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Published : November 13, 2013 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 1993 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Reformation Would Reduce Pressure

(Application of the Probation of Offenders Act,1958)
(A Treatment to Youthful Offenders)


An accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals.

The object of Criminal Law is more to reform the offender than to punish him. Instead of keeping an accused with hardened criminals in a prison, Court can order personal freedom on promise of good behavior, and can also order a period of supervision over an offender. This is what we generally call as ‘ Probation’. Simply, it can be understood as ‘ the conditional release of an offender on the promise of good behavior’. In the 1965, the Hon’ble Supreme Court noticed that this Probation of Offenders Act is a mile stone in the progress of the modern liberal trend of reform in the field of penology. The underlying object of the provisions of this Act obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals. The Probation of Offenders Act,1958 consists only 19 sections. These provisions are very to understand. What all requires is that application of this provisions with due attention. The Probation of Offenders is a Social legislation which is meant to reform juvenile offenders so as to prevent then from becoming hardened criminal by providing an educative and reformative treatment to them by the Government. This is observed in Musadhan vs State of Maharastra, AIR 1976 SC 2566

How To Understand The Probation Of Offenders Act,1958
This is a simply Act to understand but is very important Act. For easy understanding and remembering the provisions of the Act, firstly, we have to divide the provisions into six (6) categories (i). Sections 1 deals with short, title, extent and commencement of the Act whereas section 2 deals with definitions; (ii). Sections 3 to 12 of the Act are very important inasmuch as these provisions deal with ‘Role of Court’ for the application of provisions of the Act; (iii). Section 13 to 16 deal with ‘Role of Probation Officer’; (iv). Section 17 deals with power of Government to make rules; (v) section 18 deals with saving of operation of certain enactments; and (vi). section 19 says as to application of this Act to certain States. Out of these six categories, section 3 to 12 of the Act need some discussion whereas elaborate discussion as to other categories is not necessary because one can easily understand those by reading them. Therefore, this article give succinct information mostly with regard to section 3 to 12 of the Act. To avoid confusion, section 3 to 12 of the Act will be discussed under the heading of ‘Role of Courts’.

Role of Courts:
Sections 3 to 12 say the procedure to the Court to release the offender either on admonition or on probation of good conduct. There are five (5) important aspects which need to be discussed for better application of these provisions. Other aspects do not need much discussion because those are very easy to understand. The Five aspects are 1. Admonition; 2. Probation of Good Conduct; 3.Compensation and Costs; 4. Offenders under 21 years of age; 5. Report of Probation Officer.

(1). Admonition (Section 3):-
Admonition means reprimand. (In Telugu, ఉపదేశము, బుద్ధి చెప్పడం, బోధించుట). Section 3 of the Act says about the procedure how an offender can be benefitted on the ground of admonition. The Court has to power to release offenders after admonition under section 3 of the Act after satisfying the following conditions:

1. For the offences punishable under section 379, or 380 or 381 or 404 or 420 of Indian Penal Code,1860 or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law; 2. Offender should not previously be convicted for the same offence. 3. The Court considers the nature of the offence and the character of the offender. 4. The Court may release the offender on probation of good conduct applying section 4 of the Act, instead of sentencing him. And 5. The Court may release the offender after due admonition, instead of sentencing him.

(2). Probation of good conduct :- Section 4 of the Act is very important provision. The following important points are to be remembered to apply this provision.

(1) Section of 4 of the Act is not applicable if the offender is found guilty for offence with death or imprisonment for life. (2) Section 4 of the Act applies to all offences except for offences punishable with death or imprisonment for life. It was observed in Smt. Devki v. State of Haryana, AIR 1979 SC 1948 that Section 4 would not be extended to the abominable culprit who was found guilty of abducting a teenage girl and forced her to sexual submission with commercial motive.

(3) The Court has to consider the circumstances of the case including the nature of the offence and the character of the offender.

(4). Under this section, without sentencing the offender to any punishment, the Court may release the offender on probation of good conduct. The Court may give direction to the offender to execute bond, with or without sureties, to appear and receive sentence when called upon during such period which should not exceed period of three years. The Court may direct the offender to maintain keep the peace and be of good behavior.

(5) Report of Probation officer is not mandatory to apply this provision but if report is available on the record, the Court shall take into consideration the report of probation officer before making an order of probation of good conduct. (6) In addition to passing the order of release the offender on probation of good conduct, the court may pass supervision order. The period of supervision should not be less than one year. In such a case, Probation officer will supervise the offender for such a period. The name of Probation officer should be mentioned in the supervision order. The Court may put appropriate conditions in the supervision order and the court making a supervision order under sub-section

(3) shall explain to the offender the terms and conditions of the order. Such supervision order should forthwith be furnished to the offender.

(3). Compensation and costs.
If an offender is released under section 3 or 4 of the Act, the Court may further direct the offender to pay compensation and costs to the victim for loss or injury to the victim (section 5 of the Act). It was observed in Rajeshwari Prasad v. Ram Babu Gupta, AIR 1961 Pat 19, while assessing the quantum of compensation, it is purely in the discretion of the court to allow compensation and costs if it thinks reasonable in the case.

(4). Offenders under 21 years of age:-
Although there is some restrictions under section 3 of the Act to release the accused on admonition or probation of good conduct, section 6 can be applied to all offence except an offence punishable with death or imprisonment for life. This provision says offenders who are under 21 years of age are not sent to prison which offence is not so serious as to warrant imprisonment for life. Age of offender has to be reckoned on the date of commission of the offence as was considered in AIR 1977 SC 698. In all cases where accused is below 21 years of age, the Court shall call for the report of Probation Officer. If the Court opines that it would not be desirable with offender either on the ground of admonition (section 3) or on the ground of release on probation of good conduct (section 4), the Court can pass sentence of imprisonment on the offender who is under 21 of years age but the Court cannot sentence him without recording reasons for doing so. The Court has an obligation to see whether section 3 or 4 of the Act applies or not. For this purpose, the Court must call for the report of Probation Officer. Therefore, report of Probation Officer is mandatory when the offender is under 21 years of age. Further, the Court also considers the fact and circumstances of the case including the nature of the offence and the character, physical and mental condition of the offender. Unless the Court considers the report of Probation Officer, it is difficult to the court to come to conclusion whether section 3 or 4 of applies or not. Therefore, report of Probation Officer is mandatory under section 6 of the Act. On receiving report, the Court peruses it and decides whether the offender can be released on admonition or probation of good conduct or not. After perusal of report, if the court opines that offender shall not be released applying section 3 or section 4 of the Act, the Court can pass sentence on the offender recording reasons for doing so.

(5). Report of probation officer

Inasmuch as the character, physical and mental condition of the offender are essential factor for consideration, the report of the Probation Officer is very important. Section 4 says Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. The word ‘ if any’ has some meaning. It can be easily understood that no report of Probation officer is mandatory to release the offender on probation of good conduct. However, if such report is available on the record, the Court shall not ignore it and that the Court shall take the report in consideration. No Probation Officer’s report is necessary to apply section 4 of the PO Act but such report is must under section 6 of PO Act if the offender is under 21 years of year Now, let me allow to consider the section 6(2) of PO Act. The words ‘the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender’ have some meaning. One can understand that the Court shall call for the report of Probation Officer under this provision. It is the duty of the Court. As was observed in AIR 1983 SC 654, Section 6 lays down an injunction on the Court not to impose a sentence on persons who are below the age of 21 years for the offences punishable with imprisonment but not with imprisonment for life. It is now pertinent to see the words in section 6(2) of the Act ‘and consider the report, if any,’. The word ‘ if any’ is found in section 6(2) of the Act like in section 4(2) of the Act. As already observed supra, the Court shall call for report. Now, the question is that if report of Probation Officer is not called and there is no material available on the record as to character, physical and mental condition of the offender, what the court has to do. It was noticed in Dasappa v. State of Mysore, AIR 1965 Mys 224, where the fact as to the age of the offender was never brought to the notice of the court nor was there any evidence as regards his character, the section did not prohibit the passing of an order of imprisonment against accused found guilty of an offence though he is under twenty-one years of age. As per this ruling, although there is no evidence as to character and age of the offender, the court has power to order imprisonment against accused.

Case - Law on Sections 3, 4 And 6 of The Po Act

Section 3 Section 4 Section 6
1. The Hon’ble Apex Court heldinKeshav Sitaram Sali v. State of Maharashtra, AIR 1983 SC 291  that in a case of petty theft the High Court should have extended the benefit of either section 360 of the Code of Criminal Procedure or sections 3 and 4 of the Probation of Offenders Act to the appellant instead of imposing a sentence of fine on him.

(2) In Basikesan v. State of Orissa, AIR 1967 Ori 4, it was considered that a  youth of 20 years was found guilty of an offence punishable under section 380 of Indian Penal Code, 1860 and no previous conviction was proved against him. It was held by the court that the offence committed by the accused was not out of deliberate preparation or design but it was a fit case for application of section 3 and he be released after due admonition; 
 
(3) In the case of Ahmed v. State of Rajasthan,AIR 1967 Raj 190, it was observed that  the benefit of this Act can not be extended to a person who has indulged in an act which has resulted into an explosive situation leading to possibilities of communal tension;
(1) If the court forms the opinion that it is expedient to release the offender on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Thus section 4 can be resorted to when the court considers the circumstances of the case, particularly the “nature of the offence” and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probition of good conduct; Dalbir Singh v. State of Haryana, AIR 2000 SC 1677.

(2) The provision of this section should not be mistaken as undue leniency not should it be applied leniently in undeserving cases where the offender in his early twenties, committed a reprehensible offence of rape on his neighbour’s wife, the court refused to release him on probation and convicted him in view of the heinous nature of the crime; Phul Singh v. State of Haryana, AIR 1980 SC 249.

(3) In case of gold smuggling, the Supreme Court has declined to accord to the accused found guilty, the benefit of Probation of Offenders Act because smuggling of gold not only affects public revenue and public economy, but often escapes detection; State of Maharashtra v. Natverlal, AIR 1980 SC 593.
1. As was held in Daulat Ramv. State of Haryana, AIR 1972 SC 2434, the object of section 6 is to ensure that juvenile offenders are not sent to jail for offences which are not so serious as to warrant imprisonment for life, with a view to prevent them from contamination due to contact with hardened criminals of the jail. Therefore, the provision should be liberally construed keeping in view the spirit embodied therein; 

2. It was noticed in Dasappa v. State of Mysore, AIR 1965 Mys 224, where the fact as to the age of the offender was never brought to the notice of the court nor was there any evidence as regards his character, the section did not prohibit the passing of an order of imprisonment against accused found guilty of an offence though he is under twenty-one years of age.  

3. It was held in Ramji Nissar v. State of Bihar; AIR 1963 SC 1088, the question of age of the person is relevant not for the purpose of determining his guilt but only for the purpose of punishment which he should suffer for the offence of which he is found guilty. Therefore, where a court found that offender was not under the age of 21 years on the date when court found him guilty, sub-section (1) of section 6 will not apply; 

4. It was considered in Mafaldina Fernandese v. State, AIR 1968 Goa 103 that the section contemplates than an offence punishable with imprisonment, not being imprisonment for life, must invariably be allowed to be released on admonition or probation unless there are reasons to be recorded having regard to the nature of offence and the character of offender

For What Offences, It Cannot Be Applied?
It was settled law that nobody can claim benefit under PO Act as a matter of right. This was clearly held in AIR 2001 SC 2058. It was observed in State Of Sikkim vs Dorjee Sherpa And Ors, 1998 CriLJ 2685 that decisions reported in AIR 1983 SC 654 : 1983 Cri LJ 1043 ( Masarullah v. 1State of Tamil nadu ) and 1981 (Supp) SCC 17 ( Aitah Chander v. State of A.P.) have also been referred to contend that the Court should not take technical views in such cases and should take into consideration some other aspects such as possibility of losing the job, for invoking the provisions of Probation of Offenders Act even in serious offences. It has further been contended that the Court should also take into consideration that the convicts belonging to middle class families without any criminal antecedent often become victim of circumstances because of undesirable company and other evil influences available to such young generation. Provisions of Probation of Offenders Act,1958 normally cannot be applied to the following offences:

1. ACB cases (AIR 1983 SCC 359).
2. Section 304 part-II of IPC ,
3. NDPS Cases ( (2002) 9 SCC 620),
4. Section 304-A (AIR 2000 SC 1677),
5. Section 325 IPC,
6. Sections 409, 467, 471 IPC (AIR 2001 SC 2058;),
7. Kidnap and, abduction (AIR 1979 SC 1948),
8. Habitual offenders, (Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117), etc.

Conclusion:
Probation of Offenders Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith. In the case of Ramji Missir v. State of Bihar [1962] Supp. 2 S.C.R. 745 wherein Supreme Court while dealing with the Probation of Offenders Act observed that its beneficial provisions should receive wide interpretation and should not be read in a restricted sense. Nobody can claim benefit under PO Act as a matter of right. (AIR 2001 SC 2058). Report of Probation Officer referred to in sub section 2 of section 4 or section 6 (2) must be confidential. To apply section 6 of PO Act, Court shall call for report as required under section 6 (2) of the Act. But, to invoke section 4, if there is report of Probation Officer, Court shall take it into consideration. There is no age restriction to apply section 4 of PO Act. (AIR 1982 SC 784(1)). Section 6 lays down an injunction on the Court not to impose a sentence on persons who are below the age of 21 years for the offences punishable with imprisonment but not with imprisonment for life. (AIR 1983 SC 654). Section 8 says that court can vary the conditions of probation. Section 9 says that Court can pass sentence offender for the original offence, if he fails to observe conditions. Section 10 says that Cr.P.C applies as to sureties. Under section 11 of PO Act, appeal, revision Courts have power to make order under the PO Act. Section 12 deals with removal of disqualification attaching to conviction but the offender who subsequently sentenced for the original offence. Section 13 says as to appointment of Probation Officer, section 14 says duties of Probation Officer such as inquiry, supervision, advice and assist offenders etc. Section 15 says PO must be public servant; section 16 gives protection, for acts of good faith, to PO. Section 17 says that the State Govt. has power to make rules; Section 18 Saving clause as to Section 31 of Reformatory Schools Act,1897, or section 5 of the Prevention of Corruption Act,1947 or any law in force in any State relating Juvenile Offenders or Borstal Schools. Section 19 says as to application of this Act to certain States. No doubt, the process of reformation may not be easy but is still relevant to ensure less pressure on offender and judiciary.
************************
# Ishar Das vs State of Punjab, AIR 1972 SC 1295
# Rattan Lal v. State of Punjab, 1965CriLJ360, MANU/SC/0072/1964
# Section 20 of the Act applies to State of Gujarat

# Short title, extent and commencement.—(1) This Act may be called the Probation of Offenders Act, 1958. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette appoint, and different dates may be appointed for different parts of the State. Section 2 of the Act deals with Definitions.—In this Act, unless the context otherwise requires— (a) “Code” means the Code of Criminal Procedure, 1898 (5 of 1898) [Now see Code of Criminal Procedure, 1973 (2 of 1974)]; (b) “probation officer” means an officer appointed to be a probation officer or recognised as such under section 13; (c) “prescribed” means prescribed by rules made under this Act; (d) words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1898 (5 of 1898) [Now see Code of Criminal Procedure, 1973 (2 of 1974)], shall have the meanings respectively assigned to them in that Code.

# The benefit of section 3 or section 4 of the Probation of Offenders Act is subject to the limitation laid down in these provisions. The word ‘may’ in section 4 does not mean ‘must’. This was observed in Ram Prakash v. State of Himachal Pradesh, AIR 1973 SC 780.

# As was held in Dasappa vs State of Mysore, AIR 1965 Mys 224, the release of probationer on bond with or without sureties on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from the evil effects of institutional incarceration and affords him an opportunity of reformation within the community itself. It is a discretionary remedy rather than a mandatory one.

# The benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life. This was held that State of Gujarat v. A. Chauhan, AIR 1983 SC 359.
# 1994 SCC (Crl.)1715
# AIR 1977 SC 784 (1). But, in another case (AIR 1977 SC 1991), PO Act applied for offence under section 325IPC




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