Concept of Probation under Criminal Law

                The criminal justice system is gradually advancing from being retributive to reformative. Rationale behind probation law is 'to prevent the conversion of youthful offenders in obdurate criminals as a result of their association with hardened criminals of mature age, in case youthful offenders are sentenced to go imprisonment in jail'. (Jugal Kishor Prasad v. State of Bihar 1972 SC)

Applicability:

Section 19 of Probation of Offenders Act 1958 (hereinafter the Act) provides that as soon the Act will come into force, Section 562 of Code of Criminal Procedure 1898 hereinafter CrPc will cease to apply. CrPc was substantially renovated in its current form in 1973 in which Section 360 provides for the relief of probation. Apex Court in Channi v. State of Uttar Pradesh 2006 SC held that Section 360 of CrPc 1973 and provisions of the said Act cannot co-exist together on account of being considerable differences between them. Hence it became abundantly clear that if Probation of Offenders Act is in operation in an area than Section 360 will automatically cease to exist. It has been clarified in the Act by virtue of Section 1(3) that this act will come into force as and when State Government will notify. 

Nature:

Section 361 of CrPc provides for mandatory nature of relief. It provides that a court must record its reasons in writing of the court could have dealt with an accused under any of the following acts but had not done so i.e.

1.      Section 360 CrPc.

2.      Probation of Offenders Act 1958

3.      A youthful offender under Children's Act 1960

4.      Any other law for time being for rehabilitation of youthful offenders

Thus it becomes abundantly clear that legislature in its wisdom has obliged the court to mandatorily apply one or the other beneficial provisions as the case may be.

Probation under CrPc:

Section 360 makes two fold classifications

• .      Person above 21 years of age convicted of offence punishable with either fine only or with imprisonment of 7 years or less.

•  Person below 21 years of age or woman (of any age) convicted of offence not punishable with death or life imprisonment.

       And,

       No previous conviction is proved against the offender

Than the court in its discretion keeping in regard to age, character and antecedents of offender instead of convicting him at once may direct his release on bond (with or without sureties) to appear and receive sentence when called upon during such period(not to exceed 3 years).

Section 360 vis a vis Probation of Offenders Act 1958:

1.      Unlike Section 360, the Act has done away with the distinction on the basis of age or sex and all such offenders whether below 21 Years age or above are equally entitled to avail the benefit of release on probation of good conduct or after admonition.

2.      Under the Act, grant of probation is not confined to only first time offenders as is the case under Section 360 CrPc. Courts have wider discretion under the Act to release even  a previously convicted offender after recording due reasons.  Thus the scope and horizon of Act is much wider.

3.     Section 360 fails to provide any role of Probation officers in assisting the courts while the Act provides for it.

4.  Section 360 does not provide any disqualification attached with the conviction while Section 12 of Act specifically provided that a person released on probation shall not suffer any disqualification attached to the conviction of offender.

Hence, keeping in mind the object and tilt of criminal jurisprudence from retributive to reformative, courts are in bounden duty to honor the wisdom of legislature which is apparently not visible in lower courts judgments. As a homage which can be paid by young judges to the reformative jurisprudence and to lessen the burden of overflowing jails, it is the need of hour to strictly apply the law in letter and spirit.

                        

Harihar Gupta

LL.M.