CODE OF CRIMINAL PROCEDURE

Internal Assignment on Probation of

KARTHIK KUMAR G.S.

The earlier penological approach held imprisonment, that is, custodial measures to be the only
way to curb crime. But the modern penological approach has ushered in new forms of
sentencing whereby the needs of the community are balanced with the best interests of the
accused:

compensation, release on admonition, probation, imposition of fines, community service are

The term Probation is derived from the Latin word probare, which means to test or to prove. It
is a treatment device, developed as a non-custodial alternative which is used by the magistracy
where guilt is established but it is considered that imposing of a prison sentence would do no
good. Imprisonment decreases his capacity to readjust to the normal society after the release
and association with professional delinquents often has undesired effects.

According to the United Nations, Department of Social Affairs, The release of the offenders
on probation is a treatment device prescribed by the court for the persons convicted of offences
against the law, during which the probationer lives in the community and regulates his own life
under conditions imposed by the court or other constituted authority, and is subject to the
supervision by a probation officer. The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary help and guidance to the
probationer in his rehabilitation and at the same time the threat of

being subjected to unexhausted sentence acts as a sufficient deterrent to keep him away from
criminality. The United Nations recommends the adoption and extension of the probation
system by all the countries as a major instrument of policy in the field of prevention of crime
and the treatment of the offenders.

In this paper, the focus is on the legislative and administrative aspects of probation, and means
by which probation may be made more effective in India.
Law of Probation In India

Section S.562 of the Code if Criminal Procedure, 1898, was the earliest provision to have dealt
with probation. After amendment in 1974 it stands as S.360 of The Code of Criminal
Procedure, 1974. It reads as follows:- When any person not under twenty-one years of age is
convicted of an offence punishable with fine only or with imprisonment fro a term of seven
years or less, or when any person under twenty-one years of age or any woman is convicted of
an offence not punishable with death or imprisonment for life, and no previous conviction is
proved against the offender, if it appears to the Court before which he is convicted, regard
being had to the age, character or antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the offender should be released on probation
of good conduct, 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.

S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of
probation. The object of probation has been laid down in the judgment of Justice Horwill in In
re B. Titus : S. 562 is intended to be used to prevent young persons from being committed to
jail, where they may associate with hardened criminals, who may lead them further along the
path of crime, and to help even men of mature years who for the first time may have committed
crimes through ignorance or inadvertence or the bad influence of others and who, but for such
lapses, might be expected to make good citizens. In such cases, a term of imprisonment may
have the very opposite effect to that for which it was intended. Such persons would be
sufficiently punished by the shame of having committed a crime and by the mental agony and
disgrace that a trial in a criminal court would involve.

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. Both the Act and
S.360 of the Code exclude the application of the Code where the Act is applied. The Code also
gives way to state legislation wherever they have been enacted.
Section 4 of the Act provides for probation.

S.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.

S. 6 of the same Act lays special onus on the judge to give reasons as to why probation is not
awarded for a person below 21 years of age. The Court is also to call for a report from the
probation officer before deciding to not grant probation.

The provision under the Code and the Act are similar, as they share a common intent, that,
punishment ought not to be merely the prevention of offences but also the reformation of the
offender. Punishment would indeed be a greater evil if its effect in a given case is likely to
result in hardening the offender into repetition of the crime with the possibility of irreparable
injury to the complainant instead of improving the offender.

Yet there are a few differences, which have been enumerated below. S.4 of Probation of
Offenders Act S.360 of The Cr.P.C.

Any person may be released on probation, if he has not committed an offence punishable with
death or imprisonment for life.(No distinction is made on ground of sex or age) Any person not
under 21 years of age, if convicted of an offence punishable with imprisonment for not more
than 7 years or when any person under 21 years of age or any woman is convicted of an offence
not punishable with death or imprisonment for life may be released on probation. It is not
necessary that the person must be a first offender. This section applies only when no previous
conviction is proved against the offender.
Any magistrate may pass an order under this section. Magistrate of the third class or of the
second class not specifically empowered by the state government had to submit the proceeding
to Magistrates of the first class or Sub-Divisional magistrates. Supervision order may be passed
directing that the offender shall remain under the supervision of a Probation Officer. No such
provision.

Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000
also provides for the release of children who have committed offences to be released on
probation of good conduct and placed under the care of any parent, guardian or other fit person,
on such parent, guardian or other fit person executing a bond, with or without surety, or any fit
institution as the Board may require, for the good behaviour and well-being of the juvenile for
any period not exceeding three years.

Procedure For Probation Service

S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that the judge would consider the
report of the probation officer before deciding on whether to grant probation. S. 14 of the said
Act lays down the duties of the Probation Officers.

The pre-sentence report of the Probation Officer is the fundamental document for the guidance
of the Court whether to grant the benefit of probation to the accused or not. The object of the
pre-sentence report is to appraise the court about the character of the offender, exhibit his
surroundings and antecedents and throw light on the background which prompted him to
commit the offence and give information about the offenders conduct in general and chances
of his rehabilitation on being released on probation.

The judge may also pass a supervision order under section 4(3) of the Act, whereby the offender
is placed under the supervision of a probation officer and certain conditions are imposed upon
him. This is mostly in the form of regular visits to the supervising officer. Some of the
conditions which must be followed have been laid down in S. 4(4). On the application of the
probation officer such conditions may be varied- S. 8(2) and also the offender may be
discharged- S. 8(3). If the offender fails to follow the conditions laid down by the Court, the
original sentence against him may be revived S. 9.
The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the report of a
probation officer or a recognized voluntary organization to be considered before passing a
sentence. The Magistrate appointed as a member of the Board constituted under this Act must
know something of child psychology. The Board would pass orders against a juvenile. The Act
provides for the setting up of Observation and Special Homes by the State Government where
the juvenile could be placed. Here the rehabilitation and social integration of the child would
take place. It also provides for an After care programme which would take care of the
delinquent child after he has been discharged from these homes, based on the report of the
Probation Officer. The Probation officers appointed under the probation of Offenders Act
would also function under the Juvenile Justice (Care and Protection of Children) Act.

Probation in India is mostly dependent on the policies of the State rather than a uniform Central
Policy. In Karnataka a State level Probation Advisory Committee has been constituted with
High Court Judge as Chairman with official and non-officials as members. A District level
Probation Advisory Committee has been constituted in each district consisting of the District
and Sessions Judge as Chairman with official and non-officials as members. After Care
Programmes have been set up to improve the lives of those released on probation.

The After Care Programme, in Kerala, is intended to rehabilitate released prisoners and
probationers coming under the supervision of District Probation Officers. By utilizing this
amount they can engage in small scale income generating activities. The amount of assistance
is Rs.10,000/- per head. If the amount is insufficient for meeting the expenses this can be
attached with some bank loan. Department of Juvenile Welfare and Correctional Services was
set up in Andhra Pradesh in 1990. It gives the following probation services taking care of
probationers released by the courts and ex-convicts, released juveniles, after-care work,
counseling and guidance to reform themselves and not to revert to crime and for their
rehabilitation through Govt. Welfare Agencies.

Benefits of Probation Service

It serves the needs of the probationer in the following manner: -

Probation keeps the offender away from the criminal world. Further, the fear of punishment in
case of violation of probation law has a psychological effect on the offender. It deters him from
law breaking during the period of probation. Thus probation indirectly prevents an offender
from adopting a revengeful attitude towards the society. Moreover, sentencing an offender to
a term of imprisonment caries with it a stigma, which makes his rehabilitation in society
difficult. The release of the offender on probation saves him from stigmatization and thus
prepares him for an upright living. The shame of going through a trial process would have
sufficiently chastised him. According to the labeling theory, a stigmatizing label once applied,
is very likely to cause further deviance or create the deviance. People tend to conform to the
label even when they didn't set out that way.

Probation seeks to socialize the criminal, by training him to take up an earning activity and
thus enables him to pick up those life-habits, which are necessary for a law-abiding member of
the community. This inculcates a sense of self-sufficiency, self-control and self-confidence in
him, which are undoubtedly the essential attributes of a free-life. The Probation Officer would
guide the offender to rehabilitate himself and also try and wean him away from such criminal
tendencies.

Before the implementation of probation law, the courts were often confronted with the problem
of disposing of the cases of persons who were charged with neglect of their family. In such
cases there was no alternative but to send them to prison, which was an unnecessary burden on
the State exchequer. With the introduction of probation as a method of reformative justice, the
courts can now admit such offenders to probation where they are handled by the competent
probation officers who impress upon them the need to work industriously and avoid shirking
their family responsibilities.

An analysis of crime statistics would show that a large segment of offenders consists of the
poor, the illiterate and the unskilled. Such offenders are seen to be victimized twice: once, when
they are denied of their basic human needs in open society and forced to live in a sub-culture
of social marginality, and, again, when they are grinded in the mill of criminal justice for having
infringed the law. Probation would thus be an effective means to deliver justice to them, they
would not be incarcerated and also they would be trained which would improve their life later.

The society is also served. The object of society that all its members playing a positive role by
seeking their self-rehabilitation is achieved by the probation system, it is indeed an effective
method of preserving social solidarity by keeping the law-breakers well under control. Also,
during the probation period, the offender is sent to various educational, vocational and
industrial institutions where he is trained for a profession which may help him in securing a
livelihood for himself after he is finally released and thus lead an absolutely upright life. And
whatever work an offender is doing as a probationer, he is contributing to the national economy.
Thus, he no longer remains a burden on the society.

Further, correctional task of probation staff requires closer contact with inmates during his
period of probation. This helps the probation supervisor to get a deeper insight into the real
causes of crime and suggests remedies for their eradication.

Criticisms Against the Concept of Probation and Their Counter

There are some critics who look at probation as a form of leniency towards the offenders. To
quote Dr. Walter Reckless , probation like parole, seems to the average laymen a sap thrown
to the criminal and a slap at society. Probation is still generally perceived as a lenient approach
rather than a selective device for the treatment of offenders who are no threat to public safety.
Probation system lays greater emphasis on the offender and in the zeal of reformation the
interests of the victim of the delinquents are completely lost sight of. This obviously is against
the basic norms of justice. Keeping in view the increasing crime rate and its frightening
dimensions, it is assumed that undue emphasis on individual offender at the cost of societal
insecurity can hardly be appreciated as a sound penal policy. Some criticize probation because
it involves undue interference of non-legal agencies in the judicial work which hampers the
cause of justice.

Further, when non-custodial correctional measures are used arbitrarily, without being resorted
to on objective grounds, there is danger of men of means taking undue advantage and abusing
the system as against those who would really deserve but have no advocacy or support, and of
the whole approach becoming counter-productive and coming into public disrepute.

The answers to these criticisms would lie in the fact that the aim of the criminal justice system
is to correct the offender and for some offences this would be best done outside the prison.
Further, laying down strict guidelines to determine when probation should be awarded would
defeat the very purpose of the concept. The broad parameters laid down age of the offender,
surrounding circumstances, nature of the offence, etc. provide a broad framework for the judge
to apply his discretion. It would also defeat the purpose if probation has to be granted when
certain conditions are satisfied, if for example the facts on record show clear pre-meditation to
do a wrongful act.
Responding to the other criticism, it is essential that non-legal agencies, namely probation
officers, interference is only meant for smooth functioning, and also it is not mandatory for the
judge to consider using the probation officer always. He may not ask for a pre-sentence report,
may not put the offender under supervision.

Problems in the Practical Implementation of Probation in India

S. 6 of the Probation of Offenders Act, which makes it easier for a person below 21 years of
age to benefit from probation. This is regardless of their antecedents, personality and mental
attitude. It might lead to recidivism because many of them may not respond favourably to this
reformative mode of treatment. Also, in many cases it is difficult to ascertain whether the
delinquent is a first offender or a recidivist.

The Probation of Offenders Act, in sections 4(2) and 6(2), lays down that report of the probation
officer is considered before awarding probation. But, the Courts generally have shown scant
regard for the pre-sentence report of the probation officer because of lack of faith in integrity
and trustworthiness of the Probation Officers. In their view calling for the pre-sentence report
would mean unnecessary delay, wastage of time, undue exploitation of the accused by the
probation officer and likelihood of biased report being submitted by him, which would
jeopardize the interest of the accused and would be contrary to the object envisaged by the
correctional penal policy.

On personal interview with some judicial officers and probation officers, conducted by Abdul
Hamid, it has come to light that neither judicial officers feel it desirable to get report from the
probation officers, nor the probation officers feel it obligatory on their part to submit their
reports in the courts unwarranted.

Section 4 of the Probation of Offenders Act does not make supervision of a person released on
probation mandatory when the court orders release of a person on probation on his entering
into a bond with or without sureties. This is not in accordance with the probation philosophy,
which considers supervision essential in the interests of the offender, against corrective justice.

The lower judiciary in India has not at all taken into consideration the objects and reasons of
this act, while applying its discretion in regard to grant of probation. In an umpteen number of
cases the accused had to move the High Court and even the Supreme Court to get the relief of
probation. If an accused gets relief of probation only in the High Court or the Supreme Court
after passing through the turmoil of a long and cumbersome judicial process, he would,
psychologically, be diverted towards hardened ness and the whole purpose of the Act would
be forfeited.

Variation or discharge of the probationer is based solely on the report of the probation officer;
this leaves the probationer at the mercy of the Probation Officer.

The after probation services are not very effective. Thus, even considering that a sentence of
probation has been passed and the offender is placed under supervision it is nothing more that
a regular visit to the officer. There is no scientific process of rehabilitation and the Probation
Officers arent adequately trained. They are recruited between 20 and 26 years of age. They are
grouped into districts and supervised by a state/provincial chief. There is no in-service training
and occasional refresher courses, and thus they are not adequately trained.

Further, often there is a lack of interest for social service among the probation personnel. Lack
of properly qualified personnel, want of adequate supervision and excessive burden of
casework are attributed as the three major causes of inefficiency of the probation-staff.

Conclusion

The object of the criminal justice system is to reform the offender, and to ensure the society its
security, and the security of its people by taking steps against the offender. It is thus a
correctional measure. This purpose is not fulfilled only by incarceration, other alternative
measures like parole, admonition with fine and probation fulfill the purpose equally well. The
benefit of Probation can also be usefully applied to cases where persons on account of family
discord, destitution, loss of near relatives, or other causes of like nature, attempt to put an end
to their own lives.

Thus while concluding it can be said that the concept of Probation would be effective only
where the judiciary and the administration work together there must be a common
understanding between the Magistrate (or) Judge and the Probation Officer. Probation would
be effective only when there is a sincere attempt made to implement it. It would be of great
benefit for a country like India, where the jails are often overcrowded, with frequent human
rights violations which would harden the human inside a person. Probation is an affirmation of
the human inside every being and it must be given de importance.