PROBATION – CONCEPT, ORIGIN

AND DEVELOPMENT
Dr. Moirangmayum Sanjeev Singh
Assistant Professor
Centre for Police Administration
Panjab University
• Our Criminal Justice System always tries to correct the criminal by giving
them a chance to change himself and live a life in the society.
• One of the most common forms of community correction is probation.
• Probation can be thought of as a type of post trial diversion from
incarceration.

• Undoubtedly, probation is one of the measures which may be used by

courts as an improved form of non-custodial alternative in place of
imprisonment.

• This correctional device is being increasingly used by the magistracy in

modern times.
• The age old custodial measures and institutional incarceration presents
two crucial problems;
• It increases the dependence of offender
• And decreases his capacity to readjust to normal society after release.
• Conformity with the strict prison discipline is no guarantee that the
prisoner has really transformed into a law abiding citizen.

• Other inevitable consequences that flow from prisonisation of offender

are loss of job, separation from family and contamination due to
association with other professional delinquents.
• Probation of offenders has widely been accepted as one of the
non-institutional methods of dealing with corrigible offenders particularly
young offenders and first offenders.

• It aims at rehabilitation of offenders by returning them to society during

the period of supervision rather than sending them into a unnatural and
socially unhealthy atmosphere of prisons.

• The offender is allowed to remain in the community and develop as a

normal human being in his own natural surroundings.
Meaning
• The release of offenders on probation is a treatment device prescribed by
the court for persons convicted of offences against the law, during which
the probationer lives in the community and regulates his own life under
conditions imposed by the court or other constituted authority, and is
subject to supervision by a probation officer.
• Derived from latin word ‘probare’ means ‘to test’ or ‘to prove’
• Etymologically Probation means ‘I prove my worth’

• A sentence in which the offender, rather than being incarcerated, is

retained in the community under the supervision of a probation agency
and required to abide by certain rules and conditions to avoid
incarceration.
Definition
• S. Cunnings – Probation is the matter of discipline and treatment. If
probationers are carefully chosen and supervision work is
performed with care and caution, it can work miracles in the field of
rehabilitation.

• Don M. Gottfriendson – probation is a procedure by which a

convicted person is released by the court without imprisonment
subject to conditions imposed by the court.
• The actual selection for release on probation depends on the careful
investigation of personal case history and social circumstances of the
offender. The investigation is done by a probation officer who prepares a
pre-sentence report to be filled before the trial court prior to the final
disposal of the case.
• An offender may be released on probation either after the sentence is
passed in his case or without passing of a sentence.
• sentence is passed – the sentence is suspended and delinquent is placed
under probation
• without passing of a sentence – under probation straightway without any
sentence being passed on the offender.
Conditions of Probation
• According to Howard Jones

• No punishment should be imposed initially;

• The offender should be given a definite period to redeem himself;
• During this period the delinquents should be placed under supervision
of a probation officer for two obvious reasons

• in order to keep the court informed about his progress

• To help him to make the best use of the opportunity given to him

• If the offender responds favourably, his initial crime should be deemed

to have been scrapped, but if he fails to do so, he may be brought back
to court and sentenced for the original crime.
Origin and Development of Probation
• The origin of probation can be traced to English criminal law of the Middle
Ages. Harsh punishments were imposed on adults and children alike for
offenses that were not always of a serious nature. Sentences such as
branding, flogging, mutilation, and execution were common. During the
time of King Henry VIII, for instance, no less than 200 crimes were
punishable by death, many of which were minor offenses.

• This harshness eventually led to discontent in certain progressive segments

of English society that were concerned with the evolution of the justice
system. Slowly but resolutely, in an effort to mitigate these inhumane
punishments, a variety of measures were devised and adopted.
• Royal pardons could be purchased by the accused; activist judges
could refrain from applying statutes or opt for a lenient
interpretation of them; stolen property could be devalued by the
court so that offenders could be charged with a lesser crime.

• Eventually, the courts began the practice of "binding over for good
behavior," a form of temporary release during which offenders could
take measures to secure pardons or lesser sentences. Controversially,
certain courts began suspending sentences.
• The concept of ‘benefit of clergy’ surviving in England and America
until the middle of the 19th Century. - exemption of the English
clergy and nuns from the jurisdiction of the ordinary civil courts,
granted in the Middle Ages but abolished in 1827.

• "Release on recognizance" or bail, for example, allowed defendants

who agreed to certain conditions of release to return to the
community to await trial. After setting bail, judges sometimes failed
to take further action.
Probation in USA
• In American John Augustus, a shoe-maker of Boston in 1841 volunteered
to stand bail for a person charged with drunkenness in a local court.
• The defendant showed signs of reform.
• The judge ordered a nominal fine and released the offender.
• Fascinated by this incident, John Augustus started standing bail for more
and more offenders and took upon himself the duty of helping and
supervising them during the period of bail.
• Subsequently, he helped delinquent women and children also in their
rehabilitation. It is from here that the system of probation began.
• John Augustus, was however, cautious in selecting offenders to be
accepted under his charge.
• He picked up only those delinquents and accepted them as apprentices
who were not totally depraved but showed signs of reformation.
• He arranged to send them to school and provided them with some honest
employment and lodging.
• Later, Father Cook of Boston also took keen interest in the rehabilitation of
young offenders.
• He drew attention of the courts to the fact that these offenders were
mostly the victims of their circumstances and were corrigible if placed
under proper supervision and guidance.
• He associated himself with the criminal courts of Boston to advise the
judges in matters of juvenile trials.
• Probation law was formally enacted in Massachusetts State for the first
time in 1878 and probation officers were appointed for the city of Boston.
• The probation programme was subsequently extended to other cities in
the State of America.
• In course of time juvenile courts were established and the system of
probation was extended to these courts also.

• By the middle of the twentieth century probation became so popular that

it began to be extensively used in cases of adults, juveniles and women in
most parts of the United States.
• Illinois adopted the system of probation in 1899. Thereafter, other States
followed the suit and by the year 1956 all States accepted probation for
rehabilitation of their delinquents.
• Under the American probation law, the benefit of release on probation extends
to following offences:
• Crimes of violence
• Crimes involving use of deadly weapons:
• Sexual offences
• Crime against the Government or treason
• Offences for which specific mandatory punishment is provided
• Recidivists - a convicted criminal who reoffends, especially repeatedly.
Probation in UK
• In U.K. the system of probation received statutory recognition in 1907 with the
enactment of Probation of Offenders Act in that year.
• At Birmingham, however, a separate court for the trial of teenager criminals was
established earlier in 1905.
• The Probation of Offenders Act, 1907 provided that an offender could be
discharged on probation either after certain sentence being imposed on him or
even before the imposition of the sentence.
• His release on probation could either be absolute or conditional, depending on
his antecedents, character, age, physical and mental condition, and the
circumstances which prompted him to commit the offence.
• Probation officers were separately appointed for adults and children.
• The Act was amended in 1908 and again 1914.

• With the enactment of the Criminal Justice Act 1948, probation was
extended throughout England as a measure of correctional method of
treatment.
• The entire country was divided into a number of probation areas for this
purpose each having a fixed number of probation officers to help and
advise the courts.

• Although probation for women was introduced in England at a much later

stage than for adult males but it has yielded wonderful results so far
rehabilitation of women offenders is concerned.
• The Brooklyn Plan which recommended differed prosecution for
delinquents provided that a juvenile offender charged with an
offence is to be admitted to probation without being convicted.

• Probation of offenders has been considered as an effective method

easing pressure on prisons.

• The Courts are provided with an improved range of non-custodial

alternatives to avoid unnecessary incarceration of offenders.
• The opinion of House of Lords that there was no power to include in a
probation order a requirement that the probationer should attend a
daycentre caused considerable alarm.
• The English Criminal Justice Act, 1982, however, suggested reorganization
of Probation Committees for the purpose of redressing the situation
created by House of Lord's decision
• Daycentre for Probationer
• There are at present nearly one hundred such centers operating in Britain.
• Thus the system of probation, supervision and conditional release on
license is now practiced as an effective After-care programme for
treatment and rehabilitation of offenders in United Kingdom.
Probation in Sweden
• Sweden is internationally known for its progressive penal philosophy and
initiative in the correctional field. Only twenty per cent of the total
number of offenders are sent to prison while the remaining 80 per cent
are subjected to correctional treatment method such as probation, parole,
half-way houses, work centres etc.
• Even the cases of those who are sent to prison are constantly reviewed so
that they can be transferred to non-institutional service as soon as
possible.
• The supervision of offenders under probation is entrusted to the
"Commission of Trust" consisting of volunteers who seek advice from
probation officer.
Probation in other European Countries
• Practiced in others countries of Europe.

• Its being used as effective after care remedy for treatment of juvenile
offenders.
• France, Russia and Germany adopted probation as a measure of social
defence.

• In Austria, probational remedies are mandatory for offenders under 18

years of age.

• Greece accepted it as a correctional measure in 1951.

• Similar system is adopted in Ireland, Israel, Italy, Switzerland, Netherland

and other European countries.
Probation in Japan
• The Japanese Code of Criminal Procedure, 1922 expressly stipulated the
discretionary power of the public prosecutors in matter of suspension of
prosecution and execution of sentence.
• The offenders, particularly the juvenile delinquents, are placed under
probationary supervision.
• The system of granting probationary supervision to those who are granted
suspension of the execution of sentence was fully introduced in Japan in 1955.
• Almost twenty per cent offenders are allowed probation under supervision while
eighty per cent are given probation without supervision. There is a network of
probation supervision officers to look after the probationers.
Origin of Probation in India
• The Hindu Law givers laid down that punishment must be regulated by
consideration of the motive and nature of the offence, the time and place, the
strength, age, conduct, learning and economic position of the offender and
above all, by the fact whether the offence was repeated.
• These ideas were envisaged by the Smriti writers as early as 300 B.C. The Though
in their writings there was no direct reference of release of offenders on
probation yet their views seem to support the modern concept of probation.
• In Manusmriti we found the modern idea of releasing an offender after gentle
admonition. Manu also told that after scientifically considering the tendencies of
repeated inclination in the offender, his antecedents and capacity the
punishment should be awarded.
Probation in India
• In India, probation is used as an institutional method of treatment
which is a necessary appendage of the concept of crime.

• The western view disfavour the use of institutional methods in a

legal system because it is likely to create problems.

• In their opinion probation service should be exclusively

administered by voluntary organisations and welfare boards
comprising sociologists, psychologists, psychiatrists, etc. and the
judges should not be associated in the functioning of these
agencies.
• The objective of the institutional treatment through probation is to
correct the effects of the causative factors of criminality in the
controlled atmosphere of probationary supervision, ulitising the
helpful factors in the offender's personality, his family situation,
attitude etc.

• This approach helps the probationer to restructure his life-pattern

with renewed vigor and adjust himself in the community through
healthy inter-personal relationships.
• The Indian probation law provides the judicial power should be
solely vested in the judiciary. The reason being that if the power of
probation is delegated to extra-judicial agencies which lack judicial
techniques, it would create serious problems as these agencies will
be guided by their own value considerations.

• That apart, sociologists and psychologists would be concerned only

with the problem of offender's reformation and would not be able
to appreciate the legal implications of reformative measures.
Historical Perspective of Probation
Law in India
• In India, probation received statutory recognition for the first time in 1898
through section 562 of CrPC, 1898 (now section 360 of CrPC, 1973).
• Under the provision of this section, the first offender convicted of theft,
dishonest or any other offence under IPC punishable with not more than
two years of 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.
• Consequent to the Indian Jails Committees Report (1919-1920), the first
offenders were to be treated more liberally and could even be released
unconditionally after admonition. The first offenders were classified under
two categories:
• Male adult offenders over 21 years of age;
• Young male adult offenders under 21 years of age and female
offenders of any age.
• The release of offenders on probation could extended not only to offences
under IPC but also to offences falling under special enactments.
• Numbers of remand homes, certified schools and industrial schools were
established in Bombay, Madras and Calcutta.
• In 1931 the Government of India prepared a Draft Probation of Offenders
Bill and circulated it to the then Provincial governments for their views.
• However, the Bill could not be processed due to preoccupation of the
Provincial Governments.
• Later, the Government of India, in 1934, informed the Provincial
Governments that there were no prospects of central legislation being
enacted on Probation and they were therefore free to enact suitable laws
on the lines on the Draft Bill.
• As a result of the recommendations of the Jail Committee the Government
of Indian decided to have a comprehensive legislation on probation law in
India.
• To attain this objective, a Bill on Probation of Offenders was introduced in Lok
Sabha on November 18, 1957. On 18th November, 1957 an amendment to the
motion for consideration of the Bill was accepted by Lok Sabha and Rajya Sabha
discussed the motion on November 25-26, 1957 and concurred with the
suggestion that the Bill he referred to a Joint Committee of the Houses.
• Consequently, a Joint Committee (Mr. Hukum Singh was the Chairman) was
formed for considering the Bill to provide for release of offenders on probation or
after due admonition and matters connected therewith. The Joint Committee
handed over its report to Lok Sabha on 25th February, 1958. On the
recommendations of the Joint Committee the Probation of Offenders Bill was
introduced in the Parliament.
• Thus new era in the field of probation started in India by enactment of the
Probation of Offenders Act, 1958 (Act 20 of 1958) by the Parliament of
India on 16th May, 1958.

• The Act provides for different dates for different states and different parts
of the states to apply the Act ( except Jammu and Kashmir) so that they
will have an opportunity to create the necessary infrastructure before the
Act is applied.
The Probation of Offenders Act 1958
• Probation of Offenders Act 1958, contains elaborate provisions relating to probation of
offenders which are made applicable throughout the country. The act provides four different
modes of dealing with youthful and other offenders in lieu of sentence, subject to certain
conditions. These include:
• Release after admonition;
• Release on entering a bond on probation of good conduct with or without supervision,
and on payment by the offender the compensation and costs to the victim if so ordered,
the courts being empowered to vary the conditions of the bond and to sentence and
impose a fine if he failed to observed the conditions of the bond.

• Persons under 21 years of age are not to be sentenced to imprisonment unless the court
fails for a report from the probation officer or records reasons to the contrary in writing

• The person released on probation does not suffer a disqualification attached to a

conviction under any other law.
• Provisions of the probation act are not confined to juveniles alone, but
extends to adults also.
• It not only confined to offences committed under IPC, but extend to
offences under other special laws such as, prevention of corruption act,
1947; Narcotics and Psychotropic substances act, 1985 etc.
• Section 11 of the Act widens the scope of probation by adding an enabling
provision regarding the competence of the courts to make order under
the act in appeal and revision.
• The higher court have been empowered to grant probation in appropriate
cases, which was denied by the lower court.
• They may also cancel probation granted by the trial court.
• It has 19 sections in total

• Sec 1 – Short title, extent and commencement like this act may be called
as Probation of Offenders Act 1958
• Sec 2 – Definitions
• Sec 3 - Power of court to release certain offenders after admonition

• Offences under Sec 379, 380, 381 or 404, 420 of IPC

• Any offence punishable with imprisonment not more than two years,
or with fine or both under IPC or any other law

• No previous record of conviction is proved against him

• Can be release after due admonition.

• Sec 4 - Power of court to release certain offenders on probation of good
conduct:
• Sec 5 - Power of court to require released offenders to pay compensation
and costs – released under section 3 or section 4
• such compensation as the court thinks reasonable for loss or injury
caused to any person by the commission of the offence; and

• such costs of the proceedings as the court thinks reasonable

• Sec 6 - Restrictions on imprisonment of offenders under twenty-one

years of age

• Sec 7 - Report of probation officer to be confidential

• Sec 8 - Variation of conditions of probation –can be extended or reduced
the duration, bond should not exceed three years from the date of the
original order

• Sec 9 - Procedure in case of offender failing to observe conditions of

bond - may issue a warrant for his arrest or may, issue a summons to him,
sentence him for the original offence,

• Sec 10 - Provision as to sureties - The provisions of sections 122, 126,

126A, 406A, 514, 514A, 514B and 515 of the Code shall, so far as may be,
apply in the case of bonds and sureties given under this Act.
• Sec 11 - Courts competent to make order under the Act, appeal and revision and
powers of courts in appeal and revision
• Sec 12 - Removal of disqualification attaching to conviction – The person released on
probation does not suffer a disqualification attached to a conviction under any other
law
• Sec 13 - Probation officers - A probation officer under this Act shall be

• a person appointed to be a probation officer by the State Government or

recognised as such by the State Government
• a person provided for this purpose by a society recognised in this behalf by the
State Government

• In any exceptional case, any other person who, in the opinion of the court, is fit to
act as a probation officer in the special circumstances of the case
• Sec 14 - Duties of probation officers
• inquire, in accordance with any directions of a court, into the circumstances
or home surroundings of any person accused of an offence with a view to
assist the court in determining the most suitable method of dealing with him
and submit reports to the court;
• supervise probationers and other persons placed under his supervision and,
where necessary, endeavour to find them suitable employment;
• advise and assist offenders in the payment of compensation or costs
ordered by the Court;
• advise and assist, in such cases and in such manner as may be prescribed,
persons who have been released under section 4; and
• perform such other duties as may be prescribed.
• Sec 15 - Probation officers to be public servants - Every probation officer
and every other officer appointed in pursuance of this Act shall be deemed
to be public servants within the meaning of section 21 of the Indian Penal
Code (45 of 1860)
• Sec 16 - Protection of action taken in good faith – No other legal
proceeding shall lie against the State Government or any probation officer
or any other officer appointed under this Act in respect of anything which
is in good faith done or intended to be done in pursuance of this Act or of
any rules or orders made there under
• Sec 17 - Power to make rules

• The State Government may, with the approval of the Central

Government, by notification in the Official Gazette, make rules to carry
out the purposes of this Act. In following matters:
• appointment of probation officers, the terms and conditions of their
service and the area within which they are to exercise jurisdiction

• duties of probation officers under this Act and the submission of

reports by them

• any other matter which is to be, or may be, prescribed

• Sec 18 - Saving of operation of certain enactments
• Nothing in this Act shall affect the provisions of section 31 of the
Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of
section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), 1* * *
or of any law in force in any State relating to juvenile offenders or
Borstal Schools.
• Sec 19 - Section 562 of the Code not to apply in certain areas, (CrPC 1898)
• Subject to the provisions of section 562 of the Code shall cease to
apply to the States or parts thereof in which this Act is brought into
force.
Other Enactments of Probation in
India
• Besides probations of offenders act 1958, the provisions of sections 360 and 27 of CrPC,
1973 and Juvenile Justice (Care and Protection of Children) Act, 2000 also provide for
release of certain offenders on probation.
• Section 360 - Order to release on probation of good conduct or after admonition.
• 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 two 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 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:
Limitations of Section 360
• The section excludes certain types of offences (for which draconic
punishment is provided) from the purview of the probation of offenders
act, 1958.

• The section prescribes certain age limit for offenders to be admitted for
release on probation
• The section explicitly provides that probation applies only to the first
offenders
• Section 27 of JJ Act - Jurisdiction in the case of juveniles.

• Any offence not punishable with death or imprisonment for life,

committed by any person who at the date when he appears or is
brought before the Court is under the age of sixteen years, may be
tried by the Court of a Chief Judicial Magistrate, or by any Court
specially empowered under the Children Act, 1960 (60 of 1960 ), or
any other law for the time being in force providing for the treatment,
training and rehabilitation of youthful offenders

• The age limit is now increased to 18 under JJ Act, 2000

• The JJ Act, 2000 which come into force w.e.f. December 30, 2000
provides for the release of children who have committed offences,
on probation of good conduct and placing them under the care of
their parents or guardians or other persons executing a bond, with
or without sureties to be responsible for good behaviour and well
being of the juvenile for any period not exceeding three years.

• Before allowing a child on probation the Juvenile Justice Board may

make suitable enquiries.