INTRODUCTION
“All crime is a kind of disease and should be treated as such”– Mahatma Gandhi
The word ‘Probation’ is derived from the Latin term ‘Probare’ which means ‘to prove’ or ‘to test’. Section 360 of the Code of Criminal Procedure, 1973 deals with probation. The main objective behind the concept of probation is to reform the offender. In this method of correction, the offender will be kept away from the evil consequences. He will be given an opportunity to transform himself to be a good person. This will definitely boosts his confidence to lead a socially useful life. Probation helps in both rehabilitation as well as reformation which equip the offender to lead a normal life after final release.
It is a fact that the unnatural and harsh atmosphere in the prison will be hardening the offender rather than reforming him. Thus a better way of reforming the offender is to send him to the normal and peaceful atmosphere in the society. The offender is given an opportunity to improve his conduct and to readjust himself in the community. Often, it will be on a condition imposed by the court and under the supervision of an officer of the court.1
Probation system was introduced in India in 1958 by passing the Central Probation Act. It permits the release of an offender on probation for a maximum period of three years. As the time went the Honourable Supreme Court of India commented on the concept of ‘Probation’. In many cases the court allowed the benefit of ‘Probation of Offenders Act’ to the offenders. But, in certain cases the court denied it.
Supreme Court on Probation from 1980-1985
From 1980 to 1985 the Honourable Supreme Court of India had taken diverse opinions regarding probation. In some cases the benefit of ‘Probation of Offenders Act’ was given. But in some other cases, the benefit of the Act was denied after considering the seriousness of the offence.
In State of Maharashtra v. Natwar Lal2, the court did not allow the benefit of Probation of Offenders Act. In that case, the accused was found in possession of smuggled gold biscuits. He was found guilty of the offence under section 135(1) (a) and (b) of the Customs Act. There was a long delay of eleven years in conducting this litigation. But the accused did not get the benefit of the Act. He was awarded with a punishment of 6 months rigorous imprisonment and a fine of rupees 2000 and in default of it to suffer a further imprisonment of four months.
Justice Sarkaria observed: “Undoubtedly, this long delay is a factor which should along with other circumstances, be taken into account in litigation of the sentence”3. He also added that smuggling of gold not only affects public revenue and public economy but often escapes detection. Therefore, the benefit of the Act should not be given to such serious crimes.
In Shriniwas Pandit Dharamadhikari v. State Of Maharashtra4, it was held that if the trial court does not find it expedient to release the appellant on probation of good conduct under Section 4 of that Act, it should then pass proper sentences on the appellant. The sentences must be for the offences of which the appellant has been found guilty.
In many cases the court highlighted the responsibilities of the bar and bench while deciding cases. Those responsibilities include,
1) The Court should collect materials which help to award a just punishment in different circumstances
2) The social background and personal factors of the offender must be considered by the court
3) The Bench should fulfill the humanizing mission of sentencing implicit in such enactments.
When an accused is convicted of an offence punishable with imprisonment for life then the benefit of Probation of Offenders Act cannot be given to him. In Ved Prakash vs. State of Haryana5, The Court held that “sentencing an accused person is a sensitive exercise of discretion and not routine or mechanical prescription acting on hunch”6.
There are lot of cases in which the benefit of probation is given to delinquents. Unfortunately, in our country young generation engage in criminal activities because of the company they keep. Though they are not from a family having criminal antecedents, the peer pressure, circumstances or living conditions may provoke them to commit a crime.
In that situation, if we are punishing them, then it will be causing more problems. The unnatural circumstances in jail may be transforming them into a hardened criminal. Therefore, the court must analyse the age of the offender, his backgrounds, his financial status etc. before take an action against him. The court should not be adopting technical views. Thus the court must give benefits of the Act after considering the situations of an offender. Especially, when the offender is below the age of 21 benefits of Probation of Offenders Act must be given to him.
In Masarullah v. State of Tamilnadu7,the appellant was convicted for offences under Sections 452 and 397 of IPC. He was sentenced to imprisonment of 5 years and 7 years respectively. His appeal to the High Court also failed8.
He belonged to a respectable lower middle class family. His father was a retired school teacher and his brothers and sisters were well settled. His bad company and some crime movies influenced him in committing the crime9. His parents were keen to improve him and supervise him. Therefore the Supreme Court suspended his sentence and he was put under the supervision of his father. The probation officer was also asked to supervise and guide the appellant.
In light of this case which was decided by the honourable Supreme Court of India in 1983, it is clear that the ultimate aim of probation is to reform the offender.
In 1983, the court pronounced another major judgement in which section 4 of the Probation of Offenders Act, 1958 was interpreted. Under Section 4 of the Act, any person who is found guilty of an offence which is not punishable with death or imprisonment for life can be released. The release must be on entering into a bond, with or without sureties, when it is expedient to release him. He must be willing to appear before the court whenever the court call him for his appearance. He must also be willing to receive the punishment. The maximum time period is 3 years and the offender must keep good conduct and peace during that period.
Section 4 further requires that the surety or the offender must have a fixed place of residence or regular occupation in a place where the court exercises jurisdiction. Sometimes, the offender may be under the supervision of a probation officer if necessary. When conditional release is allowed, then the conditions relating to the place of residence, abstention from intoxicants etc. must be fulfilled. It is for ensuring that the crime will not be repeated10.
But, Section 4 should not be mistaken and applied easily in undeserving cases. For example, when a person in early twenties commits rape, then, benefit of the section should not be given to the offender. In Phul Singh v. the State of Haryana11, the court convicted the person and refused the application of probation after considering the heinous nature of the crime. Thus, in certain cases, 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, 195812.
When the crime committed is of minor nature, then also the benefits of this Act can be given. In Keshav Sitaram Sali vs. State of Maharashtra13, the Supreme Court held that in case of minor thefts, the benefit of Section 360 of the Code of Criminal Procedure, 1973 or Section 3 or Section 4 of the Probation of Offenders Act, 1958 must be given rather than imposing fines.
Here in this case, the appellant was a railway employee at Paldhi Railway Station. He abetted stealing of charcoal by a person named Bhikan Murad. The learned Magistrate acquitted the appellant. Then the State Government filed an appeal before the Bombay High Court against the acquittal judgment passed by the learned Magistrate. He was charged with a fine of Rs. 500 and in default of payment, rigorous imprisonment for two months by the Bombay High Court. The honorable Supreme Court decided the case in favour of the appellant, as the subject matter of theft was a quantity of coal valued at Rs. 8, the crime committed is of minor nature.
Thus, in short whenever necessary the court gives benefit of the Act to the offender. But this benefit is not available in serious offences. The benefit of probation can be given to the offender after considering his circumstances and life situations. The unnatural and harsh atmosphere in the prison will only be hardening the offender rather than reforming him. Thus, a better way of reforming the offender is to send him to the normal and peaceful atmosphere in the society.
Supreme Court on Probation from 1985-1990
On examining decisions of Supreme Court from 1985 to 1990 one can see how differently the court decided cases with same issue on the basis of nature of facts. During these years the Court spoke on the scope of Article 311(2) after release on probation.
In the case of Trikha Ram vs. V.K. Seth and Anr14, the appellant was convicted for criminal offence and later on released on probation. In this case the court made a justification by taking into highlight Section12, Probation Offender Act, 1958 which states that if a person released under the provision of Section 3 or Section 4 then he/she shall not suffer disqualification. For this reason a person who is charged as guilty and released on probation shall be removed from service but not dismissed. This is because the punishment of dismissal may disqualify him from future government services.
Similar kind of judgement can be seen in the case, Swarn Singh vs. State Bank of India and another15. In this case the petitioner, an employer in State Bank of India (SBI) was convicted by the court for involving in moral turpitude on committing an offence under Section 61 (1) (a) of the Punjab Excise Act, 1914. The court held that subject to Section 12, Probation Offenders Act, the petitioner shall not be disqualified from further services. The court quoted, clause (a) of second provision to Article 311 (2) of Constitution which refers to the power of government to dismiss a person on the ground of his conviction on a criminal charge. Thus with respect to the above Article the courted added to the judgement that SBI can direct for removal of petitioner from his service as under Section 10(1) b (i) of the Banking Regulations Act, 1949 but shall not dismiss him.
In the case of Shankar Das and Anr vs. Union of India16, Supreme Court had given an emotional verdict after observing the unhappy facts involved. In this case the appellant worked as a cash clerk in a department under Government was charged for Breach of Trust in matter to a sum of Rs. 500.He was charged guilty under Section 409 of Indian Penal Code. Later on he re paid the amount. The court ordered to release him under Section 4 of Probation of Offenders Act while considering the adverse circumstances in which he was placed viz. his son died during this period, his wife was seriously injured and his daughter was suffering with an illness for a period of 8 months.
Later on the grounds of conviction he was dismissed from service. The appellant filed a suit questioning his dismissal but the suit was dismissed stating that the appellant was liable to be dismissed under clause (a) of the second proviso to Article 311 (2) of Constitution. His first appeal to High Court was dismissed however, his second appeal to High Court was allowed by a Single Judge on the ground that by virtue of provision contained in Section 12, Probation Offenders Act.
The judgement of Supreme Court in regard to this case was delivered by Chief Justice, Chandrachud by setting aside the rule of Delhi High Court. The court held the appellant to reinstate in service and that the appellant need to paid full back wage from date of dismissal until reinstated. Further the Court added that the Government of India to pay the cost of suit, First Appeal, Second Appeal which quantified to be about Rs 5000.
In the case of State of Punjab Vs. Mithu Singh17, the Supreme court criticized the High Court of Punjab and Haryana for acting beyond what is mentioned under the respective act.
In this cade the respondent was a boy who was convicted under Section 16 (1) (i) of the Food Adulteration Act and sentenced to rigorous imprisonment for 6 months along with a fine of Rs 1000 in case of default to further undergo imprisonment for one month. The accused appealed before Session judge but session judge dismissed the appeal. Later on the case was revised by High Court of Punjab and Haryana where it was observed that the petitioner was below 21 years of age at the time of commission of offence and he has been facing trial since a long time.
According to Section 20-AA of the Prevention of Food Adulteration Act, a person who committing an offence under the Act and not below 18 years age will not get the benefit under Probation of Offenders Act, 1958 or Section 360 of Code of Criminal Procedure, 1973. However, this rule came with amendment of the Act
The High court suspended the sentence and ordered the accused to be released under Probation of Offenders Act stating that he committed the offence before the said amendment.
The Supreme Court criticized the decision of High Court on releasing the accused under probation for the reason that date of offence was before the date of amendment. However, the Supreme Court did not disturb the order of High Court since the accused has already been released.
Supreme Court on Probation from 1990-1995
In the years 1990 to 1995 judicial developments especially with respect to Probation of offender’s act have not had a significant effect on the probationary jurisprudence as a whole. However, some judgements have been noticed and they are stated as follows:
In Union of India & Ors Vs. Bakshi Ram18, The respondent was a constable in the Central Reserve Police Force who forced entry into a fellow constable’s room and misbehaved with his wife. On the evidence adduced in the case he was found guilty of the charges levied against him. The Department by way of disciplinary action dismissed him from service. This action was taken when his appeal against the conviction and sentence was pending before the Sessions Judge. The learned Judge by judgment dated 22 September 1971 upheld the conviction but released him under the Probation of Offenders Act, 1958 (“the Act”). Apparently, he was released under Section 4 of the Act upon furnishing bonds to keep peace and be of good behaviour for a period of six months. The respondent complied with those conditions. After expiry of the period of good conduct, he moved the High Court with Writ Petition under Article 226 of the Constitution challenging his dismissal from service. The High Court held that “The clear language of Section 12 of the Probation of Offenders Act, 1958 which provides that a person dealt with under the provisions of Section 3 or Section 4 of that Act shall not suffer disqualification, if any, attaching to a conviction under any law, notwithstanding anything contained in any other law.”
Section 12 of the Probation of Offenders Act, 1958 only directs that the offender ‘shall not suffer disqualification, if any, attaching to a conviction of an offence under such law’. Such law in the context is the other law providing for disqualification on account of conviction e.g. if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of section 12 stands re- moved. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. Section 12 does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon 761 as per law. It was not intended to exonerate the person from departmental punishment.
In State of UP v Nanda Kishore Mishra19 while convicting the respondent under the Sections 279, 337, 378, 427 and 304A, I.P.C the Magistrate released him on probation under Section 4 of the U.P. First Offenders Probation Act, 1958 (hereinafter called ‘the Act’). Aggrieved by the said order, the State of U.P. filed an appeal before the High Court under Section 377, Criminal Procedure Code. The High Court on the interpretation of Section 377, Criminal Procedure Code and Section 11(2) of the Act came to the conclusion that no appeal was competent before the High Court.
The respondent has been released on probation Under Section 4 of the Act. The Act itself lays down the procedure for appeal against an order passed by the trial Court under Section 3 or 4 of the Act. Section 11(2) reproduced above specifically provides that an appeal against an order under Section 3 or 4 of the Act shall lie to the Court to which the appeals ordinarily lie from the sentences of the trial Court which obviously means the next superior court in the hierarchy. Ordinarily appeals lie from the sentences awarded by the Magistrate to the Court of Sessions. The High Court was, therefore, justified in holding that the appeal filed by the State of U.P. before the High Court was not competent.
Supreme Court on Probation from 1995-2000
While the number of cases on Probation of Offenders act by the supreme court was deficient. The Apex court decided the two cases that answer essential questions regarding when a person is entitled to probation.
Under Section 3 and 4 of the Prohibition of Offenders Act, the word “expedient” stands for “desirable” and held that the “Court shall construe the term in its fullest context in compliance with the meaning and purpose of the provisions, ultimately stimulating the act positively. As it is strenuous for the individual to reintegrate into society after the jail term’s expiration, the court will then release the offender if it thinks that the sentencing does not do any good.
This was the observation of the honourable supreme court in Dalbir Singh v. The State of Haryana, 2000.20
In this case, the appellant, who was driving a bus belonging to the Haryana Roadways hit a cyclist due to his rash and negligent driving. He was charged with section 279 and section 304-A of the Indian Penal Code 1860. As per section 4 of the Probation of Offenders Act, the appellant’s counsel pleaded before the court to award him probation. The court held the view that it was reasonable for the defendant to be put on probation for his good conduct, provided that it was essential to take into account the circumstances of the case. “The essence of the offence” is one of the events in which the aforementioned view cannot be omitted. Thus, if the court understands the circumstances of the situation, in particular the “character of the crime”, Section 4 will be remedied when the court considers if it is fair and appropriate for the compliance of a given cause that the defendant should be released based on good behaviour. In the given case, the court keeping in mind the rising number of road accidents as a result of rash and negligent driving and the loss suffered by the victim’s family held that for the offence under section 304-A of IPC, the provision under section 4 of the Probation of Offenders act could not be granted. Thus the appeal was dismissed.
In the case of Nilgiris Bar Association v/s T.K.Mahalingam 1997,21 the court held that a person’s mere good conduct does not entitle him to get the benefit of the benevolent provision in the Probation of Offenders Act. In the given case, the accused was held liable for the offence of cheating. The Accused, without any academic qualification or enrolment with any bar, started practising as an Advocate for a period of eight years by manipulating the Nilgiris Bar association into giving him a membership. The accused’s character reflects in the modality in which he indulged in the noble profession by duping everybody concerned. In this case, the benefit of probation was granted to the accused by the Magistrate Court. On appeal, the High Court failed to interfere and tried to console the Bar by directing the accused to pay a sum of Rs. 15,000/- to the Bar Association Library. The Bar council turned down the money and immediately filed a Special Leave Petition to the Apex Court. The Special Leave was granted, and the court held that the accused should indeed be punished for the offence committed as it was necessary to weed out imposters in the legal fraternity. The court also commented on how the accused failed to repent his actions and continued to deceive everyone for eight long years. He even became the secretary of the Bar association. In this case, the accused’s character is reflected in how he deceived those concerned in a noble career. For the same reason, he could not be given the benefit of the benevolent provision in the Probation of Offenders act.
Thus the Magistrate Court’s Order releasing the accused on probation was set aside, and he was sentenced to undergo imprisonment for a period of six months and a fine of Rs. 5,000/- under section 419 and 420 of the Indian Penal Code 1860, respectively.
From the above judgement, we understand that character is also a factor determining whether a person can be granted Probation. The discretion granted to the courts to determine whether a person can be given the benefit of probation is to be used with utmost care after considering a lot of factors.
CONCLUSION
It has been more than six decades since the enactment of The Probation of Offenders Act, 1958, but we can find very few judgments in that respect as we review the sequence of judgments and case laws under which the provisions of this legislation have been invoked. The overarching intent of this statute would shed light on the legislature’s propensity to a restructuring of the criminal justice system where the courts have been allowed to discharge or keep on probation prisoners after due admonition in such matters, according to the other requirements laid down in the act.
Furthermore, under Section 5 of the Prohibition of Offenders Act., the court In monetary terms, the Act will levy a fine for such act as punishment instead of punishing with imprisonment as the case may be and thereby giving him an incentive to succeed in society while abstaining from such acts. In addition, it is interesting that there are fair numbers of cases reported in India that are related to certain minor or trifling crimes or where the overall penalty with or without a fine is less than two or three years. A significant majority of these cases will be settled if the P.O. Act applies specifically to first-time offenders. Nevertheless, judges and courts’ ability to invoke the applicable terms of probation granted under different rules have sadly been limited.
For a country like India, where jails are always overcrowded, with regular violations of human rights that would harden the individual, it would be of great benefit to bring reformative measures like probation into practice. In order to accomplish the ultimate goal of retrieving all offenders back to an orderly society, the transformation and recovery process must be carried out in the sense of existing social conditions. This will only be possible if the judiciary and administrative body work together.
* * * * *
1 TAFT R. DONALD, CRIMINOLOGY 375 (4th ed. 1971).
2State of Maharashtra v. Natwar Lal, 1980 SCR (2) 340
3 State of Maharashtra v. Natwar Lal, 1980 SCR (2) 340
4Shriniwas Pandit Dharamadhikari v. State Of Maharashtra, (1980) 4 SCC 551
5 Ved Prakash vs. State of Haryana, 1981 SCR (1) 1279
6 Ved Prakash vs. State of Haryana : 1981 AIR 643
7 Masarullah v. State of Tamilnadu , AIR 1983 SC 654
8 Aitah Chander v. State of A.P., 1981 (Supp) SCC 17
9 State Of Gujarat vs V.A. Chauhan, AIR 1983 SC 359
10 Ramjani v. State of Rajasthan : 1983 (1) Crimes 1063
11 Phul Singh v. the State of Haryana, AIR 1980 SC 249
12 State Of Gujarat v. V.A. Chauhan, AIR 1983 SC 359
13 Keshav Sitaram Sali v. The State of Maharashtra, AIR 1983 SC 291
14 Trikha Ram v. V.K. Seth and Anr, AIR 1988 SC 285
15 Swarn Singh vs. State Bank of India and another, Special Leave Petition (Civil) No. 7783 Of 1986 | 29-09-1986
16 [1985 ]INSC 53(12 March 1985)
17 State of Punjab Vs. Mithu Singh, Criminal Appeal No. 539 Of 1987 | 19-10-1987
18 Union of India & Ors Vs. Bakshi Ram, 1990 SCC (2) 426.
19 State of UP v Nanda Kishore Mishra, 1991 Cri LJ 456 (SC).
20 Dalbir Singh vs State Of Haryana , 2000 AIR 2000 SC 1677.
21 Nilgiris Bar Association v/s T.K.Mahalingam 1997 INSC 1161.
AUTHORS:
Arya V Nair, 8th sem 5 year Integrated BA LLB, Govt. Law College, Thiruvananthapuram.
Menma Merlin Alexander, 7th sem 5 year BBA LLB, Govt. Law College, Kozhikode.
Hrishikesh Jayasarman, Five year Integrated BA LLB, Kerala Law Academy Law College, Thiruvananthapuram.
David Varghese Thomas, 8th sem 5 year Integrated BA LLB, Govt. Law College, Thiruvananthapuram.
