Discuss the Benefits for the First Time Offenders

The author in this article discusses the benefits for the First Time Offenders and the related legal provisions and case laws to the same. Probation in criminal jurisprudence is a period of supervision over an offender, ordered by the court in place of serving time in prison, under the guidance of a probation officer.

The beginning dates back when English common law courts were empowered to suspend any execution whereas the convict allowed to appeal to the monarch for pardon. The main concept of probation of first time offenders was developed in the USA in the year 1841 when Boston cobbler, John Augustus successfully convinced the judge to release a convict for his care for a limited time period for the purpose of rehabilitation.

Under probation, a chance is given to a person convicted of a criminal offence to stay with the society instead of under confined prison. It is granted by discretion absolute discretion of the judge adjourned the matter, mainly in non-violent crimes or especially on committing a first-time offense. The convict is compelled to adhere to prescribed court ordered rules and regulations under the probation officer’s guidance. The prescribed conditions may consist of performing community services and welfare, abstaining or restriction from use of alcohol or drugs, restricted to meet particular people and make appearance at court when requested.

Section 562 contemplated under Code of Criminal Procedure, 1898 stipulated that any person not under 21 (twenty-one) years of age, convicted of an offence not punishable with imprisonment for not more than 7 (seven) years, or any person under 21 (twenty one) or any woman convicted of an offence not punishable with death or life imprisonment, and without held convicted previously, can be benefitted by the release on probation of first time offendersof good conduct. Since the Probation of Offenders Act, 1958 (herring after referred as “PO Act”) was enacted by the Indian Parliament, of which, section 19 repealed Section 562 from the old Code.

The characteristics of the PO. Act are as follows:

  • It safeguards the quantum of punishment for first-time offenders by imposing warning or admonition to those who have committed an offence as under sections 379, 380, 381, 404 or 420 of The Indian Penal Code 1860 with imprisonment below 2 year or fine or both.
  • It aims to rehabilitate apart from in case of punishment of life imprisonment or death.
  • The court may ask for payment of reasonable compensation for losses caused to the victim.
  • The act provides special protection to person(s) under the age of 21 (twenty-one) but subjected to punishment.
  • The offender is placed under the directions of a probation officer appointed.

Benefits under Indian Statutes for First Time Offenders

The two methods of releasing convicts absolutely depend upon the conditions upon which the conviction is whether first time offenders or a habitual; admonition and probation. The PO. The Act contemplates the treatment for petty offenders who committed such offences for the first time, in cases where the prescribed offences viz. punishable with imprisonment of fewer than 2 years.[1] Eventually, the Act also allows probation of offenders who committed first time petty or grievous crime on good conduct and getting into bond, with or without surety, being the condition that the punishment for such offence shall not be death or life imprisonment.[2]

Under Section S.562 of the Code of Criminal Procedure, 1898, the earliest statute to deal with probation was established. After the amendment in 1974, it is empowered as under S.360 of The Code of Criminal Procedure, 1974 (hereinafter referred to as “CrPC”).

It reads as follows: –

When any person not under 21 (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 21 (twenty-one) years of age, or, any woman is convicted of an offence not being 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, rather than sentencing him at once to any punishment, direct that he be released, only on his entering into a bond, with or without sureties, to appear and receive sentence when called upon by court during such period not exceeding 3 (three) years as the Court may direct and in the meantime to maintain peace and a good behaviour.

S.361 of the CrPC makes it mandatory for the judge to state the reasons for not awarding the benefit of probation in cases where it is applicable. The aim of probation has been laid down in the judgment of Justice Horwill in In re B. Titus:[3] Section 562 is intended only to prevent young persons being commissioned to jail, where they might get associated with dreaded criminals, who may further lead on a forlorn path of crime, and in a wider aspect helping even men of mature years who for the first time under certain circumstances may have committed crimes due to ignorance or unpremeditated or the bad influence of others and who but could be expected to make good citizens. In such cases an entire term of imprisonment may have the very contrasting effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed an offence and by the mental agony and disgrace that a trial in a criminal court would involve.

Yet there are a few differences, which have been contemplated under section 4 of the PO. Act, under section 360 of the CrPC.

That any person may be released on probation, only if he has not committed an offence which is punishable with either death or imprisonment for life. There is no differential treatment on the basis of Sex or Age. Any person even if not under 21 years of age, and is not convicted of an offence punishable with an imprisonment for not more than 7 years or where a person under 21 years or any woman is convicted of any offence which is not punishable with either death or imprisonment for life may be released on probation. It is nowhere a requisite for the applicability of probation that the person must be a first offender, this section is applicable absolutely when no previous conviction is proved against the offender.

A 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 have to submit the proceeding at Magistrates of the first class, or, at the Sub-Divisional magistrates. A supervision order may be passed stating the conditions and further directions that the offender shall remain under the supervision of a Probation Officer.

The Juvenile Justice (Care and Protection of Children) Act, 2000 also contemplates provisions for  releasing children who committed offences,[4] to be released on probation on the grounds of good conduct and assign them under the care of any parent, guardian or such other fit person, on such parent, guardian or other fit person duly executing a bond, with or without surety, or any such fit institution as the Board may prescribe, for the good behaviour and well-being of the juvenile for any such period not exceeding three years.

Section 6 of the PO. Act, which contemplates provisions for a person below 21 years of age to benefit from probation, notwithstanding with their antecedents, personality and mental attitude. It might lead to recidivism as many of them may not respond favourably to the provisions of reformative mode of treatment. Also, in many cases it is difficult to conclude whether such delinquent is a recidivist or a first offender.

Earlier recidivists have often evinced a failure in the process of probation. Thus, it has been generally accepted that the provisions regarding probation should only be restricted to the cases juveniles, first offenders and women offenders. Under section 360 of the CrPC it states that only person(s) who is a first offender will be granted this benefit if they are not below 21 years of age, no such condition has been laid down in the CrPC. Necessary amendments may be done to incorporate the same.

The Hon’ble Supreme Court of India (hereinafter referred as “Apex Court”) in Jugal Kishore Prasad v. State of Bihar,[5] held 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.”

The Apex Court in Dalbir Singh v. State Of Haryana,[6] exhaustively observed that the term “expedient” viz. under Section 3 and 4 of the PO. The Act stands for denoting “desirable” and thus held that the “The Court must construe the said word in maintaining with the context and object of the provisions in its widest amplitude, eventually stimulating the act positively.” Since, the completion of prison sentence requires arduous measures for the person to settle in the society again and thus the court can release the offender when it reasonably considers that sentencing would result in no good.

The Apex Court in declaring one of its judgments in State Through Police Inspector v. Shaikh Mohammad Rafiq S/O Shaikh Amrul Hassan,[7] observed

“The PO. Act is still in force, but 50 years down the line with an ever-rising crime rate, the advantages of the PO. Act, by the judicial trend, is not being extended to a wider number of cases. This is not to say that it ought not to be widened in appropriate cases… The benefits of probation have not been encouraged in cases regarding 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 specifically compiled the interpretation adopted by the courts in connection to the application of the PO. Act.

In a recent judgment at the Bombay High Court in Nishanth Harishchandra Salvi v. State of Maharashtra,[8] the court contemplated several instances where the PO. Act has interpreted, under Para 11 it has observed,

While considering the object of POCSO Act in mind, it must also be kept in mind that the exercise made with discretion given to the Court under section 4 of the Act requires considerable sense of responsibility and Court should not be misled in concluding while making into the free use of Section by any misplaced leniency and sympathy. The provisions of the Act must be applied with absolute discretion. The Apex Court in Commandant 20 BN, ITB v. Sanjay Binjola,[9] held that:

“Nobody can claim the benefit of Sections 3 and 4 of Probation of Offenders Act, as a matter of right and the Court has to pass such appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effects on the society and character of the offenders etc.” Allahabad High Court:

In a Durgesh Chandra v. the State of UP,[10] the Allahabad High Court released the accused on probation by granting him the benefit of Section 4 of the PO. Act. The accused was charged under Sections 323, 452 and 326 of the Indian Penal Code 1860, and was further convicted by the Trial Court in this regard. Advocate on behalf of the appellant, stated that since the appellant was not convicted previously for any offence, he was applicable for benefit under the PO. Act the Trial Court ought to have invoked the provisions. It had also submitted that the Trial Court did neither invoke the provisions of the PO. Act nor the provisions of Section 360 of the CrPC while sentencing the accused (appellant). Neither it declared any reasonable grounds in the impugned judgment and order of conviction for not granting the benefit of provisions under Section 360 of CrPC or the provisions of PO. Act. Thus, the order consists of serious illegality violating provisions of Section 361 CrPC and, thus, it cannot sustain. The section 361 of the CrPC is thus necessary to be imposed with or without the beneficial provisions i.e. Section 360 of the CrPC or provisions contemplated under PO. Act. It was further stipulated that if the Court chose not to apply either of these provisions, it was required to give such special reasons for not applying the beneficial provision otherwise the accused offender would be eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958. The accused-appellant had a statutory right for claiming the benefit of beneficial legislation. The Court, in view of the facts and circumstances, held that the appeal should be dismissed by upholding the conviction of the accused-appellant. However, he was granted the benefit of Section 4 of the Act, 1958. He was released on probation.

Discussions

The practice of Probation has been practiced in Indian Judicial System since the Code of Criminal 1898, where statutes in relevance to Probation were contemplated under section 562.

An offender, irrespective of the age or sex, irrespective of the number of times commission of offence, if is never convicted of an offence before the conviction, is applicable for a release by Probation, by claiming the benefits under the P. O. Act, 1958.

If during the judgement, a convict being eligible for benefits of the provisions under the P. O. Act, if, the convict is deprived of such benefits, without stating any reasonable statement for doing so, such a convict can appeal for considering the matter at Higher Court.

Code of Criminal Procedure 1973, Indian Penal Code 1860 and Probation of Offender Act 1958, functions in conformity for the probation of the first-time offenders, sustaining the interrelated statutes and benefits to the person(s) who is eligible to claim the benefit, though there are certain contradictions due to which the literal exegesis is disturbed while exercising the powers and dependency is built upon doctrine of stare decisis.

Juvenile Justice (Care and Protection of Children) Act, 2000 also contemplates provisions for releasing children who committed offences, and to be released on probation on the grounds of good conduct.

Conclusion

Probation in criminal jurisprudence is a period of supervision over an offender, ordered by the court in place of serving time in prison, under the guidance of a probation officer.

The legal system consists of stringent punishments to punish the evil in the society and to maintain the society free from such evils by incarcerating them, but on the contrary, also protects the person(s) who are not a habitual offender, and who have committed an offence, under unavoidable circumstances, for which the courts consider a humble treatment than to that of recidivists, to protect upstanding person(s) from the club of criminals behind the closed walls of Prison.

Also read Fugitive Economic Offenders


[1] Probation of Offenders Act, 1958, Section 3.

[2] Probation of Offenders Act, 1958, Section 4(1).

[3] AIR 1941 Mad 720

[4] Under Section 15(1)(e), Juvenile Justice (Care and Protection of Children) Act, 2000

[5] 1972 AIR 2522; 1973 SCR (1) 875

[6] Supreme Court of India, Appeal (crl.)  426 of 2000, Date of Judgement 04th May 2000

[7] (2009) 111 BOM LR 4640

[8] Bombay High Court; Criminal Revision Application No. 269 OF 2018; Decided on, June 18, 2018.

[9] 2001 5 SCC 317

[10] 2019 SCC OnLine All 2176, decided on 15-05-2019