When can an order to release on probation of good conduct be granted by a court?

The author in this article discusses when an order to release on probation of good conduct can be granted by the court, further in this article we will be understanding the concept of probation, what are the reasons to be granted probation, the legal provisions regarding probation and the procedure to be followed.

The word probation means to test, to prove, and to try. The word has originated from the Latin word ‘probatio’. The definition of probation is “the procedure by which a convicted person is released by the court without imprisonment, subject to conditions imposed by the court. Thus, release on probation is the part of the decision making the process of judges at the time of sentencing.[1]

Probation, in other words, means the conditional suspension of the sentence. The offender or the convicted person is allowed to participate in all the social activities that any normal person would with a probation officer bearing down on his neck at any time to see that he is adhering to the conditions given by the court before his release. Probation is no punishment that has been imposed on the offender but it is a way to test and see whether the offender is capable of going back to society and resuming his usual activities without the constant need of doing something wrong.

Probation has six main elements:

  • The offense has been proven in courts and the offender has been found guilty of the same.
  • The punishment given has been suspended or postponed for the time being
  • The offender is given a second chance to prove that he can go about his usual routine before the offense was committed.
  • Conditions are imposed by the court for his release
  • There is a probation officer to check up on the offender
  • The aim of this whole practice is not to punish but reform the offender to not do any wrong again.

In this article we will be understanding the concept of probation, what are the reasons to be granted probation, the legal provisions regarding probation and the procedure to be followed.

Legal provisions regarding provision under the Code of Criminal procedure

Section 360 deals with the provisions regarding probation. It’s sub-section 1 states that “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 calledupon 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[2]

This means that any offense that might result in a punishment of seven years or less or an offense that does not result in death, to a person above twenty-one years of age or any woman that has no previous conviction, and has been proved to be of good character, the offender is released on probation of good conduct by entering into a bond, by the court with strict instructions to appear within three years for sentencing, which might result in acquittal due to the practices of the offender in the last three years.

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The order relating to release of an offender on probation due to his good conduct is given in Section 360(1) should be made to Magistrate of Second class to record hisopinions about the case and submit it to Magistrate of First Class who will then dispose of off the case if he is satisfied with the inquiry done before the case reached him, he may order probation. If he is not satisfied with the inquiry done, he may order further inquiry or ask for additional evidence to see if probation can be ordered or not.  

Section 360(5) states “When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.[3]This means that the revision can be made against the order of probation provided that the High Court or court of session does not give more punishment than was given in the previous order.

Also as is stated under Section 360(7) “The Court, before directing the release of an offender under subsection (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.[4]This subsection gives the way the probation is to be carried out stating that if the offender has a place to reside or live either with a relative or his own and has a steady occupation for the period of the probation granted to him, the offender can be relied upon to live there for the duration under the supervision of the Probation officer under the conditions stated in the order by the court. The court canorder a total house arrest as well, where the offender cannot go outside at all but can stay at home and work and also entertain visitors. The court when satisfied that the offender is not behaving in compliance with the conditions stated in the probation order can issue a warrant for his apprehension as is stated in section 360(8). Once the offender has been apprehended, the court may remand him to jail or give him bail after satisfying itself to a surety that assures the court of the presence of the offender in court for his sentence, as is given in Section 360(9).

The object of probation under the Code of Criminal Procedure under Section 360 was given by Justice Horwill in the case of Re. B. Titus and Ors. vs Unknown stating “ Section 562 (now known as 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 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.”[5]

Section 361 states that reasons for not granting probation to anoffender should be recorded in the case of section 360 or due to the provisions of Probation of Offenders Act, 1958.

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Probation of Offenders Act, 1958

Section 4 of the Probation of Offenders Act, 1958 sates the power of the court to release the offender on release on probation due to his good conduct. The basic rule for granting in relation to the punishment to be granted and to whom probation can be granted are similar to the provisions in Section 360 of the Code of Criminal Procedure, these guidelines are given in Section 4(1) of the Act as it states “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.[6]The other guidelines in this section are also similar to the provisions in Section 360 and  Section 6 of the Act states the same guidelines as Section 361 of the Code of Criminal Procedure that states that the court is required to state all the reasons for not granting probation to the offender.

The purpose of the Act was given in the case of Ramji Missar v State of Bihar[7]as it was stated that the release of the offender under this Act is done after due admonition. The main purpose of the act is to convert youthful offenders from becoming serious criminals by staying with hardened criminals in jails.

Even though the provision might be the same, there are some differences in the scope of both of them. In the case of Chhanni v. State of Uttar Pradesh[8] the Hon’ble Supreme Court stated that the enforcement of the Act excludes the applicability of Section 360, whereas the scope of Section 4 of the Probation of Offenders Act, 1958 is much more than the scope of Section 360 in Code of Criminal Procedure.

Benefits of Probation and its subsequent Criticisms

Probation gives the chance of rehabilitation to the offender who has not committed the crime or has only done part of the whole transaction. Sometimes people get into stuff involuntarily and are not able to get out of this line insufficient time, probation helps give them that push that they need to move forward in their life and make their future-self proud of themselves. But in some cases, people who actually might be just prolonging their punishment as they know they committed the crime and do not want to go through the whole process of going to jail and face the criminals there. So, they try to get probation and prolong their sentencing when they have no intention of ever-changing. This is the main reason why getting release on probation is very difficult in India as the Court cannot decide the intention of the offender, whether he is serious in moving on with his life or not.

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Not only this, but release on probation also helps in not pushing juvenile criminals into the path of becoming hardened criminals, which is possible if they live in jail and be in constant contact with criminals who might use their innocence for all their wrongdoings. They might even brainwash them into becoming a person they never wanted to become.

Probation has a more psychological effect on the offender along with a physical effect. If the offender is let out on probation, they might feel that someone still believes in them and that motivates them to do good deeds. This enables them to move forward from the shackles that hold them to the criminal world. This psychological effect is the same for juvenile and hardened criminals alike. Not only this, but probation also helps reduce overcrowding of jails in the country as criminals are being let out and can stay in their own homes.

Furthermore, the threat further punishment that is instilled in some cases helps the prisoners to not commit anything. But if this threat is not actively instilled in the minds of the offenders, there might never be a chance of them moving forward and not committing any crime. This task can be done by courts as well as release on Probation officers who are tasked with the supervision of the offenders. Probation also decreases the average penalty of offenders.

Conclusion

I would like to put forward drawbacks of the law of probation in our country. Section 360 binds the court to provide probation only to first time offenders, women, or juveniles. But this should not be done as even hardened criminals can change for the right reasons. But the chance is never given to them. Not only that the power has been solely left with the probation officers to decide the fate of the offender. There is no provision in law to reduce the sentence of the offender based on a biased report by the probation officer.

Probation is a correctional tool that can be used by India to increase its social health and help the country move forward. Some suggestions I would like to provide would be that even though India cannot invest much on correctional tools at the moment, it should at least provide trained probation personnel to increase the quality of life in probation. India can reap the benefits of probation very well but to reap the benefits, measures need to be taken by the country to adopt a more mature take on correctional tools presents currently.

Also read Know Your Law: The Probation of Offenders Act, 1958


[1] Encyclopedia of Crime and Justice, S H. Kadish (Ed.), The Free Press, 1983, Vol. Ill, P.1247 and N. K Chakrabarty,Probation Services in the Administration of Criminal Justice, New Delhi: Deep and Deep Publication, (1999) p20

[2] Section 360(1) of the Code of Criminal Procedure

[3] Section 360(5) of the Code of Criminal Procedure

[4] Section 360(7) of the Code of Criminal Procedure

[5] AIR 1941 Mad 720

[6] Section 4 of the Probation of Offenders Act, 1958

[7] AIR 1963 SC 1088

[8]AIR 2006 SC 3051