By Shreyash Mittal
Mahatma Gandhi once said, “Hate the crime, not the criminal.”
The aim of the criminal justice system is the reformation of criminals rather than inflicting punishment on them. Probation is an alternative to the customary form of punishments, where instead of sending the offender into the jail; he is released on the term of good behaviour or may still be under the supervision of the concerned officer as directed by the court. Upon an apprehension of the necessity of a separate act which could deal with probation laws, The Probation of offenders Act, 1958 (Hereinafter, “P.O. Act”) was passed by the Indian Parliament. It confers wide powers on the judges to set free the offender or release him on probation if the judge finds that the matter is of such nature and if the requisites of the provisions within the act are fulfilled. However, it is infelicitous that even after so many years, the legislation has not acquired the sort of recognition it warranted.
Concept of Probation
In India, the earliest provision which dealt with the probation was Section 562 of the erstwhile Code of Criminal Procedure, 1898. However, after the amendment of 1974, that concept is now present under Section 360 of the Code of Criminal Procedure, 1973 (Hereinafter, “CrPC”). It is the concept that started flourishing in the nineteenth century itself. The United States of America and the United Kingdom are considered to be expounding nations which categorically came up with probation laws. Several developed nations are incessantly carrying on principles of probation exultantly while dealing with the cases which might be abominable in nature considering the character of the offender and his age, nature of crime took place and the circumstances in which the offence was committed. India can also choose the same path when it already has a separate act in that regard while greatly emphasizing on the system of reformative justice.
Out of this small but crucial piece of legislation, the heart and soul of this act can be said to be Sections 3 and 4. Section 3 of P.O. Act provides the power to the court to release an offender after due admonition instead of sentencing him to imprisonment if it finds that it is expedient to do so, provided that:
- The person does not have any previous conviction record.
- The punishment for the offence committed shall not exceed two years imprisonment or fine or with both under IPC or any other law.
- The nature of the offence committed and the character of an offender.
- The circumstances in which the offence was committed.
Section 4 of the Act is much wider than the preceding section and it reads that an offender found guilty of having committed an offence not punishable with death or imprisonment for life, subject to the same proviso under Section 3 as aforementioned, the court instead of awarding a sentence of imprisonment, can release him on probation of good conduct on him entering into a bond with or without sureties and appearing and receiving sentences when called upon during such period (maximum of three years), provided that he maintains peace and good behaviour, if the court finds it expedient to do so. The Hon’ble Apex Court in Dalbir Singh v. State Of Haryana observed that the expression “expedient” under Section 3 and 4 of P.O. Act stands for “desirable” and held that the “Court must construe the said word in keeping with the context and object of the provisions in its widest amplitude, eventually stimulating the act positively.” Since, the aftermath of completion of prison sentence makes it strenuous for the person to integrate in the society again; thus, the court can release the offender, in case it feels that sentencing would do no good.
A disregarded legislation
The Hon’ble Supreme Court of India in Jugal Kishore Prasad v. State of Bihar stated that “the object of the Act is to prevent the conversion of youthful offenders into hardened criminals, while mingling and staying with other hardcore criminals in the jail in case they are sent to jail.”
However, it’s been more than six decades since the enactment of The Probation of offenders Act, 1958, but as we look into the series of judgments and case laws in which the provisions of this legislation has been invoked, we will find very few judgments in that regard. The underlying aim of this legislation will shed light on the inclination of legislature towards a reformative criminal justice system where the courts have been empowered to release the offenders after due admonition or to put them in probation, in certain matters provided therein subject to the other conditions laid down in the act. Moreover, the court under Section 5 of P.O. Act can impose some fine for such act in monetary terms as to compensation instead of sentencing imprisonment as the case may be and thereby conferring an opportunity to him to prosper in the society while refraining from such activities.
Furthermore, it is noteworthy that there are fair numbers of cases that get registered in India which are related to some petty or trifling offences or where the maximum sentence is less than two/ three years with or without fine. A large chunk of these cases can be resolved if the provisions of P.O. Act is applied particularly involving first-time offenders, however, the inclination of judges and courts towards invoking the relevant provisions of probation given under various laws has been minimal, woefully.
It is not to be denied that releasing the offender requires a considerable sense of responsibility and it shouldn’t eventually cause the misuse of the sections. To address this, a criminal court must conduct an independent analysis in each case based on the facts. Different components like the age of the lawbreaker, his economic wellbeing, his background, and forerunners if any, whether he is an affirmed criminal or not, whether there is any chance of his renewal and restoration or whether it is where the reorganization is incomprehensible, whether there is any possibility of his reformation and rehabilitation or whether the accused is likely to revert to such crimes in future, must be kept into mind, and perhaps it would affirm the true utilization of provisions of P.O. Act.
The Hon’ble Supreme Court in one of its judgments of State Through Police Inspector v. Shaikh Mohammad Rafiq S/O Shaikh Amrul Hassan, observed “The P. O. Act is still in force, but 50 years down the line with ever-increasing crime rate, the benefits of the P.O. Act, by the judicial trend, is not being extended to a large number of cases. This is not to say that it ought not to be extended in appropriate cases… The benefits have not been encouraged in cases involving socio-economic offences, offences involving sex perversity cases involving moral turpitude or moral delinquency, cases involving misappropriation of property, gold smuggling, food adulteration offences, offences under Prevention and Corruption Act, and even in cases under Section 304A of IPC.” It categorically summed up the understanding adopted by the courts in connection to the application of the P.O. Act.
Conclusion and Suggestions
The intent of this act seems to be unattainable considering the present scenario. However, the court’s vigorous approach (as it took recently in case of Jai v. State of Punjab) towards the application of provisions of P.O. Act on the relevant cases can prove to be beneficial from several socio-legal aspects. Granting the benefit of probation would contribute to the efforts to reduce the problem of overcrowding in jails which eventually will also provide a shield to the fundamental rights of inmates. Furthermore, to ensure efficiency in the working of probation officers, they should be trained as per the guidelines of United Nations Standard Minimum Rules for Non-Custodial Measures, since, the report of probation officer play a decisive role in the court for granting probationary benefits to the offender.
It is to be noted that children are more likely to lose the right path because of their lack of critical ability to think, and they might commit an offence. Furthermore, their association with hardened criminals in jail is also perilous as contemplated above. Therefore, an arrangement must be made for mandatory consideration of provisions of P.O. Act and, perhaps not a mandatory application, where the offenders are children. Moreover, an amendment can be brought that makes it mandatory for the judiciary to lay down the grounds as to why the benefit of probation must not be given, on the lines of Section 361 of the CrPC as it presently provides for the writing of special reasons by the courts only where there is an application of probation laws in a particular case.
To conclude, it can be said that unless an honest attempt is made to implement this crucial legislation, its object cannot be achieved. Furthermore, the coordination amongst judges, probation officers, and administration is of paramount importance without which P.O. Act cannot work efficiently and effectively. A proper implementation of P.O. Act shall also truly accomplish the object of the reformative justice system in India.
[The author is a third-year student at National Law University, Nagpur.]