This articles has been written by Ms. Khyati Kanoje, a student studying B.A.LL.B (H.) from Narsee Monjee Institute of Management, NMIMS, Indore. The author is a 3rd year law student.
In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation officers to be appointed who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused during the period of his probation.
The beginning of probation is found in old Section 562 of Criminal Procedure Code, 1923, and presently it is in form of Section 360 and 361 of Criminal Procedure Code which makes makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation.
In India, probation is a form of non-custodial sentence available to offenders who have been convicted of certain offenses, where the court suspends the sentence of imprisonment and releases the offender on probation. The probation order sets out the terms and conditions of probation, which the offender must comply with during the probation period.
The purpose of probation is to provide an opportunity for the rehabilitation of the offender and to prevent the recurrence of the offense. It is an alternative to imprisonment, which allows the offender to remain in the community, subject to certain conditions and restrictions.
Under the Indian justice system, probation is governed by the Probation of Offenders Act, 1958, which sets out the framework for the grant of probation and the role of probation officers. The probation officer is responsible for supervising the offender during the probation period, monitoring compliance with the conditions of probation, and reporting any violations to the court.
Probation is generally granted for a period of one to three years, depending on the nature and severity of the offense, and may be subject to conditions such as reporting to the probation officer, undergoing counseling or treatment, refraining from alcohol or drug use, and maintaining employment or education. If the offender successfully completes the probation period, the court may discharge the offender and the conviction may not appear on the offender’s criminal record.
Regular Probation: This is the most common form of probation, where the court suspends the sentence of imprisonment and releases the offender on probation subject to certain conditions. The probation period is generally between one to three years, and the conditions of probation may include reporting to the probation officer, refraining from drug or alcohol use, undergoing counseling or treatment, and maintaining employment or education.
- Suspended Sentence:
Under this form of probation, the court suspends the sentence of imprisonment, but instead of releasing the offender on probation, the offender is placed under the supervision of a probation officer. The probation officer is responsible for ensuring compliance with the conditions of probation, and if the offender violates any of the conditions, the court may revoke the suspended sentence and order the offender to serve the original sentence.
- Community Service
This form of probation involves the offender performing community service as a condition of probation. The court may order the offender to perform a specified number of hours of community service, which may involve activities such as cleaning public areas, working in a charity organization, or helping in a hospital. The probation officer is responsible for supervising the community service and ensuring that the offender complies with the conditions of probation.
If the offender violates any of the conditions of probation, the probation officer may file a report with the court, stating the nature and extent of the violation. The court may then issue a summons or warrant against the offender, and after hearing both sides, may take one of the following actions:
- Revoke probation and order the offender to serve the original sentence.
- Modify the conditions of probation and impose additional conditions.
- Extend the probation period for a further period, subject to additional conditions.
- Suspend the probation and order the offender to be taken into custody.
In some cases, the court may also impose a fine or a period of imprisonment in addition to the above actions, depending on the nature and severity of the violation.
The fines or restitution payments that may be imposed as a consequence of a probation violation depend on the specific circumstances of the case and the jurisdiction in which the offense occurred. These fines or restitution payments are typically established by the law of the jurisdiction in which the offense occurred and are based on the severity of the violation.
In India, probation is not a widely used form of punishment. However, the concept of probation is present in the Indian Penal Code (IPC) under Section 360. Section 360 of the IPC provides for the release of certain offenders on probation of good conduct. The terms of probation in India may include conditions such as regular reporting to the probation officer, abstaining from alcohol or drugs, and completing community service hours.
How does probation violations happen:
Generally, a probation violation occurs when you ignore, avoid, deny or violate your probation terms at any time during the probation period. Probation usually runs for one to three years, but can last for several years depending on the original offense.
Probation can be violated in many ways. Circumstances leading to probation violation are as follows:
- Not appearing during the scheduled court appearance on a specific date and time;
- Did not report to your probation officer at the scheduled time or place;
- Not paying the necessary fines or restitution (to the victims) as ordered by the court;
- Going to certain persons or places or traveling out of state without the permission of your probation officer;
- Possession, use or sale of illicit drugs;
- Committing other crimes or offenses; And
- Arrest for another crime, whether guilty or not.
Who grants Probation
Probation is granted by the court that convicts the offender. In India, the power to grant probation is vested with the trial court, which has the discretion to suspend the sentence of imprisonment and release the offender on probation, subject to certain conditions. The court considers various factors, such as the nature and gravity of the offense, the character and antecedents of the offender, and the likelihood of the offender committing the offense again, before deciding whether to grant probation. Once probation is granted, the court sets out the terms and conditions of probation, which the offender must comply with during the probation period. The probation officer is responsible for supervising the offender during the probation period and reporting any violations of the conditions of probation to the court.
The conditions for granting probation may vary depending on the nature and circumstances of the offense, as well as the offender’s personal and criminal history. However, some common conditions for granting probation in India include:
- Reporting to the probation officer regularly and as required by the court
- Refraining from committing any further offenses during the probation period
- Undergoing counseling or treatment for substance abuse or other issues, as recommended by the probation officer
- Maintaining gainful employment or pursuing education or training
- Refraining from leaving the jurisdiction without the permission of the probation officer or the court
- Paying restitution or compensation to the victim or their family, if applicable
- Submitting to random drug tests or other monitoring as directed by the probation officer or the court.
These conditions are intended to help the offender to reform and rehabilitate, as well as to protect the community from further harm. The court has the discretion to set the conditions of probation, and may modify or add to them during the probation period if necessary. If the offender violates any of the conditions of probation, the court may revoke probation and order the offender to serve the original sentence of imprisonment.
Landmark Cases
In a 3-Judge Bench of Hon’ble Supreme Court in the case of Daulat Ram Vs. The State of Haryana (1972 Cri LJ 1517), has laid down that Section 6 of The Probation of Offenders Act places restrictions on the court’s power to sentence a person under 21 year of age for the commission of crimes mentioned therein unless the court is satisfied that it is not desirable to deal with the offender under Sections 3 and 4 of the Act. The court is also required to record reasons for passing sentence of imprisonment on such offender.
Hon’ble Supreme Court in judgment Sudesh Kumar Vs. State of Uttarakhand (AIR 2008 SC 1120) by observing that, “the relevant date for determining applicability of the Act 6 Workshop is the date on which the accused is held guilty i.e. the date of judgment and not the date of commission of offence. In this respect provisions of the Act and the provisions of Juvenile Justice Act differ as the object of both the Acts are different. Under the Juvenile Justice Act the date of commission of offence is the relevant date whereas under the Probation of Offenders Act the date of judgment is relevant.”
In State of Maharashtra Vs. Bondya Patil 1978 Cri. L.J.41 Hon’ble Bombay High Court emphasized the importance of Probation Officer by observing that,“The Probation Officer is an important officer in the machinery for the implementation of the Act. The post is created to assist the courts in the matter of probation. There is, therefore, no reason why his services should not be availed of before the order for probation is passed. It is essential that his services should be utilized, for otherwise important material relevant to be considered will not be available to the Court at all. It is, therefore, very essential that the Courts should not, in order to hasten up the disposal of the cases, dispense with the calling for a report and give the benefit of Section 4 to the offenders without there being sufficient material on record before them.”
In Kamroonissa Vs. The state of Maharashtra (AIR 1974 SC 2117) the Hon’ble Supreme Court observed that, if the accused is a habitual offender, it is not desirable to extend him benefit of Probation of Offenders Act.
Conclusion
Probation purpose is to reform the culprit and put him on the right track. As stated earlier, this can be achieved not only through legislative action but also with the integrity of the administration. In some parts of the country it is implemented in the right sense.
Eligibility success is entirely in the hands of the state government and the resources it allocates to projects. Resources are needed to hire trained probation officers, to set up homes for those with qualifications, and for their training in addition to others.
Therefore, it can be said that the concept of ethics is only effective where the judiciary and the administration work together, and there must be a common understanding between the magistrate (or) judge and the probation officer. Probation is only effective when there is an honest effort to implement it. This can be very beneficial for a country like India where prisons are often overcrowded and frequent human rights violations make it difficult for a person within a person. Morality is the commitment of man to every human being, to which importance must be given.
REFERENCES