individuals blamed for minor violations do not have to undergo detention in prison rather could be rehabilitated. His efforts, in the end, roused law officials to consider probation as a legitimate intermediary to incarceration, 10 November 2021.
the notion of probation was further extended to juvenile offenders at the time of Matthew Davenport Hill. He believed that the individual who commits a crime is not fully corrupt and has got a reasonable hope of reformation. For instance, the English magistrates initiated experiments to save young and inexperienced offenders from the trauma of prison by assigning them to care and guardianship of parents or employers with an occasional check on the progress of the police.
DEVELOPMENT AND POSITION IN INDIA
ANCIENT ERA
The Smritis knew about the intricacies of human instinct and they gave due consideration to the singularity of a guilty party in criminal science. This foresight made the Smrities exceptional and prodigious. Even though there was no immediate reference to freeing the guilty parties on probation yet Smriti writers’ perspectives appear to help the cutting edge idea of probation. It is because they were aware of a few purposes served by discipline for wrongdoings however they didn’t foster a standard study of penology. On one side the individual feels an incredible desire for retribution or reprisal and different men identify with that feeling. Assume control over thusly the States Law to it that the feeling for reprisal or retribution was somewhat fulfilled by the satisfactory discipline to the miscreant.
It is pertinent to note that the ancient Indian criminal legal system was discriminatory based on caste, giving more value to the life or limb of a Brahmin than against the Shudras (lower caste group). Because of this caste framework, most likely, a uniform law endorsing punishments was not developed or even tried to be created. However, hints of the idea of admonition can be seen at different places. For instance, the ancient idea of punishment in India was regulated by consideration of the motive and nature of the offence, the overall setting, the strength, age, direct, learning and financial situation of the offender and above all, by the reality, whether the offence was rehashed. These ideas were put forward by the Smritis as right on time as 300 B.C. In Manu, Smriti reference has been made to release a wrongdoer after delicate admonition.
MEDIEVAL ERA
During the Muslim reign in India up to the coming of British rulers the administration of the criminal justice system was based on Islamic criminal law which didn’t perceive standards of restorative and correctional method or admonition. Yet, during the Maratha rule and Peshwa period, there are hints where principles of probation were being applied slightly. For example, in the Case of Janki Lagadin, where a lady named Janki was released based on the surety for her future good conduct by her father Shivaji Gaikwad from the crime of adultery.
DURING BRITISH ERA
In British India, probation received statutory recognition for the first time in 1898 through Section 562 of the Code of Criminal Procedure, 1898. Under the provisions of this section, the first time offender who has been convicted of theft, dishonest misappropriation or any other offence under the Indian Penal Code punishable with not more than two years imprisonment could be released on probation of good conduct at the discretion of the Court. The said provision was copied from the English Probation of First Offenders Act, 1887. Section 562 was later amended by an Amendment Act of Cr. P.c. in 1923 which is a fundamental way to change the law of Probation in India. Also, this section did not contain any specific provision empowering an appellate court or a High Court as a court of Revision in matters of probation which was provided in the new section. The period of Probation under the old section of 1898 was not to exceed one year. Moreover, under the new Section 562 of 1923 Amended Cr.P.C. A court may grant probation in case of the offender not under the age of 21 years for offenses punishable with not more than 7 years and in case of offender below 21 years as a woman for offenses punishable with death or imprisonment for life. In 1973 the new Cr, P. C. provides almost the same provision in section 360. From that point in 1931, the Government of India coursed a proposed draft of Probation of Offender Bills to the then neighborhood state-run administrations for their perspectives. In any case, attributable to distraction with other significant issues the Bill couldn’t be continued with and in 1934 the Government of India informed the Provincial legislatures that as there was no prompt possibility of focal enactment regarding the matter, so there would be no complaint if the territories attempted such enactment themselves. Incompatibility with the above idea a few territories authorized their probation laws. The enactments include; The C.P. & Berar Probation of offenders Act, 1937, the Bombay Probation of Offenders Act, 1938, the U.P. First Offenders’ Probation Act, 1938, The West Bengal First Offenders Probation Act,1954.
POST-BRITISH ERA
It was in the year 1931 the Government of India organized a Draft Probation of Wrongdoers Bill and passed it to the then Provincial governments for their perspectives.8 Two decades later, A Bill on Probation of Offenders was introduced in Lok Sabha on November 18, 1957. A Joint Committee on the Bill was selected to accommodate the release of wrongdoers waiting on the post-trial process and was introduced to Lok Sabha on the 25th February 1958. In Parliament, the Probation of Offenders Act was embraced on the exhortation of the Joint Committee. Probation in India is utilized as an institutional strategy for treatment. The western doesn’t permit the utilization of institutional strategies for probation. They control probation by intentional associations of sociologists and clinicians.
They consider that the appointed authorities ought not to meddle with this. Thus a new era in the field of probation started in India by the enactment of the Probation of Offenders Act, 1958.
PROBATION OF OFFENDERS ACT, 1958- A PREROGATIVE OF OFFENDERS
It is accepted that detainment diminishes the limit of a wrongdoer to correct to the typical society after the delivery and relationship with proficient reprobates frequently affect him and his life from thereon. Probation is a mingled reformatory gadget which has come up as the aftereffect of change, throughout some undefined time frame, of the teaching of discouragement into the standard of transformation; an improvement that made ready to the presentation of clinical methodology and the rule of individualization in the treatment of guilty parties. The Probation of Offenders Act of 1958 (hereinafter referred to as “the Act”) is pointed toward adjusting first-time offenders by restoring them in the general public and keeping away from the movement of adolescent and hard-core wrongdoers or culprits into unyielding hoodlums under natural control by securing them from jail.
The Act solely depends on the idea that young offenders can be saved from becoming ongoing wrongdoers by treating them agreeably and allowing them to change rather than unloading them into correct prisons. The Act engages the Court to free those prisoners waiting on the post-trial process for inappropriate conduct assuming the wrongdoing executed isn’t deserving of death or detainment forever. He will, along these lines, be monitored.
Important provisions of the Act
There are three most important sections in the Act that need to be mentioned. They are:-
● Section 3 Power of court to release certain offenders after admonition. 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, (45 of 1860) 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 offense, 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.
Comment : This is an enabling section whereby an offender can seek to resort to section 3 if there is no deliberate preparation or design of the offence which he is accused of.10 The section is generally made applicable where a youthful first offender succumbs to sudden temptation or uncontrollable impulses or does a thoughtless act or acts under the influence of others. The Section is not to be applied to cases where the offence was an act of daring and apprehensive nature, or the commission of the offence implied previous preparation or deliberate effort on the part of the accused, or where the conduct shows a design or a general character of craft and deceit.”11 The Supreme Court in the case of Keshav Sitaram Sali v. the State of Maharashtra held that in a petty theft the High Court should have extended the benefit of either section 360 of the Code of Criminal Procedure or sections 3 and 4 of the Probation of Offenders Act to the appellant instead of imposing a sentence of fine on the convict. However, in Trinadha Rao V. State of A.P12 it was held by the Andhra Pradesh High Court in 1984 that the” character of the offender is not only but one of the circumstances that can be taken into consideration.
Section 4 Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life 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 to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition, pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
Comment : Section 4 of the Act deals with the release of the offender on the basis of good conduct. This section is not applicable if the offender is found guilty of an offense with death or imprisonment for life. Also, the Court has to consider the circumstances of the case including the nature of the offense and the character of the offender. The Court has got a discretion to direct the offender to execute a bond, with or without sureties, to appear and receive a sentence when called upon during such period which should not exceed a period of three years. There are five subsections associated with this provision. Each one is important when it comes to the release of the offender on the basis of good conduct. In the case of Smt. Devki v The State of Haryana13, it was noted by the Apex Court that Section 4 would not be stretched out to the odious offender who is viewed entirely liable for abducting a teenage girl and compelling her to sexual submission with a business interest.
Section 6- Restrictions on the imprisonment of offenders under twenty-one years of age.—(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the 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, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) to satisfy itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report if any, and any other information available to it relating to the character and physical and mental condition of the offender.
Comment : section 6 of the Act specifies the restriction and limitation on the imprisonment tenure of criminals who are aged below twenty-one years. This section deals with those offenders who are under 21 years of age and who are not sent to prison where the offence is not so serious as to warrant imprisonment for life or death. The Supreme Court in the landmark case of Ramji Nissar v. The State of Bihar14ruled that the object of the Act is to forestall the transforming of youthful offenders into hard-core criminals by their relationship with solidified lawbreakers of the mature age of mature age within the walls of a prison. The strategy embraced is to endeavour their possible reformation as opposed to incurring for them the ordinary discipline for their wrongdoings. The individual’s age issue is significant not to survey their culpability, but instead to rebuff the wrongdoing for which the person in question is viewed as blameworthy. Subsequently, if a court discovers that the respondent was not younger than 21 on the day the court viewed him to be entirely liable, Section 6 will not come into play.
CONCLUSION
Probation is a technique by which a convicted individual is released by the court on certain conditions while their sentence stays suspended. In the criminal justice system, it is prominently known as contingent suspension of sentence.
The advanced way of thinking of rehabilitation is put to the functional application through the use of the probation system. The legislative development of the Probation system in India has been put forward from the medieval period onwards. The development of the hypothesis of probation has been the outcome of continuous development and to some degree oblivious change of existing lawful practices receptive to social changes and philosophical thinking rather than the aftereffect of a purposeful inventive, authoritative or judicial interference. To conclude, the change and rehabilitation must be worked out in the setting of existing social conditions to accomplish a definitive target to recover back those guilty parties to deliberate society.
REFERENCE
The Probation of Offenders Act, 1958, No. 20, Acts of Parliament, 1958.
Poulton, F. E. (1930). The Probation Committees and the probation officer. Probation, 1(5), 73–73. https://doi.org/10.1177/026455053000100506 Accessed 11 November 2021.
Paranjape N.V. Prof Criminology and Penology with Victimology, 20th Edition, Central Law Publications, Allahabad, 2020, p.573.
Worthington, W. G. (1930). Probation the journal of the National Association of Probation officers. Probation, 1(5), 65–66. https://doi.org/10.1177/026455053000100501 Accessed 11 November 2021.
Cummings H. S. Survey of Release Procedures, (1939), Vol. II Probation. US Dept. Of Justice, Washington D.C., USA.
Ramji Nissar v. The State of Bihar; AIR 1963 SC 1088.
Wood, A. E. (1931). Report on penal institutions, probation, and parole: Comment. Michigan Law Review, 30(1), 79. https://doi.org/10.2307/1280640 Accessed 11 November 2021
Probation, social work and psychoanalysis: Into the 1950s and beyond. (2014). Rehabilitation and Probation in England and Wales, 1876–1962. https://doi.org/10.5040/9781474210935.ch-007
Smt. Devki v. The State of Haryana, AIR 1979 SC 1948.
Probation of Offenders Act, 1958 (Act 20 of 1958) by the Parliament of India.
Basikesan v.State of Orissa , AIR 1967 Ori 4.
Ippili Trinadha Rao V. State of A.P. (1984 Cri.L.J.1254.
6 Rathore, A. S., & Goswamy, G. (2018). From Dharmashastra to modern Hindu law. Rethinking Indian Jurisprudence, 80–87. https://doi.org/10.4324/9781351106658-8 Accessed 11 November 2021
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