Probation in Petty Offences

Meaning of probation:

Probation is an alternative to imprisonment, and is considered the most viable sentencing option
for juveniles, young offenders, first time and petty offenders and even repeat offenders. The
purpose of probation is a reform of the offender by means that are alternative to punishment such
as admonition, constructive treatment, conditions of good conduct, and supervision rather than
punishment and incarceration, by which, offenders, instead of being sent to jail, are put under the
care of a Probation Officer by the Court, thus saving them from stigma and influence of
hardened criminals. While infliction of punishment has as its objective the suffering of the
offender, probation is intended at reformation and re-socialization in line with the reform of the
penal system. It is guided by the belief that many offenders are not dangerous criminals but have
acted in misfortune, improvidence, misguidance, and have landed in conflict with law.

Incarceration can have a negative impact on offenders, especially, if they are juvenile or first
time offenders because they are likely to come in contact with criminals charged with serious or
heinous offences when sent to jail. This, in turn, can lead to the possibility of a relapse into crime
and even hardening of personality rather than improving social behavior. Probation is intended as
a non- custodial treatment for those offenders who are likely to not re-offend if appropriate
supervision is provided.

Who is a petty offender or what constitutes a petty offence?

A “petty offence” has not been defined anywhere, either in the Indian Penal Code (IPC), Code
of Criminal Procedure (Cr.P.C) or the Evidence Act. Criminal justice institutions and legal
fraternity, in their common parlance, use this expression to mean offences which are bailable or
non-cognizable or compoundable or punishable with short term imprisonment with or without
fine, or with fine alone. Anyone charged under such sections is considered a petty offender.
Sections 27 and 27(2) of the Code of Criminal Procedure (Cr.P.C), 1973 initially referred to such
petty offences and the ‘jurisdiction of courts in case of offences committed by juveniles’ but
these sections, have, since the Juvenile Justice Act (Care and Protection) Act, 2000, came into
force become redundant but been absorbed in the JJ Act of 2000.

List of Petty offences:

1. Needlessly pulling the emergency alarm chain in a train
2. Downloading or uploading pirated movies, music or software
3. Use of crash guards on cars or two-wheelers
Installation of crash guards, a.k.a. bull guards, on vehicles is an offence under section 52 of
the Motor Vehicles Act, 1988.The Ministry of Road Transport and Highways has ordered the
transport commissioners of all states and union territories to take actions against the
unauthorized use of such fitments through a notification (dated 07/12/2017).
4. Smoking in public places
5. Voting as another person or voting twice at the election
6. Possessing multiple PAN cards
7. Stalking women
8. Trespassing into a stranger’s house
9. Throwing stone/wood/or any other thing at a train
Section 150 of the Railways Act, 1989 makes throwing a stone, wood or any other object at or
across any railway punishable by imprisonment for life or rigorous imprisonment for up to ten
years.

10. Simple Assault

11. Theft

12. Drunk and Drive

13. Driving Vehicle without License

14. Defamation

15. Printing or sale of defamatory matter

16. Criminal intimidation, annoyance, insult.

 17. Food adulteration

Offences which were heinous in nature now considered as petty offence:

In 1723 a system known as the Bloody Code was established in Britain, which imposed the death
penalty for over 200 offences – many of which were surprisingly trivial. 

 arson
 forgery
 cutting down trees
 stealing horses or sheep
 destroying turnpike roads
 stealing from a rabbit warren
 pick pocketing goods worth a shilling
 being an unmarried mother concealing a stillborn child
 stealing from a shipwreck
 wrecking a fishpond

Offences which were petty but now heinous crimes:

 Treason
 Qualified piracy
 Qualified bribery
 Kidnapping and serious illegal detention
 Robbery with violence
 Destructive arson
 Importation, distribution, manufacturing and possession of illegal drugs
 Violation of traffic Rules

Statutory provisions on probation:

Section 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. S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit
of probation.

360. Order to release on probation of good conduct or after admonition.-

When any person not under twenty-one years of age is convicted of an offence punishable with
fine only or with imprisonment for 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 behavior:

Object of Section 360

Section 360 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 more 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 be good citizens. It is not intended that this section should be applied to
experienced men of the world who deliberately flout the law and commit offences.

In Jugal Kishore Prasad v. State of Bihar

  The Supreme Court explained the rationale of the provision:

“The object of the provision is to prevent the conversion of youthful offenders into obdurate
criminals as a result of their association with hardened criminals of mature age in case the
youthful offenders are sentenced to undergo imprisonment in jail.”

Probation of offenders Act 1958:

Section 3
Power of court to release certain offenders after admonition.
When any person is found guilty of having committed an offence punishable under section 379
or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of
1860) or any offence punishable with imprisonment for not more than two years, or with fine, or
with both, under the Indian Penal Code, or any other law, and no previous conviction is proved
against him 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 so to do, then, notwithstanding anything contained in any other law for
the time being in force, the court may, instead of sentencing him to any punishment or releasing
him on probation of good conduct under section 4 release him after due admonition.

Section 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.

Salient Features of the Probation of Offenders Act, 1958

 The Probation of Offenders Act (Act No. 28 of 1958) contains elaborate provisions
relating to probation of offenders, which are made applicable throughout the country. We
will now observe the salient features of the Act:-
·The Probation of Offenders Act, 1958 is intended to reform the amateur offenders by
providing rehabilitation in society and to prevent the conversion of youthful offenders
into obdurate criminals under environmental influence by keeping them in jails along
with hardened criminals.

·It aims to release first offenders, after due admonition or warning with advice, who are
alleged to have committed an offence punishable under Sections 379, 380, 381, 404 or
Section 420 of the Indian Penal Code and also in case of any offence punishable with
imprisonment for not more than two years, or with fine, or with both.

·This Act empowers the Court to release certain offenders on probation of good conduct
if the offence alleged to have been committed is not punishable with death or life
imprisonment. However, he/she should be kept under supervision.

·The Act insists that the Court may order for payment by the offender such compensation
and a cost of the proceedings as it thinks reasonable for loss or injury caused to the
victim.

·The Act provides special protection to persons under twenty-one years of age by not
sentencing them to imprisonment. However, this provision is not available to a person
found guilty of an offence punishable with life imprisonment.

·The Act provides freedom to the Court to vary the conditions of bond when an offender
is released on probation of good conduct and to extend the period of probation not to
exceed three years from the date of original order.

·The Act empowers the Court to issue a warrant of arrest or summons to the offender and
his sureties requiring them to attend the Court on the date and time specified in the
summons if an offender released on probation of good conduct fails to observe the
conditions of bond.

·The Act empowers the Court to try and sentence the offender to imprisonment under the
provisions of this Act. Such order may also be made by the High Court or any other
 Court when the case comes before it on appeal or in revision.

 ·The Act provides an important role to the probation officers to help the Court and to
supervise the probationers put under him and to advise and assist them to get suitable
employment.

·The Act extends to the whole of India except the State of Jammu and Kashmir. This Act
comes into force in a State on such date as the State Government may, by notification in
the Official Gazette, appoint. It also provides liberty to State Governments to bring the
Act into force on different dates in different parts of that State

Admonition & Probation:

Firstly, the Act introduces two methods for release with different treatment for first time petty
and other serious or repeat offenders – (1) Admonition and (2) Probation.

Method 1 – Admonition for first time petty offenders.

The Section 3 of the Act deals primarily with the treatment of first-time petty offenders found
guilty of certain specified offences or offences punishable with not more than two years of
imprisonment. It provides for release of such offenders after due admonition.

What is admonition and when is it given?

An admonition is like a scolding and is given to a first time offender before releasing him and
always accompanied with a verbal direction by the magistrate not to repeat any offence in future.
It is the duty of the magistrate as well as of the legal counsel to warn the first time offender
receiving the benefit of Section 3 that this disposition will debar him from any consideration
under this Section of the Act if he repeats a crime. Since Section 379, 380, 381, 404, 420 are
sections that specify where offence is small but quantum of punishment is more than 2 years, the
scope of Section 3 is wider than normally assumed as covering offences with two years
imprisonment. Furthermore, there are other considerations that are taken into account for
eligibility such as antecedents of the offender, character of the offender, circumstances, and
damages done.
Keshav Sitaram Sali v. State of Maharashtra (1983)

the offender was accused of stealing coal from the railway goods wagon and the High Court of
Bombay allowed the appeal and convicted the appellant of an offence punishable under Section
37943 read with Section 10944 Indian Penal Code.45 The court imposed a sentence of fine of
Rs. 500 on the appellant and in default of payment of fine to suffer rigorous imprisonment for
two months.

Mr. Shri S. V. Tambwekar,

learned counsel for the appellant, at the hearing of this appeal confined his argument to the
question whether the appellant should be dealt with either under Section 360 of the Cr.P.C. or
Sections 3 and 4 of the Probation of Offenders Act, 1958.46 The court adhered to the special
circumstances of this case and declared that the case should have been given the benefit of either
Section 360 of the Cr.P.C. or Section 3 and 4 of the Probation of Offenders Act to the appellant
instead of imposing a sentence of fine on him.47 The final decision of the court was to set aside
the sentence imposed upon the appellant and remit the case to the Trial Court to pass an
appropriate order under either of the two provisions referred above. The fine which has already
been paid by the appellant shall be refunded to him.

Balwinder vs State Of Haryana (2012)

the offender was accused of stealing 20 kgs of ghee for public sale in aluminum container.50 He
was convicted under Section 16(g)(i) of the Prevention of Food Adulteration Act and was
sentenced to undergo rigorous imprisonment for six months along with the fine of 1000 Rs.

Method 2 – Probation based release.

The Section 4 (1) empowers the courts to release such offenders under probation as well. This
method accounts for release of first time and repeat offenders, offenders under both petty and
grievous charges, on probation of good conduct and entering into bond with or without sureties,
if the offence committed is not punishable with death or imprisonment for life.

Overlapping Jurisdictions of Sections 3 & 4:

It is to be noted that there is overlapping jurisdiction of Section 3 and Section 4. Those eligible
for release under Section 3 may also be brought under Section 4, subject to the circumstances of
the case including the nature of the offence and the character of the offender. However, the scope
of Section 4 is broader and unlimited, except for the two exceptions of offences punishable with
death or imprisonment for life. In contrast to the Section 3, these provisions are applicable to all
offenders including repeaters who have committed a crime that was not punishable with death or
imprisonment for life. So, the only exception to eligibility for release under this provision is
offence punishable by death or life imprisonment. All other offences can get accommodated for
consideration of probation. The Section permits the usage of probation for offences including
petty (as cited in the cases below) and ultimately encourages using alternatives to imprisonment
such as probation in cases where offence has not been serious or harmful to the society as a
whole. Entering into a bond with or without sureties The Section 4 also indicates that the
offender should enter into a bond and he may also be required to give sureties. ‘It would
normally be advisable to take sureties in addition to personal bonds, as sureties are themselves a
guarantee of some supervisory efforts towards reform and a safeguard against the offender
removing himself outside the jurisdiction and breaking the conditions of the bond’.