Supreme Court: The court must call report of probation officer before considering the grant of benefit of probation to accused

 We are conscious that in MCD (supra), since followed in State of Madhya Pradesh v. Man Singh   MANU/SC/1505/2019 : 2019:INSC:1201 : (2019) 10 SCC 161, this Court has held that the report of the probation officer referred to in Sub-section (2) of Section 4 of the Probation Act is a condition precedent and, therefore, must be complied with by the trial courts and the high courts. Importantly, it has also been held that the courts may not be bound by such report. {Para 30}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2065 of 2025 

Decided On: 22.04.2025

Chellammal and Ors. Vs. State represented by the Inspector of Police 

Hon'ble Judges/Coram:

Dipankar Datta and Manmohan, JJ.

Author: Dipankar Datta, J.

Citation: 2025 INSC 540, MANU/SC/0538/2025.

Read full judgment here: Click here.

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Supreme Court: Court Can’t Omit From Its Consideration Release Of Offender On Probation Unless Applicability Is Excluded In Case Where S. 4(1) Probation Act Is Attracted

Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in Sub-section (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor. {Para 28}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2065 of 2025 

Decided On: 22.04.2025

Chellammal and Ors. Vs. State represented by the Inspector of Police 

Hon'ble Judges/Coram:

Dipankar Datta and Manmohan, JJ.

Author: Dipankar Datta, J.

Citation: 2025 INSC 540, MANU/SC/0538/2025

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Whether JJB can transfer the juvenile to children court based on the report of probation officer?

  From the aforesaid excerpt, it becomes clear that when the word 'may' is used in an enactment in respect of a Court, the same has to be understood as 'shall'.{Para 12}

13. Looking to the fact that the order transferring the case of Juvenile between 16 to 18 years of age to the Children Court in itself is a step which needs to be taken very cautiously looking to the far reaching consequences and it would indeed be appropriate that the word 'may' be read as 'shall'.

14. Now the question is whether the Probation Officer can be considered to be an expert in the sense as described in the proviso to Section 15 of the Act. The aforesaid proviso requires assistance of experienced psychologists, or psycho social workers or other experts. Rule 10(a) expands the word "other experts" as "other experts who have experience of working with children in difficult circumstances". An expert can be considered to be one, who by way of his profession deals with a specialized subject. Probation Officers are such professionals who on daily basis work with children in difficult circumstances, hence a Probation Officer fits the bill of "other experts" as provided under Section 15 of the Act. Form No.6 which is the social investigation report for children in conflict with law, is required to be submitted by the Probation Officer. Various columns therein not only take into account social environment but also psychology of the child. Such a report by Probation Officer was considered to be a relevant feedback for obtaining preliminary assessment as per Section 15 of the Act in the judgment of Ashish Vs. State of Haryana (CRR No.851/2017 High Court of Punjab and Haryana, Chandigarh).

15. Broadly speaking, the preliminary assessment report should have shown conclusions regarding the following aspects:-

(i) Mental capacity to commit such offence.

(ii) Physical capacity to commit such offence.

(iii) Ability to understand the consequences of the offence and

(iv) Circumstances in which the juvenile in question had allegedly committed the offence.

16. The explanation to Section 15 makes it clear that the preliminary assessment is not a trial but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. The Apex Court in the case of Shilpa Mittal Vs. State of NCT of Delhi and Another in Criminal Appeal No.34/2020 (Arising out of SLP (Cri.) No.7678 of 2019) vide judgment dated 9.1.2020 has observed as under:-

"16............................... The explanation makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child to commit and understand the consequence of the offence. If the Board is satisfied that the matter can be disposed of by the Board, then the Board shall follow the procedure prescribed in summons cases under the Cr.P.C."

17. In the present case the Board, by way of extra caution, did not totally bank upon the Probation Officer's report but has individually prepared a questionnaire and has put questions in a manner so as to assess the mental capacity of the juvenile. Although the questions relate to the facts of the case but the purpose therein appears to be, as to whether the juvenile understands the gravity of the impugned act and its consequences. The manner in which the juvenile has responded to the questions, shows that he is articulate enough  to respond in a manner showing his adequate capacity to understand the gravity of the offence and consequences thereof and, therefore, he has answered in a manner displaying his innocence and non involvement in the crime.

20. The applicant is decidedly above 16 years of age, which has not been controverted and the offence for which he is accused of, is a heinous offence as per Section 2(33) of the Act.

21. After considering all these aspects, the Juvenile Justice Board has arrived at its conclusion which has rightly been affirmed by the appellate court.

22. It is not as if the applicant would invariably be tried as an adult after his transfer to the Children Court because as per Section 19 of the Act of 2015, the Children's Court may again decide that there is no need for trial of the child as an adult and the Children Court may itself conduct an enquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18 of the Act. Thus, the Act of 2015 embodies multilayered checks and balances in respect of the manner such a juvenile ought to be dealt with.

Madhya Pradesh High Court

Ozaif Khan (Minor) Through ... vs The State Of Madhya Pradesh on 21 September, 2021

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Whether it is mandatory to obtain report of probation officer before releasing accused on probation?

 Another error is that the order quoted hereinabove has been passed in violation of the provisions of Section 4 of the Act which mandates that before releasing any offender on probation of good conduct, the Court must obtain a report from the Probation Officer and can then order his release on his entering bonds with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, or as the Court may direct, and in the meantime to keep peace and good behaviour. The proviso to Sub-section (1) of Section 4 clearly provides that Court cannot order release of such an offender unless it is satisfied that the offender or his surety has a fixed place of abode or regular occupation in the place over which the Court can exercise jurisdiction. Sub-section (2) lays down that before making any order Under Sub-section (1), the Court shall take into consideration the report of the Probation Officer. This Court in a number of judgments has held that before passing an order of probation, it is essential to obtain the report of the Probation Officer concerned. Reference in this behalf may be made to M.C.D. v. State of Delhi and Anr. MANU/SC/0376/2005 : AIR 2005 SC 2658.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 410 of 2011

Decided On: 04.11.2019

State of Madhya Pradesh  Vs. Man Singh

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

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Guidelines of Bombay High Court under Probation of Offenders Act

 Criminal
Manual issued by the High Court in Chapter XI paragraph 4
has given guidelines under the Probation of Offenders Act
as under :-
“4. The Act lays down three
distinctive methods of treatment for different
classes of offenders :-
(a) Section 3 deals exclusively
with first offenders, who are convicted of an
offence punishable with not more than two
years' imprisonment. It provides for release
of such offenders after due admonition. This
method of treatment is likely to be effective
only for a small number of offenders, as it
provides neither for bonds nor sureties and
merely sends the offender back, without any
constructive help, to live in the same
conditions, in which he lived when he
committed the offence.
(b) Section 4 (1) provides for
release on probation. It lays down that the
offender should enter into a bond and he may
also be required to give sureties. It would
normally be advisable to take sureties in
addition to personal bonds, as sureties are
themselves a guarantee of some efforts
towards reform and a safeguard against the

offender removing himself outside the
jurisdiction of the Court and breaking the
conditions of the bond entered into by him.
(c) Section 4 (2) provides for
release under the supervision of a Probation
Officer. This is the most constructive type of
treatment. Experience has proved that
offenders are far more likely to make good,
when placed under the guidance of a
Probation Officer. It is, therefore, advisable
that even in the case of first offenders, they
should be dealt with under Section 4(2) in
preference to discharge after admonition
under Section 3.
(d) Under Section 4(3), the
Court has power, while making a supervision
order, to direct additional conditions to be
inserted in the bond to be entered into by the
offender under Section 4(1), and in doing so
the Court must have regard to the particular
circumstances of each individual case.
The terms and conditions of the
supervision order shall be explained to the
offenders and one copy of the supervision
order shall be furnished forthwith to each of
the offenders, the sureties, if any, and the
Probation Officer concerned. The form of

supervision order has been prescribed under
the Rules made under the Act.
(e) In suitable cases, the
offender may be directed under Section 5 to
pay compensation and cost of proceedings to
the person to whom loss or injury has been
caused.
(f) During the period of his
probation, the offender has to keep away
from crime and maintain good behaviour. If
he fails to do so, he may be sentenced for the
offence of which he was convicted, or on such
first time failure, a penalty of fine not
exceeding fifty rupees may be imposed upon
him under Section 9 (3) of the Act.
(g) According to the mandatory
provision of Section 6, when any person
under 21 years of age is found guilty of an
offence punishable with imprisonment (not
for life), before passing any order of sentence
of imprisonment, the Court shall call for a
report from the District Probation Officer,
consider such report, if any, and then record
its reasons and pass such order to sentence
of imprisonment (except for life), as it deems
fit in the circumstances of the case.”

33] Keeping in view these guidelines as well as the
provisions of the Probation of Offenders Act, being major is
not a disqualification for consideration under the Probation
of Offenders Act. If the person has not been found guilty of
the offence punishable with death or imprisonment for life,
the provisions of the Act need to be considered, specially
when the accused is first time offender. The facts of the
case, social background and personal factors of the
accused are relevant. Under the proviso to Sub Section 1
of Section 4 of the Probation of Offenders Act, the Court is
required to ascertain whether the accused has a fixed place
of abode or regular occupation. Sub Section 2 of Section 4
lays down that the Court “shall” take into consideration the
report, if any, of the probation officer concerned in relation
to the case. Thus, calling of the report of probation officer is
necessary while considering the provisions of the Probation
of Offenders Act, 1958. In the present matter, the judgment
of the trial Court does not show that it called for the report

of probation officer.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 596 OF 2011

Bapu Vithalrao Jadhav,  Vs State of Maharashtra,

 CORAM : S.S. SHINDE &
 A.I.S.CHEEMA, JJ.
Pronounced on: 22.09.2015
Citation: 2016 ALLMR(CRI)2107

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When minor child accused of offence under POCSO Act can be released on bail?

In the case in hand the report of the probation officer says that the
applicant is a student of class X; that he is average at studies; that his
conduct is good; that he takes interest in constructive cultural activities; that
he has realised his guilt and is repentant for the same; that there is
improvement in his attitude and that looking to his overall interest, one
chance is required to be given to him. The report nowhere says that if the
applicant is released on bail, he would come into association with any known
criminal or it would expose him to moral, physical or psychological danger or
would it defeat the ends of justice.
Thus considering the facts and circumstances of the case and the
report of the Probation Officer, present revision is allowed. Orders impugned
are hereby set aside. Applicant is directed to be released on bail on his
guardian or parents furnishing a bond in the sum of Rs. 10,000 with one
surety for the like sum to the satisfaction of the concerned Juvenile Justice
Board and also on filing an affidavit by him/her before the said Board to the
effect that:
(i) he shall be responsible for well-being of his son/the applicant,
(ii) he shall ensure that the applicant continues his studies and does not
fall into bad company, and
(iii) he shall report to the concerned Juvenile Justice Board on 28.3.2016
and thereafter once in two months on the dates fixed by the Board
regarding the progress made by his son/the applicant, till the applicant
attains/completes the age of 18 years.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 814 of 2015

Kamesh Kumar Rambharosha Sahu Vs  State of Chhattisgarh 

Coram:
 Pritinker Diwaker, J
Dated: 11/01/2016
Citation:2016 CRLJ(NOC)134

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What are basic principles for grant of bail to juvenile?

On going through the aforesaid citations the legal position of
granting or rejecting bail to a delinquent juvenile is candidly clear.
While considering the bail application to juvenile provisions of Section
12 of the Act of 2000 should be seen and provisions of bail of the
Code of Criminal Procedure shall not govern juvenile's bail application.
Heinousness of offence is also has no relevance while considering the
bail matter of a delinquent juvenile.
10. It is for the prosecution to bring on record such material, including
the report of the Probation Officer to show that the release of the
delinquent juvenile on bail is likely to bring him into the association
with any known criminal or expose him to moral, physical or
psychological danger or his release would defeat the ends of justice.
11. As per above discussion I am of the opinion that both the Courts
below erred in rejecting the petitioner's bail application. There is no
possibility that if petitioner is released on bail, his release shall bring
him into association with any known criminal or expose him to moral,
physical or psychological danger or his release shall defeat the ends of
justice. Impugned order passed by the appellate Court and the orders
passed by the Juvenile Board are not sustainable in law and both the
Courts below committed jurisdictional error and illegality in passing
both the orders.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE SUSHIL KUMAR GUPTA
 Criminal Revision No.70/2015
 Rabi Khan alias Salman
V
State of Madhya Pradesh
Citation; 2015 CRLJ 3059
O R D E R
(30/1/2015 )
Per Justice Sushil Kumar Gupta :

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