JAMIA MILLIA ISLAMIA

CODE OF CRIMINAL PROCEDURE II ASSIGNMENT

CONCEPT OF PROBATION

SUBMITTED TO

PROF. M. ASAD MALIK

ASSOCIATE PROFESSOR

FACULTY OF LAW

JAMIA MILLIAI SLAMIA

SUBMITTED BY

NIKHAT ZABI

B.A.LL.B.(H)

ROLL NO 43

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 ACKNOWLEDGEMENT

This assignment would not have been possible without the invaluable help and guidance of
several individuals who, in one way or another, played a key role in its preparation and
completion. This study on CONCEPT OF PROBABTION has not been achieved as an
individual pursuit but has been made possible as a result of the support of many people. At the
very outset, I take this opportunity and privilege to express my sincere sense of gratitude and
indebtedness to Professor Kahkashan Y. Danyal S. Dean, Faculty of Law, Jamia Millia Islamia
for her constant support and encouragement.

I would like to express my sincere gratitude to my supervisor and guide, M. Asad Malik Sir
Associate Professor of sincere Faculty of Law, Jamia Millia Islamia for his guidance
constructive suggestions, and regular inputs without which it would not have been possible to
complete this thesis on time. His guidance has been invaluable in the process of research and
writing and I could not have imagined having a better advisor and mentor for my dissertation.
I am also thankful to the library staff of the Faculty of Law, Jamia Millia Islamia, New Delhi
for assisting in my research work and patiently responding to my queries related to the books
issue.

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 TABLE OF CONTENT

S.NO PARTICULARS PAGE NO

1. ACKNOWLEDGEMENT

2. TABLE OF CONTENT

3. INTRODUCTION

4. CONSTITUTUIONAL PROVISON

5. STATUTORY PROVISIONS

1. LAW OF PROBATION IN CODE OF CRIMINAL

PROCEDURE, 1898

2. PROBATION LAW IN CRIMINAL PROCEDURE

CODE, 1973

3. CONTEXT AND PROVISION FOR PROBATION THE

JUVENILE JUSTICE ACT, 2000

6. EFFECT OF SECTION 361 OF THE CR.P.C. ON THE

PROVISIONS OF PROBATION OF OFFENDER ACT

7. CONCLUSION AND RECOMMENDATION

8. BIBLIOGRAPHY

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INTRODUCTION

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 the infliction of punishment has as its objective the suffering of
the offender, probation is intended at reformation and re-socialisation 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, and misguidance, and have landed in conflict with
law. Incarceration can hurt 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 behaviour.1

Probation is intended as a non- custodial treatment for those offenders who are likely to not
reoffend if appropriate supervision is provided. The importance of probation as a non-custodial
measure is recognized by the international community as evidenced by formulation of the
United Nations Standard Minimum Rules for Non- Custodial Measures (The Tokyo Rules) in
1988, of and their subsequent adoption by the Eighth (8th) UN Congress on the Prevention of
Crime and the Treatment of Offenders in 1990. Many criminal justice system administrations
have tried to adopt and integrate probation as a ‘social defence’ approach to correction. The
social defence movement, a post World War II feature, developed as a movement in 1949 with
the founding of the International Society for Social Defence by Italian Filippo Gramatica, who
wished to replace criminal law with non-penal methods of re- socialising those considered
‘anti-social’, and thereby, to change the structure of state, society and penal methodologies
towards restorative justice and care. The growth of this philosophy has modified worldwide
the conditions of punishment and treatment of lawbreakers.

1
M. Asad Malik: Legal Issues Of Probation: Problems And Prospects Indian Bar Review 43 (2), 155-
169

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Prisoners are now incarcerated under more humane conditions than earlier, juvenile offenders
are segregated from hardened ones and ‘chance offenders’ or ‘first offenders’ get the
opportunity for release either under probation or parole to live within the community. The
Indian context shows that the criminal justice system is characterized by long detentions in the
pre-trial and trial stage. The large majority of the total prison population are remand prisoners
awaiting or on trial. As a result, prisons remain massively overcrowded, with 40, 144 more
prisoners than the authorised capacity.2

In India, in spite of the shift in penal philosophy from deterrence to reformation with the
passing of the Probation of the Offenders Act by the Indian Legislature in 1958, and
amendment of Cr.P.C. provision Section 562 into Section 360, large numbers of young, first
time and petty offenders continue to form the main bulk of overcrowding figures in the prison
population of the country. The effective use of probation can prevent the unending wait of
many offenders who could otherwise avail the benefits of non-custodial treatment. The
provisions under the Probation of Offenders Act are premised on the philosophical
presupposition that the release of offender on probation under supervision will result in a
probable reduction of crime and reformation of the offender. The framework within which this
supervision-based reform and re-integration is carried out is referred to as probation. This Act
applies to offenders of all age groups including repeat offenders not charged with life
imprisonment. The option of probation has great potential to promote reformation and
rehabilitation of convicted offenders as it avoids incarceration and its consequential ill effects
on the incarcerated prisoners besides preventing congestion in prisons.3

When we think about the probation system in India, our attention goes to reformative theory
of punishment because this theory believes in only rehabilitation of the offenders and not in
favour of punishing those who are innocently or circumstantially involved in crimes4 . In this

2 National Crime Records Bureau, Ministry of Home Affairs, Crime in India Statistics, 2011, p 13. The total
capacity of jails in the country: 3,32,782. Total number of jail inmates as on 31.12.2011 :3,72,92 6

3Draft National Policy on Prison Reforms and Correctional Administration, Bureau of Police Research
and Development, Ministry of Home Affairs, 2007, p. 100 – 101.

4 P.J. Fitzgerald, Salmond on Jurisprudence, twelfth edition 1966, p. 115

5
context our constitution provides more chance to prove their innocence against that offence
which is triable against them.

1.BACKGROUND

In India, probation received statutory recognition for the first time in 1898 through Section 562
of the Code of Criminal Procedure, 1898. Under the provision of this section, the first offender
convicted of theft, dishonest mis-appropriation or any other offence under the Indian Penal
Code punishable with not more than two years’ imprisonment could be released on probation
of good conduct at the discretion of the Court. Later, the Children Act, 1908, also empowered
the court to release certain offenders on probation of good conduct. Similar provisions existed
in the Children Act, 1960 which were repealed consequent to the passing of the Juvenile Justice
Act, 1986. The Juvenile Justice (Care & Protection of Children) Act, 2000, further substituted
this Act. The current chapter involves the discussion of the evolution of legislative background
of the Law relating to Probation of Offenders in India and the current scenario of the legislation.
It must be made clear that probation has an integrated and integrative role within the criminal
justice system delivery program. Where the Courts are instruments and interpreters of criminal
justice policy and at the point of sentence, a professionally and lawfully guided judicial
selection occurs, that is based on moral as well as legal criteria. It should be established that
this selection can be enhanced by the provision of relevant, socio-psychological, and economic
information and other data relevant to the offender, and that this is the role of social workers
or probation officer.

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2.CONSTITUTIONAL PROVISIONS IN INDIA

The Constitution is the “Grundnorm” or the basic law of the land. Every law in India derives
its authority form the Constitutional Provisions. Whenever the mention of the criminal law is
made, it is imperative to refer to the approach which the Constitution makers have opted in the
Part III of the Constitution which refers to the Fundamental Rights. Article 20 , 21 and 22 deal
with the provisions relating to the fundamental rights of the accused.Various judicial
interpretations of life and personal liberty provided by the courts embody modern principles
and procedures regarding reformation and rehabilitation of offenders from which the cardinal
principles of probation have been derived.Although probation per say has not been mentioned
in the Constitution but it is a part of administration of the criminal justice for the effective
implementation of law and order in the society. Thus, law of probation directly and indirectly
derives its authority from the provisions of Indian Constitution. The entries 1 to 4, of the
concurrent list of the seventh schedule deal with the administration of the criminal justice
system. The reason why this provision has been inserted in the concurrent list by the makers of
the Constitution can be inferred by the requirement of the uniform law on one hand, but on the
other hang there should be implementation of the same at the grass-root level which can be
achieved only at the State level. Each State and Union Territory has Department of Prisons and
Correctional Services dealing with adult and young offenders – their institutional care,
treatment, aftercare, probation and other non-institutional services. Since it is recognized that
imprisonment is not always the best way to meet the objectives of punishments the government
shall endeavour to provide in law new alternatives to imprisonment such as community service,
forfeiture of property, payment of compensation to victims, public censure, etc. In the
administration of criminal justice system adult and child are treated differently and with
reference to children in conflict with law, the children are a special category. The Constitution
of India under clause (3) of Article 15, clauses (e)and (f) of Article 39, Articles 45 and 47
imposes on the State a primary responsibility of ensuring that all the needs of children are met
and their basic human rights are fully protected.

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3.STATUTORY PROVISIONS

3.1 LAW OF PROBATION IN CODE OF CRIMINAL PROCEDURE, 1898

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation
officers to be appointed who would be responsible to give a pre-sentence report to the
magistrate and also supervise the accused during the period of his probation. Both the Act and
S.360 of the Code exclude the application of the Code where the Act is applied. The Code also
gives way to state legislation wherever they have been enacted. The statement of objects and
reasons of the enactment focuses on the importance of probation and the legislative process
behind the making of the existing enactment. The question of release of the offenders on
probation of good conduct instead of sentencing them to imprisonment had been in the minds
of the Government as early as 1931. However, due to certain reasons this could not be
materialized into an enactment applicable all over India till after Independence. Certain
provinces enacted their own probation laws but there was a lack of uniformity as well as
transparency in those legislations. Due to all these reasons the Probation of Offenders Act, 1958
has been enacted. There are two ways proposed to be applied for the offenders convicted of
offences specified under this Act, either they will be admonished and released or they would
be released on Probation. It is a small and precise legislation of only nineteen sections. The
first section of the Act describes the short title and extent of the Act. The second section
elaborates the definitions like “Code”5 which means the code of Criminal Procedure,
“Probation Officer”6 which means an officer appointed under section 13 of the Act and
“Prescribed”7 which means prescribed by the rules made under the Probation of Offenders Act,
1958. It has also been declared that all the words and expressions which are used but not defined
in this Act shall have the same meaning as defined under the Code of Criminal Procedure,
1973. Section 3 of the Act provides for the power of the Court to release certain offenders after
admonition. It gives the discretion to the Court to release the offender who has been found
guilty of an offence punishable under section 379 i.e. theft, section 380 i.e. theft in the dwelling
house, section 381which deals with theft by clerk or servant of property in possession of master,
section 404 which provides for the punishment for Dishonest misappropriation of property
possessed by deceased person at the time of his death or section 420 which provides for the
punishment for Cheating and dishonestly inducing delivery of property or any other offence

5 Section 2(a) of the Probation of Offenders Act, 1958

6 Section 2(b) Ibid.
7 Section 2(c) Id.

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which does not prescribe punishment more than two years of imprisonment or fine or both
under the Indian Penal Code or any other Law. The precondition of using this discretion by the
Court is that the offender should not have been convicted of any such offence previously. The
court should be of the opinion that having regard to the circumstances of the case including the
nature of the offence and the character of the offender that it is expedient to release the offender
after due admonition for applying the reformative approach in the administration of justice then
the Court may do so. The reason behind this section is that there is always a cause and effect
relationship between the situation in which the offence was committed and the offence which
has been committed. Most of the times the offender committing such offences does not have a
possibility of turning into a recidivist but the incarceration of such a petty offender often leads
the person to criminality. The Section 4 of the Act provides for probation. It gives Power to
Court to release certain offenders on probation of good conduct and lays down that 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.

3.2 PROBATION LAW IN CRIMINAL PROCEDURE CODE, 1973

Section 360 of the Code of Criminal Procedure deals with the order to release of a convict on
probation of good conduct or after admonition. The main provision related to probation under
the Code of Criminal Procedure provides that: The offences referred to in this section are the
same as those which were covered by Sec. 562 of the old Code of Criminal Procedure, 1898
and the circumstances to be taken into consideration are practically the same. Sub-section one
of the section speaks about two categories of persons who are convicted of offences. The first
category is any person above twenty- one years of age who has been convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or less and the second
category of person is any person below twenty- one years of age or any woman who has not
been convicted of any offence which is punishable with death or imprisonment for life then the
Court can provide the benefit of Probation to the offender after it is satisfied of certain things
like no previous conviction is proved against the offender, regard to the age of the offender,
character of the offender or antecedents of the offender, and also the circumstances in which

9
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 behaviour. Sub-section three of
the section 360 deals with the provision of admonition where any person is convicted of theft,
theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal
Code which is punishable with not more than two years' imprisonment or any offence
punishable with fine only and no previous conviction is proved against such person then the
Court before which he is convicted may, if it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of the offender and to the trivial nature of the
offence or any extenuating circumstances under which the offence was committed, instead of
sentencing him to any punishment, release him after due admonition. Sub section four of the
section 360 deals with the provisions being applicable to appellate courts when exercising its
powers of revision. Sub-section five refers to the effect of appeal on the order of Probation
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 such order of probation pass
sentence on such offender according to law, however, under this sub- section the appellate court
should not inflict a greater punishment than what might have been inflicted by the Court by
which the offender was convicted. According to sub-section seven, the Court, before directing
the release of an offender under sub- section (1), shall be satisfied that an offender or his surety
has a fixed place of residence 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. According to sub-section (8), if the offender has failed to observe any of the
conditions of his recognizance, Court which convicted the offender may issue a warrant for his
arrest. When any offender who is arrested in such a way is brought before the Court issuing the
warrant then such Court may either remand him in custody until the case is heard or admit him
to bail with a sufficient surety conditioned on his appearing for sentence and such Court may,
after hearing the case, pass appropriate sentence. This section is in addition to the provisions
of The Probation of Offenders Act and The Children Act and does not affect the provisions for
the treatment, training or rehabilitation of youthful offenders. Thus, Section 360 of The Code
of Criminal Procedure1973 provides for probation, however, where the provisions of the
Probation of Offenders Act are applicable the employment of Sec. 360 of the Code of Criminal
10
Procedure is not applicable. In cases of such application, it would be an illegality resulting in
highly undesirable consequences, which the Legislature, who gave birth to the said Act and the
Code wanted to obviate. Yet legislature in its wisdom has obliged the Court under Sec. 361 of
theCode to apply one or the other beneficial provisions; be it Sec. 360 of the Code or the
provisions of the Probation of Offenders Act, 1958. The comparative elevation of the
provisions of the said Act are further noticed in sub-section (10) of Sec.360 of the Code which
makes it clear that nothing in the said sections shall affect the provisions of the said Act. Those
provisions have a paramountcy of their own in the respective areas where they are applicable.
Looked at from any angle there is no escape from concluding that in the States and union
territories where the Probation of Offenders Act, 1958 is in force, Sec.360 of the Code of
Criminal Procedure ceases to apply and no Court can deal with an offender there under. The
Punjab and Haryana High Court has held that the provisions of Sec. 361 of the Code of Criminal
Procedure are mandatory in nature and enjoin upon the Court to give specific reason if the
convict is not dealt with under Sec. 360 of the Code of Criminal procedure as it has been laid
down in Bishnu Deo Shaw’s case. Therefore, it is obligatory on the part of the Court to deal
with a convict thereunder when he is not convicted of an offence not punishable with death or
imprisonment for life and no previous conviction is proved against the offender. In the instant
case the learned Magistrate has not given any reason why the petitioner was not to be dealt
with under Sec. 360 of the Code of Criminal Procedure. The maximum sentence under Secs. 5
and 8 of the Act for which the petitioner has been convicted is 2 years. The petitioner is not a
previous convict. This High Court has reiterated that taking into consideration the conduct of
the petitioner, there is no ground for declining the benefit of probation to him. It will be in the
interest of justice that conviction of the petitioner be maintained and the sentence imposed upon
the petitioner be suspended. The petitioner is, therefore, released on probation for a period of
one year, on furnishing personal bond of Rs. 10,000 with one surety of the like amount under
Sec. 4(1) of the Probation of Offenders Act, 1958 for one year Section 361 of the Code of
Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Sec.
360, then it must record its reasons as to why the benefit of Sec. 360 of the Code of criminal
Procedure is being denied. In view of the peremptory nature of the language of provisions of
Sec. 361, the Magistrate as well as the Court in appeal and revision having not indicating as to
why the provisions of Sec. 360 of the Code of Criminal Procedure have not been applied, there
has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid
two sections of the Code of criminal procedure have not been complied with notwithstanding
anything contained in any other law for the time being in force, the court may, instead of
11
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. Further 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. The provision
under the Code and the Act are similar, as they share a common intent, that, punishment ought
not to be merely the prevention of offences but also the reformation of the offender. Punishment
would indeed be a greater evil if its effect in a given case is likely to result in hardening the
offender into repetition of the crime with the possibility of irreparable injury to the complainant
instead of improving the offender. Section 6 of the Probation of Offender Act, 1958 is the nature
of a proviso of Secs. 3 and 4 of the Act, 1958, the Legislature has expressed a special tenderness
for offenders under 21 years of age and has couched the section with a command that no
offender under 21 years of age shall be sentenced to imprisonment if he is found guilty of an
offence not punishable with imprisonment for life unless the Court recordsits reason for not
extending to him the benefits under Secs. 3 and 4 of the Act, 1958. The Court is conferred with
the power to call for a report from a Probation Officer for assistance while granting or denying
the benefit under Secs. 3 and 4 of the Act, 1958 to such an offender. In the scheme of the Act
it would appear that the orders envisaged are: (a)Admonition; (b) Bond for goodbehaviour.
Sec. 6 of the Act, 1958 is an additional command to a Magistrate that an offender under 21
years of age shall not be sent to imprisonment and shall be given the benefits of Sec. 3 or Sec.
4 of the Act, 195 as the circumstances of the case justify. It is a restriction on imprisonment of
persons below 21 years of age. Mechanism has been provided to obtain from a Probation
Officer report concerning the character, mental and physical condition of the offender and for
consideration of the report obviously to assess the cause of the crime and the impact of
imprisonment before giving or denying the offender on the benefits of Sec. 3 or Sec. 4 of the
Act, 1958. The denial of the benefit is required to be supported by written reasons enabling
superior Courts to scrutinize whether the grounds for refusal are reasonable or not. 8 There are
other provisions in the Act, 1958 such as Sec. 8 of the Act, 1958 which relates to variation of
the conditions ofprobation and Sec. 9 which deals with the procedure in case an offender failed
to observe the conditions of a bond. Both these sections only speak of Sec. 4 of the Act, 1958
because that section alone relates to a bond and not Sec. 6. It could not be the intention of the

8 Shivcharanlal v. State, A.I.R. 1973 Raj. 167 at p. 169

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Legislature that if a bond had been given by an offender under 21 years of age there could be
no variation in the condition of his bond and he could with impunity disobey the conditions of
the bond. Section 6 only deals with a situation with reference to the age of an offender and in
essence the bond is obviously obtained under Sec. 4 of the Act, 1958 and therefore, Sec. 6 of
(46) the Act, 1958 is not independent of Sec. 4 of the Probation of Offenders Act, 1958. Section
6 of the Probation of Offenders Act deserves to be liberally construed so that its operation may
be effective and beneficial to young offenders who are prone more easily to be led astray by
influence of bad company.9

3.3 CONTEXT AND PROVISION FOR PROBATION THE JUVENILE JUSTICE ACT,
2000

The JJA provides a separate system of justice-dispensation for instances where children are
accused of committing offences.10 The Act provides for care, protection, treatment and
rehabilitation for delinquent and neglected juveniles and ‘makes the juvenile justice system
more responsive to the developmental needs of the juvenile’.

Under the JJA, a juvenile is brought before a Juvenile Justice Board (JJB) rather than a
Magistrate or Judge. Unlike the Probation of Offenders Act, the JJA does not provide for
sentencing a juvenile on being found guilty of an offence. Instead, it requires passing a final
order when the JJB finds that a juvenile has committed an offence. The Act refers to the
offender as a juvenile in conflict with law rather than accused or convicted. The Act does not
call for imprisonment of a juvenile; instead it contemplates advising the juvenile and
counselling parents, urging the participation in community service or releasing the juvenile on
probation of good conduct rather than sending him to Special Home for three years11

In short, the Act provides an opportunity for the juvenile in conflict with law to avoid
incarceration and psychological stigma and not to be viewed as a criminal. The Act also states
the effective involvement of informal social arrangements at the level of the family, voluntary

9 Siddesh Anil Shirsat v. State of Maharashtra, 2009(3) Crimes 755 at p. 760 (Bom.)
10 V. Hansaria and P.I. Jose, Juvenile Justice System: Working Manual for Stake Holders, 2008,
11 Juvenile Justice Act, 2000.

13
organizations and the community.12 In particular, the Act states that a Magistrate is a member
of the Juvenile Justice Board (JJB). It is a unique body which exercises powers in regards to
juveniles who committed a crime.

The Act states that: (1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), the State Government may, by notification in the Official Gazette, constitute
for a district or a group of districts specified in the notification, one or more Juvenile Justice
Boardsfor exercising the powers and discharging the duties conferred or imposed on such
Boards in relation to juveniles in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first
class, as the case may be, and two social workers of whom at least one shall be a woman,
forming a Bench and every such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be,
a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as
the principal Magistrate.
(3) No Magistrate shall be appointed as a member of the Board unless he has special
knowledge or training in child psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been actively involved in health education,
or welfare activities pertaining to children for at least seven years.

Additionally, the Board is empowered to do the following:

(1) Where a Board has been constituted for any district or a group of districts, such Board
shall, notwithstanding anything contained in any other law for the time being in force but save
as otherwise expressly provided in this Act, have power to deal exclusively with all
proceedings under this Act relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High
Court and the Court of Session, when the proceeding comes before them in appeal, revision
or otherwise.

12 Ibid

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4.EFFECT OF SECTION 361 OF THE CR.P.C. ON THE PROVISIONS OF
PROBATION OF OFFENDER ACT

Section 361 of the Code of Criminal Procedure, treats the provisions of Sec. 360 of that code
of Criminal Procedure at par with the Probation of Offenders Act, 1958. Where the provision
of Probation of Offenders Act, 1958 are in force(See Sec. 18 and the Notifications issued under
Sec. 1(3) of this Act) Sec.360 of the Code of Criminal Procedure shall cease to apply 13 . Sub-
section (10) of Sec. 360 of the Code of Criminal Procedure further makes it amply clear that
nothing contained in that section shall affect the provisions of Probation of Offenders Act,
1958. Read with these provisions Sec. 361 simply provides that where in any case the Court
could have dealt with an accused person under the provisions of the Probation of Offenders
Act, 1958 but has not done so, it shall record in its judgment the special reason for not having
done so. Section 361 thus, makes the application of the provisions of Probation of Offenders
Act, 1958 mandatory only to a limited extent. In Case in an appropriate case the Court refuses
to extend the benefit of probation without assigning any special reason, it is contrary to law
and the decision is likely to be interfered with by the Supreme Court14 . The provisions of Sec.
361 of the Code of Criminal Procedure are mandatory in nature and enjoin upon the Court to
give special reason if convict is not dealt with under Sec. 360 of the Code of Criminal Procedure
or under Probation of Offenders Act, 195815 In the instant case, the learned Trial Court followed
the deterrent theory of punishment and therefore, declined to extend the benefit of the Probation
of Offenders Act, 1958 to the accused. This view of his was also approved by the Appellant
Court, the approach of both the Courts below in the case is quite contrary to the provisions of
the Probation of Offenders Act, 1958. Perfunctory manner of discharging the sentencing
function by the Courts has been deprecated by the Supreme Court in R. Ved Prakash v. State
of Haryana16

3.1 CASE ANALYSIS

LAKHANLAL @ LAKHAN SINGH v. STATE OF MADHYA PRADESH17

13 State of Punjab v. Harbans Lal,1983 Cr. L.J. 13 at pp. 15, 17 (P & H)

14
Kamalakshu v. State of Kerala, 1997 (2) K.L.T. 869 at pp. 871 -872.
15
Surender Kumar v. State of Haryana, 2004 (2) R.C.R. (Cr.) 783 at 785 (P. & H.)
16
A.I.R. 1981 S.C. 643; RankaSahu v. State of Orissa, Crimes 1995 (4) 8 at p. 10 (Orissa )

17 Criminal Appeal No.1306/2013; Appeal heard on - 04-04-2019.

15
Facts

The case appellant along with 7 others was charged with offences falling under Section 325,
307, 149, 148 and 147 of IPC. Two of the accused who went to trial were convicted and therein
they appealed to the High Court of Madhya Pradesh. The HC maintained the conviction and
sentence. But the appellant was convicted by the High Court with offences under Section 325
supplementing Section 34 of IPC. Based on this order, he was convicted and sentenced to
rigorous imprisonment for a year along with 1000/- fine. Failure to pay the fine his term was
extended by another 6 months. The appellant has thereby challenged the order of the High
Court in this present appeal before the Supreme Court.

Issues-

➔ Whether Section 360(10) of CrPC and the Probation Offenders Act, 1958 are applicable to
the offender before this court?
➔ Whether the High Court had misread Section 360 of CrPC to not have application in this
case on the reasoning that matter falls under Section 3 and 4 of the Probation Offenders
Act?

Ratio Decidendi

Section 325 is punishable with imprisonment up to 7 years while the appellant was sentenced
for a year. The HC erred in law for not granting probation benefit as under Section 360 to the
appellant based on the reasoning that matter falls under Section 3 and 4 of the Probation
Offenders Act. But Section 360(10) clearly states that the Code shall not be affected by the
Probation Act and therefore the Supreme Court held that both Section 360 and the Probation
Act shall be applicable to the offender in this case. The court took into account that the
appellant had already suffered proceeding legalities for more than 3 decades; that there was
no record to indicate his involvement in any offence for the time frame of more than 3 decades;
along with the conditions provided in Section 360. The Supreme Court granted the appellant
to be released on probation of good conduct for a year along with personal bond.

Analysis

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The reformation and rehabilitation theories of punishment are reflected by Section 360. Based
on the Tokyo and Beijing Rules adopted by the United Nations; followed by the European
Permanent Conference on Probation and Aftermath; Section 360 seeks at character
improvement, promotion of lawful behavior. Section 360 takes a reformative approach
whereby it aims to prevent first time offenders from turning into hard core criminals.
Conditions for probation as laid in Section 360 are:

➔ Person aged more than 21 who has been convicted for a crime with imprisonment up to 7
years or fine
➔ Person aged less than 21 or a woman who is not punished with death penalty or life
imprisonment and has no previous conviction proved
➔ Appears before court irrespective of the offence – based on promise of good conduct
keeping in mind the age, character, antecedent and circumstances surrounding the offence

The Probation Act provides wider grounds by doing away with the distinction of age, gender
or not confining it to first time offender. Section 4 provides any guilty person not punishable
with death penalty or imprisonment could be granted probation with a bond up to 3 years. The
major distinction is that under the 1958 Act, report by a probation officer is necessary before
granting probation whereas under Section 360 there is no such bar.495 Section 360(10)
provides that it shall not affect the 1958 Act of any other acts on similar lines (training,
rehabilitating, treating youthful offenders). But the courts have time and again misinterpreted
the coexistence of Section 360 and the Probation Act.

In Sanjay Dutt v. State of Maharashtra18 the court held that there is no clear intent where both
of these could be applicable at the same time in the same context provided; and its coexistence
would merely result in anomalous results. Reiterating that Section 4 of the 1958 Act and
Section 360 of the Code could not co-exist, the court passed a judgment in Gulzar v. State of
Madhya Pradesh19 . The court in Keshav Sitaram Sali v. State of Maharashtra204 , provided that
benefit of probation could be opted for in either Section 360 or Section 3 – 4 of the Probation
Act. Moving a step further, Chhanni v. State of Uttar Pradesh21 , it laid down that enforcement

18 2013 SCConline SC 252

19 497 Appeal (Crl.) 7 of 2007.
20 498 AIR 1983 SC 291.
21 499 (2006) 5 SCC 396.

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of the Probation Act excludes the applicability of Section 360. Taking lead, the court in Moti
Lal Bairwa v. State of Rajasthan22 , passed a judgment of probation conjointly with Section
360 or the Probation Act. A divergent view has been taken up in this case which takes the onus
of the society to reform the offender by allowing a nexus application of Section 360 and the
Probation Act.
Section 360 and the Probation Act are overlapping to a great extent, where enforcement of
Probation Act has an overriding effect on Section 360. But this case takes a stand against the
conventional notion and analyzes the misinterpretation by the High Court; creating a trail of
passing a judgement that “provisions relating to probation in CrPC (Section 360) shall not be
excluded by the Probation Offenders Act.” In Hansa v. State of Punjab23 , the accused is
convicted for the offence under Section 325 for a year of imprisonment, following which he
was released on probation under Section 360 – this reflects the similar factual matrix as the
current case. In conclusion, the Lakhan Singh case distinctly imparted justice without bars.
Almost half a century has passed since the enactment of Section 360 and the provision has
been left to collect dust and bear testimony of the supposed bright reformative future the
judiciary would have held in promoting rehabilitation without offending community
conscience.

22 500 1986 (1) WLN 287.

23 1984 (2) RCR (Criminal) 274.

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CONCLUSION AND RECOMMENDATIONS

The role of courts in bringing about rehabilitation of offenders need not to be over emphasized.
The final verdict as to whether an offender deserves to be admitted to be the benefit of release
on probation or not, lies with the court. Obviously, the decision as regards the release of an
offender on probation is to be taken only after his guilt is proved. Probationary disposition
being a post-conviction process, depends largely upon the probability of the offender to reform
himself. Therefore, the Judge has to use his discretion in the matter most judiciously Socio-
legal researchers on probation reveal that the factors which influence judicial sentencing, by
and large, include age, sex or maturity of the offender, his family and educational background,
nature of crime and the circumstances under which offence is committed and previous criminal
record of the offender, if any. Experience has shown that youth, unblemished previous record,
immaturity, etc. are generally good grounds for leniency while recidivism, violence, sex-
perversiveness, etc. are sufficient to warrant severe punishment. These are, however, mere
generalisations and do not in any way fetter judicial discretion in sentencing the offender. The
Judge while considering the punishment can hardly afford to overlook the modern correctional
trends in the field of penology. His decision, therefore, plays a vital role in deciding the future
of the offender.

Based on the above research I would like to lay down the following are the recommendations
for the Act-

• Probation must be based on thorough investigation into case-history

• Excessive control and supervision on delinquent tends to make him hostile towards the
probation personal
• Recidivist have often proved a failure in probation
• Probation involves discriminatory processes and therefore, violates the constitutional
provisions under article 15 and 21
• It would be useful to organise probation on natural level under state tutelage. ➔ The
quality of probation service must be improved by making the service conditions of the
probation staff more lucrative.

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• A nation-wide uniform scheme of training for probation personnel with emphasis on
social-work and rehabilitative techniques would serve a useful purpose to improve the
efficacy of probation service in India.
• The Court should make extensive use of this provision in view of the emerging trends
in victimology and it should be made obligatory for the court to record special reasons
for not passing order for victim’s compensation.

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BIBLIOGRAPHY

CASES CITED

Hansa v. State of Punjab 1984 (2) RCR (Criminal) 274.

Moti Lal Bairwa v. State of Rajasthan 500 1986 (1) WLN 287

Sanjay Dutt v. State of Maharashtra 2013 SCConline SC 252

Gulzar v. State of Madhya Pradesh 497 Appeal (Crl.) 7 of 2007

Keshav Sitaram Sali v. State of Maharashtra 498 AIR 1983 SC 291

Channi v. State of Uttar Pradesh 499 (2006) 5 SCC 396

Ahmed v. State of Rajasthan AIR 1967 Raj 190

State of Maharashtra v. Natverlal 1980 AIR 593

Azhar Ali v. State of West Bengal (2012) 10 SCC 489

State of Himachal Pradesh v. Dharam Pal Cr. Appeal No. 415/2014

State of Sikkim v. Dorjee Sherpa And Ors 1998 CriLJ 2685

STATUTES

The Constitution of India, 1950

The Code of Criminal Procedure, 1973.

The Juvenile Justice Act, 2000
Probation of Offenders Act 1958

BOOKS

M.P. Jain, Outlines of Indian Legal History, (Wadhwa & Company Law Publishers, Nagpur,
5th Edition, reprint 1999)

JOURNALS

M. Asad Malik: Legal Issues Of Probation: Problems And Prospects Indian Bar Review 43 (2),
155-169

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Social Defence in India, Statement presented before the 4th UN Congress on Prevention of
Crime and Treatment of Offenders, 1970.

M. Adenwalla, Child Protection and Juvenile Justice System for Juvenile in Conflict with Law,
2006.

V. Hansaria and P.I. Jose, Juvenile Justice System: Working Manual for Stake Holders, 2008.

REPORT

National Crime Records Bureau, Ministry of Home Affairs, Crime in India Statistics,

2011.
Draft National Policy on Prison Reforms and Correctional Administration, Bureau of
Police Research and Development, Ministry of Home Affairs, 2007.

WEBSITES

www.indialawlibrary.com

www.indiankanoon.org

www.lawcommissionofindia.nic.in

www.legalserviceindia.com

www.livelaw.in

www.prsindia.org

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