“Man must live, not only exist,
he must do,not merely be,
he must grow, not just vegetate “
Spencer W.Kimbell
About the Author
The traditional penological approach has undergone a drastic change over time. This evolving penal system is now in a phase where the needs of the community are balanced with the best interests of the accused. However, the concept of reformation for the accused person is still a question for a part of civil society. A study by the National Institute of Justice says that “prisons are good for punishing criminals and keeping them off the street, but prison sentences, particularly long sentences, are unlikely to deter future crime. Similarly, laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are partly ineffective because criminals know little about the sanctions for specific crimes.” Such circumstances give a reason for modifying our thoughts about our punishment system.
Probation, the word itself, means the act of proving one’s worth and building a character worthy of being released. The best two examples that need to be taken into account are Germany and Norway, because both the countries truly focus on rehabilitation. The German system is especially different as prisoners live in rooms and sleep on proper beds. They prepare their meals, wear their clothes, and decorate their space as they wish. There they learn new skills, gain education, and are paid for their work. When looking into the nature of prisons existing in Norway, there is a system of small, community-based correctional facilities. Many Norwegian prisons allow prisoners to have visitors up to three times per week. There is a strong emphasis placed on relationships so that incarcerated individuals have a strong support system after their release.
According to the World Population Review, about the crime rate of countries in 2023, the crime index of India is 44.43, but it still considers probation an underrated concept, while that of Germany is 35.79 and it is one of the countries with least criminals. The history of Probation began in India during the 20th century as a part of the juvenile justice system. It has its roots in the positivist school of criminal jurisprudence. According to the Indian Jail Committee report, the Indian government drafted a bill of probation in 1931, but initially, its digest was not justifiable for the pillars of parliament. Then, with the assistance of the Joint Committee, the bill was introduced in parliament and enacted in 1958.
PROGRESS OF THE INDIAN PROBATION SYSTEM
The statutory provision that underpins the PO Act is Section 360 of the Criminal Procedure Code. Based on this provision, any person who is below the age of 21 years, convicted for imprisonment less than 7 years and one above 21 years, or a woman offender who is not a life convict or punished with the death penalty can be released on probation for good conduct. The main aim of probation is to bring permanent reform to lawbreakers by introducing a socialized penal device. As correctly mentioned by the Hon’ble Supreme Court in the case Jugal Kishore Prasad v. The State of Bihar [1], “the main objective of the law is to reform the young offenders and prevent them from becoming habitual offenders as a result of their interaction with seasoned, mature-aged criminals.”
Criminal responsibility for a juvenile delinquent starts at a certain age limit. So, a juvenile is considered to be deserving of special treatment because of his age, innocence, and lack of proper understanding of the nature or consequences of his conduct at the time of the commission of the offence. The view of modern criminal justice shows that no one is born as a criminal. It is often found that one of the major causes of a high percentage of crime is the socio-economic environment. Justice V.R. Krishna Iyer commented that: “Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting as a hunch. The social background and the personal factors of the crime are very relevant, although in practice criminal courts have hardly paid attention to the social milieu or the personal circumstances of the offender “[2].To prevent the misuse of this law, the rulers of the legal system itself make it more concrete. The bench of Justice Arun Monga laid down 15 principles for the release of the convicts on a probationary period and has ordered that a copy of the order be circulated by the registry to all the courts in the states of Punjab, Haryana, and Chhattisgarh, which shall include the nature of the offence, the rehabilitation potential, individualized justice, preventing recidivism, compliance with probationary terms, and so on [3].
ADMONITION
Admonition means a firm warning or reprimand. The criminal justice delivery system can attain its ultimate aim only with the help of society. If a person commits some small mistake, Section 3 of the PO Act will protect that person. But society should also protect him by not treating him as a criminal. In a road accident brawl case, the convict was a 30-year-old Muslim man who had been charged with assaulting and injuring a man. The PO Act allows a magistrate to release a convict after admonition or an appropriate warning to prevent the repetition of the offense. But here, the court felt that a mere warning would not be enough and that the convict needed to remember the warning. Therefore, the court directed the convict to plant two trees within the premises of the Sonapur Masjid (where the crime had occurred) and also directed him to take care of them. He was also ordered to offer namaz five times a day for 21 days.
At the inception of the Act, it was limited only to the fringes that were made up of certain provisions of the penal code. But now it has evolved into a revolution for the judicial system. As in the Yug Chandak case [4], the juvenile justice board released the juvenile delinquent on probation for good conduct for a period of 2 years after being held guilty of kidnapping for ransom and criminal conspiracy. Young offenders must get the benefit of Section 6 of the PO Act if the part played by them in the crime is not prominent and he or she was influenced by elder persons. That is, the said person was a puppet in the hands of the other accused. Crimes are not always rooted in criminal tendencies, and their origin may lie in psychological factors induced by hunger, want, and poverty. This Act recognizes the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offenders can be reformed and rehabilitated in society.
An offender released on probation is convicted but not forthwith sentenced in the strict sense of penal laws. The judicial view is that, where an accused is convicted for a serious crime, such as criminal assault on a woman with intent to outrage her modesty or a conspiracy to pass fired arms and ammunition without a license, he is not entitled to the benefit of these provisions. In State v. Ratan Lal Arora [5], the Supreme Court held that” in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked if the special Act contains any provisions to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused.” On similar lines the Calcutta High Court has pronounced judgment in Prakash Shaw v. State of West Bengal [6], that the benefit of the Probation Offenders Act cannot be availed by the convict under the Protection of Children from Sexual Offenses Act, 2012, even though the convict was a teenager having no criminal antecedents.The principles of probation with supervision were first considered and recommended by the UP-Jail Enquiry Committee. The first Probation Act in UP came into force on February 1, 1938. But the act was not completely applicable throughout the state. A part of the act relating to the release of offenders under probation for good conduct after admonition was extended to the whole state;while another part relating to the release under the supervision of a probation officer was initially made applicable to only 7 districts and gradually extended to 11 more districts by 1958.
PROBATION AND PROBATION OFFICERS
When an offender is convicted, the order of punishment is passed at the same time. During this period, he leads an honest life and does not get into a bad society; the sentence is subsequently quashed. Meanwhile, if he does not behave well during the period of probation and is reported against by the probation officer, he is likely to be called to receive the sentence. Probation officers are tasked with conducting regular check-ins and meetings with individuals on probation. These check-ins serve as opportunities for probation officers to assess the progress of offenders, address any issues or challenges they may be facing, and provide guidance and support. They have the added responsibility of coordinating and working with other professionals involved in the criminal justice system. This includes prison workers, juvenile counsellors, prosecutors, and judges to ensure a coordinated and effective approach to rehabilitation and supervision. Once the court has issued a supervision order with reasonable conditions, it has the authority to order the offender to sign a bond with or without surety, promising to appear and receive a sentence when cleared within a period of 3 years. In any instance, if a probationer fails to observe any of the conditions of the bond, then the court may issue a warrant or summons for him and his sureties and require him or them to attend before it. A probation officer’s report is not necessary to enforce this rule, but if the information is required on record, the court must consider the probation officer’s information before issuing a good behaviour probation order. In Kerala, according to the statistical report for September 2023, about 709 probationers are handled by 17 probation officers. That is, there is a caseload of more than 50 probationers in each district under the respective probation officers.
HEADWAY OF KERALA PROBATION RULES
For the first time in India, Kerala was the first state to establish a probation system. After with the enactment of the Madras Children’s Act, 1920, a probation office was established at Malabar, which was a part of Madras. In united Kerala, the probation system started its functioning as a vital part of the jail system. The Kerala Probation of Offenders Rules came into existence in 1960 through the power conferred under s. 17(1) of the PO Act, 1958, which gives a perfect configuration for the evolving chassis.
Even today many of the laws in the probation code remain dead. The Kerala probation rules give a hierarchy for probation officers and offer segregation of powers, which may reduce the caseload at each level. An excellent idea enshrined in the act is the appointment of honorary probation officers. Such a concept is adopted by foreign countries, and this position seems to be reserved for highly idealistic citizens. As this is not a remunerative profession, the public-spirited mind is very colossal among those who come to this position. But in Kerala, this law remains a dead letter. The benefit of appointment to this position is that the caseload of probation officers in each district in Kerala will be reduced, and the probation system will become more efficient and operational. Similarly, another dead provision in this act is the State Advisory Committee. Since the exertion of this committee is not effective, it affects the efficiency of the probation system in Kerala. However, the government has chosen many avenues to modernize the probation system in Kerala and is working hard to improve the probation system. The rehabilitation of those released from prison is equally important, as is the maintenance of the dependents of those in prison. This is also part of the probation system which requires adequate importance.
CONCLUSION
Considering the probation system all over India, our justice system is coming forward to uproot all the poisons in society and not just confine them to the rule of law. Crime connected with the prevalent physical or emotional conditions of the offender moreover with the social circumstances. Therefore the need of penalisation must not be used to torture or harass but to refine the evil in them by making them better humans. At one point, Justice P. V. Kunhikrishnan quoted in his judgment some lines from the poem of Ayyappa Paniker : “Just because I have stolen a few things, why should you call me a thief?“. To err is human; if a person commits a small mistake, society must reform him instead of letting him out of the community.
FOOTNOTES
[1] 1972 AIR 2522
[2] Ved Prakash v. State of Haryana (AIR 1981 SC 643)
[3] Sandhu, Jagpreet Singh. “The High Court Lays Down 15 Principles for the Release of ConvictsonProbation.“TheIndianExpress,29Aug2023,indianexpress.com/article/cities/chandigarh/punjab-haryana-hc-principles-release-convicts-probation-8913969
[4] Bose, Soumitra. “Juvenile in Yug Case Released on Probation of Two Years.” The Times ofIndia,26July2017,timesofindia.indiatimes.com/city/nagpur/juvenile-in-yug-case-released-on-probation-of-two-years/articleshow/59780834.cms.
[5] (2004) 4 SCC 590.
[6] C.R.A. 69 of 2018
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