This article is written by of Gungun Sharma of 3rd Semester of Hidayatullah National Law University
ABSTRACT
“Kill the crime, not the criminal”. This quote as stated by Mahatma Gandhi clearly shows that it is not the criminal who has to be killed or vigorously punished for the offence, instead of that, the justice system should work towards making changes that can lead to the deterioration of the criminal environment in the nation. It has to be understood that there always remain certain factors/reasons that makes the environment conducive to the offender to commit crime. The reasons can be varied and distinguished in different cases. Considering this, the global as well as Indian justice system is moving towards the reformative approach that emphasizes the rehabilitation and reintegration of offenders into society. The reformative approach focuses more on reforming the criminal environment by addressing the root cause of criminal behavior rather to give high degree punishment to the offenders which does not always gives a fruitful result. One of the elements of this approach is the concept of “Probation”, through which the criminals are given the chance to reform themselves under someone’s supervision. This article will give details about the system of Probation, how it is being used by the criminal justice system. This will further delve into the use of probation system in the justice system of India and how it is leading the justice system towards a reformative approach.
KEYWORDS
Probation, Indian criminal justice system, Criminal courts, CrPC, Probation of Offenders Act, 1958, Rehabilitation, Reintegration, First-time offenders.
RESEARCH OBJECTIVES
This research paper has been written with the aim to target the following objectives:
- To find out the history and the evolution of the concept of probation
- To find out the legal provisions in Indian law system that deals with probation and to analyse it.
- To examine and analyse the effectiveness of the probation system in promoting rehabilitation and reducing recidivism rates among offenders in India.
RESEARCH METHODOLOGY
This research article has been written through the help of doctrinal as well as non-doctrinal research. Various legal provisions have been read through to find out the substantive and procedural law governing the concept of “Probation” in India. Further, secondary sources including journals, articles, and published papers have been reviewed so as to get a good analysis of the real practice of criminal court while dealing with any case concerning this concept. Also, for a better understanding of it, recent “Indian cases’ judgments of Supreme Court as well as High Court” have been read so as to find out how the Indian court use the discretionary power to release someone on probation while considering the concept of maximum justice to the community.
INTRODUCTION
“Probation is derived from a latin term ‘Probare’, which means to test or to prove. Probation is an alternative of keeping an accused in prison with hardened criminals, court can order personal freedom of criminals on promise of good behavior, and can also order a period of supervision over an offender”. [1] “According to the “United Nations, Department of Social Affairs”, the court releases the offenders convicted of an offence on probation against the order, during which the probationer lives in the society under the normal circumstances and he is under the direct supervision of the probationer and regulates his own life under conditions imposed by the court. The release of probationer provides an opportunity to the offender to reform and live in the society and it acts as a deterrent in the society”. [2] It basically is a rational approach through which it is ensured that the first-time offenders do not get into the space full of criminals by not sending them to the jail. They rather get supervised by the “probation officer” who makes a detailed study about the offenders and attempt to resolve the root cause which made the offenders to commit the respective crime[3]. The probation system is known to be based on the reformative theory as this venture to reform the cause that led to the commitment of the crime.
HISTORY OF THE CONCEPT OF PROBATION
In terms of penal history, probation originated at a time rather similar to the present. In the middle of the nineteenth century, there was disillusion with the current penal methods. Romilly, and similar reformers, succeeded in drastically reducing the number of offences to which the death penalty applied. New forms of reformatory discipline were being introduced. The first inspiration for change were the then revolutionary methods of Crofton and Macanochie who were convinced that less repression and more trust innovators was, specifically, the marks system and, in general, a new humanitarian approach to incarcerated criminal offenders. [4] “The system of probation owes its origin to John Augustus of Boston (USA) around 1841 whereas Parole was first introduced in the United States by Brockway Zebulon in 1876 but it was first used in Australia and Ireland”. [5] “The system of Probation, first developed in the US when John persuaded a judge in the Boston Police Court, in 1841, to give him custody of a convicted offender, a drunkard, for a brief period and then helped the man to appear & rehabilitated by the time of sentencing”.[6] Probation began as a humanitarian effort to allow first-time and minor offenders a second chance. It originated as a means of providing an alternative to incarceration for individuals who had committed minor offenses or were considered less dangerous to society.
PROBATION AND THE INDIAN JUSTICE SYSTEM
In the Indian criminal justice system, probation allows offenders to serve their sentences in the community under certain conditions, instead of being incarcerated. It is an alternative to imprisonment, designed to rehabilitate and reintegrate offenders into the society while ensuring public safety. The concept of probation in India is rooted in the belief that individuals who have committed crimes can be reformed and given an opportunity to lead law-abiding lives. In the Indian justice system, probation is governed by the “Probation of Offenders Act, 1958”. This legislation provides a framework for the courts to order probation as a sentencing option. When considering probation, the courts take into account various factors such as the nature of the offense, the character of the offender, and the potential for reform. The probation officer plays a crucial role in assessing these factors and making recommendations to the court. Once the person is placed on probation, they are required to adhere to specific conditions imposed by the court. These conditions may include regular reporting to a probation officer, participating in counseling or rehabilitation programs, avoiding criminal activities, and refraining from associating with certain individuals. The probation officer monitors the progress of the probationer and ensures compliance with the conditions. Failure to comply may result in the revocation of probation and the imposition of more severe penalty, such as imprisonment.
“Probation of Offenders Act, 1958”
The probation system in India is primarily governed by “the Probation of Offenders Act, 1958”. It is a significant legislation in India that provides for the release of certain offenders on probation instead of sentencing them to imprisonment. The primary objective of the Act is to promote the rehabilitation and social reintegration of offenders, particularly first-time offenders, by allowing them an opportunity to reform themselves and become law-abiding citizens. Under the Act, when a person is found guilty of committing an offense, the court has the discretion to release the offender on probation if it deems it expedient and in the best interest of justice. “Probation allows the offender to remain in the community under the supervision of a probation officer and subject to certain conditions and restrictions for a specified period”. The act applies to a wide range of offenses, both serious and non-serious. However, it is generally intended for offenders who have committed offenses “not punishable with death or life imprisonment”.
Section 4 of this act deals with “the Power of court to release certain offenders on probation of good conduct”. [7]This section gives the court direction as to how they have to deal with any case where the offender can be released on probation. This also gives certain eligibility criteria for the offender. The court considers various factors such as the nature of the offense, the character of the offender, and the possibility of reform in determining eligibility for probation. If the court decides to release an offender on probation, it issues a probation order specifying the conditions and restrictions to be observed by the offender during the probation period.
The offender gets supervised by the probation officer who are appointed by the government and are responsible for supervising and assisting offenders placed on probation. Probation officers access the needs of the offenders, provide guidance and counseling, monitor their compliance with the probation conditions, and submit reports to the court regarding their progress.
The duration of Probation can vary depending on the circumstances of the case and the court’s discretion. It may be for a specific period, “not exceeding three years”, as determined by the court. During this period, the court retains jurisdiction over the case, and if the offender breaches the conditions of probation, the court may revoke the probation and impose the original sentence. The probation order can be reviewed by the court at any time during the probation period. If the court is satisfied that the offender has complied with the conditions and has been rehabilitated, it may terminate the probation before the specified period. This gives the offender an opportunity to resume a normal life without the stigma of a conviction.
Overall, this legislation emphasizes the reformation and rehabilitation of offenders as the primary purpose of punishment. It recognizes that imprisonment may not always be the most effective way to address the underlying causes of criminal behavior, especially for first-time or non-violent offenders. By providing an opportunity for probation, the Act aims to facilitate the reintegration of offenders into society, reduce recidivism rates, and promote a more compassionate and restorative approach to criminal justice.
Criminal procedural code
“The Code of Criminal Procedure, 1973”, is a comprehensive legislation that lays down the procedures to be followed in the investigation, trial, and punishment of criminal offenses. The CrPC comes into play during the trial and sentencing stages. When considering the appropriate punishment, the court takes into account various factors, including the nature and severity of the offense, the offender’s background, and the possibility of their reform. Section 360 of the CrPC specifically deals with the power of the court to release an offender on probation of good conduct or after admonition.
Section 360(1) of CrPC states that, “When any person not under 21 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 21 years of age or any women 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 such period as the Court may direct and in the meantime to keep the peace and be of good behavior.”[8] This section clearly gives the court the option to release any offender on probation in case the offender is fulfilling the eligibility criteria and as the court considers to be a good decision for a better justice. It is important to note that probation is not an absolute right of the offender but rather a discretionary power of the court.
Cases
Some recent Indian cases in which the court use its power as given under section 360 of the CrPC are given below:
- “Rajjan vs. State of U.P.”[9] – In this case, the offender is a farmer and belongs to a very humble and village background and he is convicted for the offence under “section 323 of IPC” along with 1000/- fine. It was also found out that the offender has no any criminal history. The honorable “Allahabad High Court”, after considering the background of the offender and the nature of offense he committed, used their discretion to release him on probation. The court also ordered the appellant “to file personal bonds to the effect that he shall not commit any offence and shall observe good behavior and shall maintain peace during the period of one year”. [10]
- “Ram Padarath And Another vs. State of U.P.”- In this case, the offenders were convicted for the offence under “section 323/34 IPC” and “section 325/34 of IPC” and the accused-appellant was sentenced only for a maximum period of two years imprisonment and fine of Rs. 500/-. Also, the appellant was not convicted anytime previously. Considering the fact and circumstances of the case, the court granted the accused released under “Section 4 of the Probation of Offenders Act, 1958”.
- “Lakhvir Singh vs. The State of Punjab & Anr”. [11]– In this case, the appellants were charged under “Section 397 of IPC”. It was observed by the court that the appellants have already served half of their 7 years of sentence and that there is no adverse report against them about their conduct in jail. Considering this the court deemed this case as fit to give the offenders release on probation as under “Section 4 of the Probation of Offenders Act, 1958.”[12]
CONSEQUENCES
The consequences of the probation system in India, under the CrPC and Probation of Offenders Act, 1958 encompasses a range of outcomes that influence both the offenders and the broader criminal justice system. This system provides an alternative to imprisonment for eligible offenders. By placing them on probation instead of sending them to prison, the system aims to reduce prison overcrowding and associated costs, while allowing individuals to remain in the community under supervision. By providing them with the opportunity to reform and addressing the underlying causes of their criminal behavior, “probation aims to equip offenders with the skills and support necessary to lead law-abiding lives”. Also, successful rehabilitation and reintegration reduce the likelihood of future offenses and contribute to community safety. Probation also allows for a more individualized approach to sentencing. The conditions and requirements imposed on each offender can be tailored to their specific needs and circumstances, addressing various factors. By providing offenders with the necessary support and monitoring their progress, probation helps reduce risk of recidivism and potential harm to the community.
CONCLUSION
The probation system in the Indian Justice System reflects a more humanitarian and compassionate approach to criminal justice. It recognizes that punishment alone may not address the underlying causes of criminal behavior and aims to provide offenders with opportunities for redemption, personal growth, and social reintegration. “The Honorable Allahabad High Court in a decided case said that “the Probation of Offenders Act, 1958” is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It also observed that the social background and the personal factors of the crime-doer are very relevant”.[13] Overall, the concept of probation in the Indian Criminal Justice System aims to promote rehabilitation, reintegration, and community safety, while also considering the individual circumstances of each offender. By providing personalized support, supervision, and opportunities for reform, probation contributes to a more compassionate and effective criminal justice system. Since ages, this system has proved to be an efficient source of leading the Indian criminal justice system towards a reformative and progressive approach. The effectiveness of this system in future however, relies on proper implementation, adequate resources, collaboration among justice agencies and the active participation of offenders in their own rehabilitation.
REFRENCES
- “The Probation of Offenders Act, 1958”.
- “Code of Criminal Procedure, 1973”.
- “S. Bala Krishnan, A Trend Analysis to Reported Cases on Granting Probation by Supreme Court, 120, International Journal of Pure and Applied Mathematics, 1515, (2018), https://www.acadpubl.eu/hub/SpecialIssue, last seen on 21/06/23”.
- Shikha Singh, Concept of Probation and Parole, Reader’s Blog, https://timesofindia.indiatimes.com/readersblog/world-of-change/concept-of-probation-and-parole-a-critique-5184/, last seen on 23/06/23.
- Graham Parker, The Law of Probation, 19, Canadian J. Criminology and Corrections, 51, (1977), https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cjccj19§ion=14, last seen on 20/06/23
- Shruti Kulshreshtha, A Study on the Probation of Offender Act, 1958, IPleaders, https://blog.ipleaders.in/a-study-on-the-probation-of-offender-act-1958/, last seen on 20/06/23.
- Aashank Dwivedi, Probation of the Offender, Reader’s Blog, https://timesofindia.indiatimes.com/readersblog/aashank-dwivedi/probation-of-the-offender-42209/, last seen on 20/06/23.
[1]“S. Bala Krishnan, A Trend Analysis to Reported Cases on Granting Probation by Supreme Court, 120, International Journal of Pure and Applied Mathematics, 1515, 1517, (2018), https://www.acadpubl.eu/hub/SpecialIssue, last seen on 21/06/23”.
[2] Ibid, at 1518.
[3] Ibid.
[4] “Graham Parker, The Law of Probation, 19, Canadian J. Criminology and Corrections, 51, 87, (1977), https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cjccj19§ion=14, last seen on 20/06/23”.
[5] “Shikha Singh, Concept of Probation and Parole, Reader’s Blog, https://timesofindia.indiatimes.com/readersblog/world-of-change/concept-of-probation-and-parole-a-critique-5184/, last seen on 23/06/23”.
[6] Ibid.
[7] “S. 4, The Probation of Offenders Act, 1958”.
[8] “S. 360(1), Code of Criminal Procedure, 1973.”
[9]Rajjan vs. State of U.P (2020) 207 AIC 934.
[10] Ram Padarath And Another vs. State of U.P
[11] Lakhvir Singh vs. The State of Punjab & Anr (2021) 2SSC 763.
[12] Ibid.
[13] Supra 10.
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