A SIGNIFICANT ANALYSIS OF PROBATION OF OFFENDERS ACT, 1958

admin | July 3, 2020 | Criminal Law | No Comments

This article was written by Sri Janani M, a student of SASTRA University.

Introduction

The rehabilitation of the offender is the way followed in the Probation of Offenders Act, 1958. In the different types of theories of punishment, the reformatory theory is used in the act as a measure to rehabilitate the offender. This theory is born out of positivity and mainly focuses on the crime itself than the criminal. Mahatma Gandhi said, “Hate the crime not the criminal”, signifying the importance of the reformative theory. The Probation of Offenders Act, 1958 follows the same theory and it is not the punishment practically.

The surroundings of a person influence people’s behaviour. The environmental influence over the criminal, while he is sentenced, is also considered to change the person’s mindset and may, in turn, obdurate the criminal. The Probation is the remedies for the criminal to reform and rehabilitate in society. When the criminal is released to live in the community and not sent to jail with or without any supervision by officers. This changes the situation they live and eventually turns the criminal to become a good citizen.

This article attempts to analyse the significance of The Probation of Offenders Act, 1958.

Definition

The word Probation is defined,

According to the Cambridge dictionary as “A period of time when a criminal must behave well and not commit any more crimes in order to avoid being to avoid being sent to prison.”[1]
According to the Lexico (Oxford) dictionary as, “The release of an offender from detention, subject to a period of good behaviour under supervision.”[2]

History of the Act in India

The origin of the word Probation derived from the Latin word, ‘probatus’ meaning ‘tested’ or ‘proved’ and the word ‘probation’ means ‘I prove my worth’.

The probation is the alternative measure of imprisonment or punishment. The Probation of Offenders Act was passed in 1958. Section 562 of the Criminal Procedure Code, 1980 was the earlier provision dealing with the probation. This permitted the release of an offender on probation but it applied only to juvenile delinquents and first offenders. This also had no provision for supervision. And probation is to be granted by the first-class magistrates only.

In 1934, the British government allowed provincial states to enact their laws permitting probation release. In the years 1936, 1938, 1953, and 1954, the Madras and Madhya Pradesh, Bombay and Uttar Pradesh, Hyderabad, and West Bengal enacted such an Act. These were only for the probation release of the juvenile delinquents. Some states have linked probation with the social welfare, the Prison Department, the Law Department, also separate Directorate.

It later was amended in 1974 and the section was 360. Section 360 states about the order to release on probation of good conduct or after admonition.[3]

Salient Features of the Act

The objective of the act is to reform or rehabilitate the first time or amateur offenders.
It gives warning for the amateurs to have committed an offence under sections 379, 380, 381, 404, or 420 of Indian Penal Code with imprisonment of fewer than 2 years, fine, or both.
The probation is the alternative measure of imprisonment or punishment. It aims to rehabilitate.
Compensation may be paid to the victim when the offenders are let out in probation.
Special protection to juveniles’ delinquents.
The offender may or may not be under the supervision of the probation officer.[4]

Different types of probation

Different types of probation are assigned by the magistrate to suit each situation for the offender. The different types of probation include:

Supervised probation – The probation officer is appointed to have a regular check on the offender. This check may be weekly or monthly. This is done through phone, messages, or visits personally.
Unsupervised Probation – there is no supervision by the probation officer. But have to obey other specific orders from the court. This is given for less serious crimes.
Shock Probation – The offender is sentenced to prison for a short period. After this time ends, he is released on probation to shock the offender in probation conditions.
Community Control Probation – The offender is to remain in his home and he is monitored by an ankle tracking device.
Crime-Specific Probation – To stop the offender from repeating the same crime, the magistrate may impose certain conditions for the offender to follow during the probation period.[5]

Circumstances of denial for Probation

The probation may be denied on certain circumstances. They are:

An offender committed a crime which is punishable with a term of imprisonment for more than 6 years.
When the offender has committed a crime against national security or public order.
When the offender has been convicted earlier for an offence punishable of more than one month, and/or fine more than Rs.2000/-.
The offender is on appeal or serving sentence.
The offender has been convicted against omnibus election code, insurgency law, and wage rationalization.[6]
An offence committed against women.[7]

Probation Officer

According to Section 13 of The Probation of Offenders Act, a probation officer is a person appointed or recognised by the State Government to exercise the duties under this act and subject to the control of the district magistrate of the district in which the offender for time being resides.

Section 14 of The Probation of Offenders Act, 1958 states the duties of the probation officer. The duties of the probation officer may be:

Inquire into circumstances or home surroundings of any person accused of and offence to assist the court in determining the most appropriate methods of dealing with him and also submit the reports to the court.
Supervise the probationers and other person placed under his supervision.
Find probationers and other persons suitable employment.
Advice and assist offenders in the payment of compensation of costs ordered by the court.
Advice and assist persons who may have been released under Section 4.
Perform other duties as prescribed.[8]

Difference between Probation and Parole

Probation is the release of the offender rather than giving punishment under certain conditions and lives with the community. But Parole is a release from the prison early either for a period or permanently.

Case Laws

Some important case laws related to The Probation of Offenders Act, 1958 are:

Jugal Kishore Prasad vs. the State of Bihar – The object of the act has been identified that correction and reformation of individual offenders are done and not to resort to retributive justice.
Ratanlal vs. the State of Punjab – The court observed that the Probation of Offenders Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
Isherdas vs. the State of Punjab – The Supreme Court has established the applicability of probation for many kinds of offences like offences under the Prevention of Food Adulteration Act, 1954.[9]

Conclusion

The Probation of Offenders Act, 1958 is a reformative measure and its object is to retrieve amateur offenders who can be usefully rehabilitated in the society. This also prevents the renovation of youthful offenders into obdurate criminals. This act considers environmental influence is the main reason for the commission of the crime. This probation requires may also require supervision to have a check if the offender compliance the rules.

To conclude, the act has both the benefits and also some disadvantages. The few advantages maybe that helps in the reform of the prison, providing releases options for non-criminal convicts, preventing of additional crimes. However, the disadvantages maybe the limitation in the number of probation officers, the attitude of magistrates towards the prosecution is unlike. When the act is rightfully used, it could bring various changes in society.

[1] https://dictionary.cambridge.org/dictionary/english/probation

[2] https://www.lexico.com/en/definition/probation

[3] https://www.yourarticlelibrary.com/law/law-regarding-probation-in-india/43992

[4] https://www.latestlaws.com/articles/all-about-probation-of-offenders-act-1958-by-naina-agarwal/

[5] https://legaldictionary.net/probation/

[6] https://www.latestlaws.com/articles/all-about-probation-of-offenders-act-1958-by-naina-agarwal/

[7] State of Rajasthan v. Sri Chand (2015)

[8] The Probation of Offenders Act, 1958, No. 20, Acts of Parliament, 1958 (India).

[9] https://www.ebc-india.com/lawyer/articles/73v1a4.htm