LLM Notes: The Probation of Offenders Act, 1958: Reforming Offenders in India

 The Probation of Offenders Act, enacted in 1958, serves as a crucial component of the Indian legal system, offering a humane approach to dealing with offenders, especially juveniles and first-time offenders. Instead of focusing solely on punishment, the Act emphasizes reformation and rehabilitation, allowing convicts to reintegrate into society under supervision.

Meaning and Objectives

The term "probation" comes from the Latin word "probo," which means "to prove" or "to test". In legal terms, probation allows a person convicted of a minor offense to remain free under a suspended sentence, contingent upon good behavior and supervision by a probation officer. The essence of the probation system is that the offender is placed on probation instead of being fined or imprisoned. A probation order is made by the Magistrate, and the probationer undertakes to be bound by it. This involves entering into a recognizance, with or without sureties.

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Gauhati HC Extends Benefit Of Probation of offenders Act To Man Convicted U/S 498A IPC, Says Offence Was Not Heinous

 It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon’ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard. {Para 7}

8. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon’ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The Hon’ble Apex Court opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the Hon’ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word ‘may’ clearly indicates that the discretion is vested with the court whether to release the offender in exercise of power under section 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

9. It was further held by the Hon’ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

10. Now, in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

11. In the case in hand, the offence was committed on 11.02.2008. The nature of offence cannot also be said to be heinous in the given circumstances of the present case. The victim and the accused have got remarried as recorded hereinabove. The accused has also offered the Mohr, paid the maintenance awarded, the wife had also withdrawn the maintenance case and in view of the aforesaid, in the considered opinion of this Court that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused petitioner by this court in exercise of its revisonal power.

 THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./331/2013

MD. BADRUT ZAMAN Vs  THE STATE OF ASSAM

BEFORE

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

Date of Judgement : 19.12.2024.

Citation:  2024:GAU-AS:12939.

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Important provisions of Probation of Offenders Act, 1958

3. Power of court to release certain offenders after admonition.—When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of 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, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.

Explanation.—For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or Section 4.

4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

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Whether employer can remove employee from service even if he was released on probation of offenders Act?

 Yet another reason given by the High Court for interference with the order of discharge is that the criminal court released the Respondent on probation only to permit him to continue in service. The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation to discontinue the services of an employee convicted of an offence involving moral turpitude.1 The observations made by a criminal court are not binding2 on the employer who has the liberty of dealing with his employees suitably.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7011 of 2009

Decided On: 26.04.2019

 The State Bank of India  Vs.  P. Soupramaniane

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: AIR 2019 SC 2187

L. Nageswara Rao, J.

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Whether Provisions Relating To Probation U/S 360 of CRPC are Excluded By Probation Of Offenders Act?

The offence under Section 325 is punishable for a term which may extend
to seven years. The sentence imposed upon the appellant is of one year. The
finding of the High Court that Section 360 of the Code shall not have any
application is misreading of the bare provisions of the Code. Sub-Section (10) of
Section 360 of the Code specifically contemplates that the provisions of the
1958 Act or Children Act 1960 or any other law for the time being in force for
the treatment, training or rehabilitation of the youth of the offenders are not
affected by the Code. Therefore, the provisions of the Code are not excluded by
the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act,
are applicable in respect of the offenders before the Court. Therefore, we find
that the High Court misread the provisions of the 1958 Act to hold that such Act
is not applicable to the offender under the age of 21 years. The Court omitted
that Section 6 of the 1958 Act provides that an offender of less than 21 years if
found guilty of having committed an offence punishable with imprisonment (but

not with imprisonment for life), the Court by which the person is found guilty
shall not sentence him to imprisonment unless it is satisfied that, having regard
to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under
Section 3 or Section 4, and if the Court passes any sentence of imprisonment on
the offender it shall record its reasons for doing so. Thus, the High Court erred in
law in not granting benefit of probation to the appellant for an offence under
Section 325 read with Section 34 of the IPC.
13. The distinction is that under the 1958 Act, the Court is required to seek
report from the Probationary Officer before allowing an offender the benefit of
probation apart from satisfying other conditions, whereas there is no such
limitation while exercising the powers under Section 360 of the Code.
14. At this stage, it may be noticed that a two Judge Bench of this Court in
Sanjay Dutt v. The State of Maharashtra 2013 SCConline SC 252 considering the provisions of
Section 360 of the Code and Sections 3 and 4 of 1958 Act held that the coexistence
of such provisions would lead to enormous results. It was further held
that the intention to retain the provisions of Section 360 of the Code and 1958
Act at the same time in a given area cannot be gathered from the provisions of
Section 360 or any provision of the Code, when the Court held as under:-
“81) Section 360 of the Code of Criminal Procedure does not
provide for any role for probation officers in assisting the
courts in relation to supervision and other matters while the
Probation of Offenders Act does make such a provision.
While Section 12 of the Probation of Offenders Act states
that a person found guilty of an offence and dealt with under
Section 3 or 4 of the Probation of Offenders Act, shall not

suffer disqualification, if any, attached to the conviction of
an offence under any law. The Code of Criminal Procedure
does not contain parallel provision. Two statutes with such
significant differences could not be intended to co-exist at
the same time in the same area. Such co-existence would
lead to anomalous results. The intention to retain the
provisions of Section 360 of the Code and the Probation of
Offenders Act as applicable at the same time in a given area
cannot be gathered from the provisions of Section 360 or
any other provisions of the Code.”
15. We find that the attention of the Court was not drawn to sub Section (10)
of Section 360 which provides that Section 360 will not affect the provisions of
1958 Act or other similar laws for the time being in force for the treatment,
training or rehabilitation of youthful offenders. Still further, Section 4 of the
1958 Act has a non obstante clause, giving overriding effect over any other
provisions of law.
16. The conjoint reading of the provisions of both the statutes, we find that
the provisions of Section 360 of the Code are in addition to the provisions of the
1958 Act or the Children Act, 1960, or any other law for the time being in force
for the treatment, training or rehabilitation of youthful offenders.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1306 OF 2013

LAKHANLAL @ LAKHAN SINGH  Vs STATE OF MADHYA PRADESH

Dated:April 4, 2019.

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Whether court can award default sentence for non-payment of fine when he has given benefit of probation of offender Act to accused?

The Apex Court in Isher Das v. The State of

Punjab (AIR 1972 S.C. 1295), referring to the Prevention

of Food Adulteration Act and the Probation of Offenders

Act held thus:-

              " Mr Mahajan has argued that if the trial

        magistrate took the view that the accused-appellant in

        view of his age, should not be sentenced to undergo

        imprisonment, the learned magistrate should still have

        imposed the sentence of fine as prescribed by sub-

        section (1) of section 16 of the Act. In this respect, we

        are of the opinion that a sentence of fine also carries

        with it the consequence of imprisonment in case the

        accused fails to pay the fine. As the object of Probation



        of Offenders Act is to avoid imprisonment of the person

        covered by the provisions of that Act, the said object

        cannot be set at naught by imposing a sentence of fine

        which would necessarily entail imprisonment in case

        there is a default in payment of fine."

      20.    An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person

covered by the provisions of the Act, the said object cannot

be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the


view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.
                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                    THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

            THURSDAY, THE 29TH DAY OF OCTOBER 2015
                                     Crl.Rev.Pet.No. 1520 of 2010 
                                     
           SCARIA @ KARIACHETAN,
Vs

           STATE OF KERALA,                
Citation;2016 CRLJ530

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Whether court should give benefit of Probation of Offenders Act, 1958 to accused convicted for offence U/S 354 of IPC?

 Now we move to the question of sentence vis-à-vis the benefit

granted under the Probation of Offenders Act, 1958. In Azhar Ali

Vs. State of West Bengal, (2013) 10 SCC 31, this Court while

dealing with the question of applicability of 1958 Act to an offence

under Section 354 of IPC, found as follows:

“12. In the instant case, as the appellant has committed a

heinous crime and with the social conditions prevailing in the

society, the modesty of a women has to be strongly guarded

and as the appellant behaved like a roadside Romeo, we do not

think it is a fit case where the benefit of the 1958 Act should

be given to the Appellant.”

 In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9

SCC 681, this Court was dealing with probation of offenders in case

of offence of attempt to commit rape. The finding of this Court in

the said judgment is relevant for all the offences against the women,

which is as follows:

“6. According to us, the offence of an attempt to commit

rape is a serious offence, as ultimately if translated into

the act leads to an assault on the most valuable

possession of a woman i.e. character, reputation,

dignity and honour. In a traditional and conservative

country like India, any attempt to misbehave or sexually

assault a woman is one of the most depraved acts. The

Act (Probation of Offenders Act, 1958) is intended to

reform the persons who can be reformed and would

cease to be a nuisance in the society. But the discretion

to exercise the jurisdiction under Section 4 (of the

Probation of Offenders Act, 1958) is hedged with a

condition about the nature of the offence and the

character of the offender.”

In above case although this Court did not interfere with the benefit

of probation granted by the High Court due to peculiar facts of the

case however it did not approve the reasoning given by the High

Court.

 In the present case the accused is not a minor, rather he has

committed an offence against a minor girl who is helpless. Further,

it is clear from the evidence on record that he ran away only when

the prosecutrix screamed and PW3 came to the place of incident,

which goes on to show that the accused could have had worse

intentions. The offence is heinous in nature and there is no reason

for granting benefit of probation in this case. The Trial Court has

not given any special consideration to the character of the accused

apart from the fact that this was the first conviction of the accused.

We find this is far from sufficient to grant probation in an offence

like outraging the modesty of a woman.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF 2009

STATE OF RAJASTHAN Vs  SRI CHAND 

Bench: Pinaki Chandra Ghose, Uday Umesh Lalit

Citation; 2015 (4) Crimes 257 SC

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Whether court can impose default sentence for non-payment of compensation U/S 5 of Act probation of offenders Act?

               An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person

covered by the provisions of the Act, the said object cannot

be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the



view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.                                        

                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                   MR. JUSTICE B.SUDHEENDRA KUMAR

            THURSDAY, THE 29TH DAY OF OCTOBER 2015

                                     Crl.Rev.Pet.No. 1520 of 2010 ( )
                                
 SCARIA @ KARIACHETAN,S/O.IYPE,  V   STATE OF KERALA, 

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