Probation

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.1
The term probation is derived from the Latin word probare which means to test
or to prove. Etymologically, probation means I prove my worth.
Many offenders are not dangerous criminals but are weak characters or who
have surrendered to temptation or provocation. In placing such type of offenders,
on probation, the Court encourages their own sense of responsibility for their
future and protect them from the stigma and possible contamination of prison. 2
Object of POAThe Probation of Offenders Act, as observed by the Honourable Supreme Court in
the case of Jugal Kishore Prasad v. State of Bihar 3, was enacted in 1958 with a
view to provide for the release of offenders of categories on probation or after
due admonition and for matters connected therewith. The object of the Act is to
prevent the conversion of youthful offenders into obdurate criminal as a result of
their association with hardened criminals of mature age in case the youthful
offenders are sentenced to undergo imprisonment in jail. The above object is in
consonance with the present trend in the field of penology, according to which
effect should be made to bring about correction and reformation of the individual
offenders and not to resort to retributive justice. Modern criminal jurisprudence
recognizes that no one is a born criminal and that a good many crimes are the
product of social economic milieu. Although not much can be done for hardened
criminals, considerable stress has been laid on bringing about reform of young
offenders not guilty of very serious offences and of preventing their association
with hardened criminals. The Act statutory recognition to the above objective. 4
The discretion of the Court has to be exercised having regard to the
circumstances in which the crime was committed, the age, character and
antecedents of the offender. Such exercise of discretion needs a sense of
responsibility. The offender can only be released on probation of good conduct
under this section when the Court forms an opinion, having considered the
circumstances of the case, the nature of the offence and the character of the
offender, that in a particular case, the offender should be released on probation
of good conduct. The section itself is clear that before applying the section, the
Magistrate should carefully take into consideration the attendant circumstances. 5
1 Probation and Related Measures (New York) United Nations, Department of
Social Affairs. (1951) p. 287
2 Hari Kishan V. Sukhbir Singh and Ors., AIR1988SC2127
3 Jugal Kishore Prasad vs. State of Bihar, AIR1972SC2522
4 Ramnaresh Pandey V. The State of Madhya Pradesh, AIR1974SC35

Section 360 Crpc

Object of provision.--It is undesirable to send a youth of 16 or 17 to prison for
a first offence, unless it be serious one. The question is not whether the prisoner
is repentant or whether he has been guilty of moral turpitude. The object of
section 360 is to offer an alternative to the courts, so that in the case of first
offenders of tender years the courts may offer them a further chance to turn
over a new leaf. To send such persons to jail may have the effect of turning into
habitual criminals those who have drifted without thinking into crime. 6 The
benefit of probation can be denied only if there are special reasons which are
required to be recorded by the court. It is the duty of courts to consider why
compliance with section 360 can be dispensed with even if the accused does not
make any such request. Where lower court has failed to consider applicability of
section 360, the High Court is not precluded from considering the matter.7 The
section is intended to be used to prevent young persons from being committed
to jail, where they may associate with hardened criminals who may lead them
further along the path of crime and to help even men of more mature years who
for the first time may have committed crimes through ignorance or inadvertence
or the bad influence of others or who, being ignorant and misguided having been
led away from the path of rectitude by some superior whom they dare not
disobey, and who, but for such lapses might be expected to make good citizens. 8
361 CrpC
Object-It is only by providing special reasons that their applicability can be
withheld by the Court. The comparative elevation of the provisions of the
Probation Act are further noticed in Sub-section (10) of Section 360 of the Code
which makes it clear that nothing in the said Section shall affect the provisions of
the Probation Act. Those provisions have a paramountcy of their own in the
respective areas where they are applicable.9
If the Court refrains from dealing with an offender under Section 360 or under
the provisions of the Probation of Offenders Act, or any other law for the
treatment, training, or rehabilitation of youthful offenders, where the Court could
have done so, Section 361, which is a new provision in the 1973 Code makes it
mandatory for the Court to record in its judgment the 'special reasons' for not
doing so. Section 361 thus casts a duty upon the Court to apply the provisions of
Section 360 wherever it is possible to do so and, to state "special reasons" if it
does not do so. In the context of Section 360, the "special reasons"
contemplated by Section 361 must be such as to compel the Court to hold that it
5 M.C.D. Vs. State of Delhi and Anr., AIR2005SC2658
6 AIR 1942 Bom 215
7 Jai Prakash v. State, 1979 Cr LJ 1167 (Del)
8 AIR 1941 Mad 720 ; AIR 1957 AP 532.
9 Ramesh Dass V. Raghu Nath and Ors., AIR2008SC1298

is impossible to reform and rehabilitate the offender after examining the matter
with due regard to the age, character and antecedents of the offender and the
circumstances in which the offence was committed. This is some indication by
the Legislature that reformation and rehabilitation of offenders, and not mere
deterrence, are now among the foremost objects of the administration of
criminal Justice in our country. The personality of the offender as revealed by his
age, character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in determining
the sentence to be awarded. Special reasons must have some relation to these
factors.10
Enforcement of Probation Act in some particular area excludes the applicability of
the provisions of Sections 360, 361 of the Code in that area. 11 The aforesaid
position
was
highlighted
in
Chhanni
v.
State
of
U.P.
MANU/SC/8216/2006MANU/SC/8216/2006 : 2006CriLJ4068 and Daljit Singh and
Ors.
v.
State
of
Punjab
MANU/SC/8238/2006MANU/SC/8238/2006
:
(2006)6SCC159 .
Under Section 361 of the new Code, provision has been made for recording
special reasons in judgment for not dealing with an accused under Section 360 or
under the provisions of the Act in cases where the Court could have dealt With
such an accused under Section 360 of the new Code or under the provisions of
the Act or with a youthful offender under the Children Act, 1960, or any other law
for the time being in force for- the treatment, training or rehabilitation to youthful
offenders. A perusal of Section 360(10) of the new Code shows that the
Parliament had in mind the provisions of the Act, while enacting Section 360 of
the new Code.12
Undoubtedly, , under Section 361 of the new Code, reasons are to be recorded
for not dealing with an accused under the Probation of Offenders Act, if the Court
could have dealt with that accused under the Act. These provisions in Section
361, Cr. P.C. read with the provisions in Section 360(10), Cr. P.C. cannot make
inoperative the provisions hi Section 19 of the Act, which create a bar for
invoking Section 360 Cr. P.C. to a State or a part of a State wherein the Act has
been extended by a State.13
Distinction between POA and CrP.C. provisions of Probation
Where the provisions of the P.O. Act are applicable the employment of Section 360 of
the Code is not to be made. In cases of such application, it would be an illegality
resulting in highly undesirable consequences, which the legislature, who gave birth to
the P.O. Act and the Code wanted to obviate. Yet the legislature in its wisdom has
obliged the Court under Section 361 of the Code to apply one of the other beneficial
provisions; be it Section 360 of the Code or the provisions of the P.O. Act. It is only by

10 Bishnu Deo Shaw V. State of West Bengal, AIR1979SC964

11 Ramesh Dass V. Raghu Nath and Ors., AIR2008SC1298
12 1985CriLJ1183
13 1985CriLJ1183

providing special reasons that their applicability can be withheld by the Court. The
comparative elevation of the provisions of the P.O. Act are further noticed in Sub-section
(10) of Section 360 of the Code which makes it clear that nothing in the said Section
shall affect the provisions of the P.O. Act. Those provisions have a paramountcy of their
own in the respective areas where they are applicable.14

It is note-worthy that Section 361 of the New Code of Criminal Procedure makes
it incumbent upon a Court, if it does not want to deal with a case of an accused
person either under Section 360 of the Code of Criminal Procedure or under the
provisions of the Probation of Offenders Act (1958), to record special reasons in
the judgment for not having done so. There was no analogous provision in the
Old Code. The spirit of the Legislation now is that the twin beneficial provisions
should alternatively be available to every Court be it whether in the form of
Section 360 of the New Code or in the form of the provisions of the Act.

The broad distinctive features are these:

(i) The Act is operative in specified areas, but the Code is of universal application
in the country. Where the Act is applicable, the provisions of Section 360 of the
Code of Criminal Procedure, by virtue of Section 19 of the Act. cease to apply;
(ii) Specific areas are chosen by the State government to the applicability of the
Act having regard to the social economic and political conditions of its population
as also their character, moral fibre, law awareness, educational facilities,
employment opportunities, developmental conditions, mobility and such like
factors, the list being not exhaustive. These and other considerations noticeably
weigh with the State Government when it brings an area under the provisions of
the Act, for it tends to be more reformatory in character as compared to the
Code;
(iii) Under Section 360 of the Coda, release on probation is dependant on there
being on previous conviction against the offender. There is no such bar under the
Act; for offenders can be released under Sections 4 and 6 despite previous
convictions. The case of release after due admonition of the offender is at a
different footing both under Section 360 of the Code and Section 3 of the Act
where previous conviction of the offender is a bar to release him after due
admonition. The explanation- to Section 3 of the Act circumscribes that for the
purpose of that section, previous conviction of the person shall include any
previous order made under Section 3 or S. 4 of the Act.
(iv) The conviction or convictions for which the offenders are released on
probation of good conduct under the Act does not attract any disqualification.
Section 12 of the Act is a pointer in that direction providing that notwithstanding
anything contained in any other law, a person found guilty of an offence and
dealt with under the provisions of Section 3 or Section 4 shall not suffer
disqualification, if any, attaching to a conviction of an offender under such law.
The only exception to the rule is when a person after release under Section 4 is
subsequently sentenced for the original offence, in that case the dormant
conviction comes to activity and Section 12 of the Act is not applicable, On the
other hand order of release on probation of good conduct under Section 360,
14 Gulzar V. State of M.P., AIR 2008 SC 383

Code of Criminal Procedure does not remove the disqualification attaching to a

conviction and there is no provision like Section 12 of the Act in the Code.
Section 5 of the Act authorises the Court to require a released Offender to pay
compensation and costs. That compensation is payable for loss or injury caused
to any person by the commission of the offence, as also costs of the proceedings
may be assessed and imposed. These ancillary orders are part and parcel of the
framework of probation under the Act. On the other hand on releasing a person
under Section 360 of the Code of Criminal Procedure the Court cannot ask the
offender to pay the expenses properly incurred for the prosecution or to pay any
compensation for any loss or injury caused by an offence. The misunderstanding
in that regard has been settled by the Supreme Court in Girdhari Lal v. State of
Punjab MANU/SC/0210/1980MANU/SC/0210/1980(D). These orders can only be
passed if the Court imposes a substantive sentence of fine. In the absence
thereof orders as envisaged under Section 357 cannot be passed. In other words
when Section 360 of the Code has been applied, Section 357 would be rendered
inoperative; whether it be a case of Sub-section (1) or Sub-section (3) thereof.
Under the latter subsection the Court when imposing a sentence, of which fine
does not find a part, can pass an order requiring the accused person to pay
compensation of such amount to the person who has suffered any loss or injury
by reason of his act for which he has been so sentenced. Under Section 6 of the
Act, the Court is restricted from sentencing any person to imprisonment who is
less than 21 years of age, found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment for life). It can only do
so if having regard to the circumstances of the case including the nature of the
of-fence and character of the offender, it would not be desirable to deal with him
under Section 3 or Section 4 of the Act. And if the Court passes any sentence of
imprisonment on the offender, it shall record its reasons for doing so. For
releasing of an offender it need not send for the report of the Probation Officer,
but when it tentatively holds a view that he should not be so released then Subsection (2) of Section 6 of the Act makes it incumbent upon the Court to call a
report from the Probation Officer and consider it. Besides that the Court can have
other information available to it relating to the character, and physical and
mental condition of the offender. If it chooses to release an offender on
probation, it can set some conditions, and insert additional conditions under
Section 8 of the Act. On the other hand the power under Section 360 of the Code
does not per se make it obligatory on the Court to release an offender under 21
years of age. But Sections 360 and 361 of the Code put the operation of release
at the discretion of the Court and in case it is adverse to the offender the court
has only to supply special reasons for it.
(vii) The Court under the Act has the benefit of the aid of the Probation Officers
operative in the field. Section 14 of the Act provides the duties of the Probation
Officers, and one of them is to supervise the probationers and the persons
placed under their supervision, as also to make them to endeavour to find them
suitable employment. No such facility is available to the Court under Section 360
of the Code of Criminal Procedure. The reason is obvious; for where the Act is
operative the brood of Probation Officers are available, to carry out the purposes
of the Act, to advise the Court and to assist the offenders. To confer such facility
on a particular area, the State Government has to apply its mind objectively,
having regard to the peculiar nature of the defined area to be brought under the
Act. On the other hand the Code does not provide for any such machinery.

12. Having drawn such distinction between the spheres of the aforesaid two
provisions, it is of utmost importance that the trial Magistrates functioning in
their respective areas be well on guard for the applicability of the provisions
applicable for their areas and not the other. They have to bear in mind the
distinction so that where the provisions of the Act are applicable the employment
of Section 360 of the New Code be not made. In cases of such application, it
would be an illegality resulting in highly undesirable consequences, which the
legislature, who gave birth both to the Act and the Code, wanted to obviate. Yet
the legislature in its wisdom has obliged the Court under Section 361 of the New
Code to apply one or the other beneficial provisions; be it Section 360 of the New
Code or the provisions of the Act. It is only by providing special reasons that their
applicability can be withheld by the Court. The comparative elevation of the
provisions of the Act are further noticed in Sub-section (10) of Section 360 of the
New Code which makes it clear that nothing in the said section shall affect the
provisions of the Probation of Offenders Act, 1958, Those provisions have a
paramountcy of their own in the respective areas where they are applicable. 15
But in a more recent decision(that of Sanjay Dutt) SC feels thatSection 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
anamolous 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.16
Important in case of food adulterationIt must be remembered that adulteration is an economic offence prompted by
profit motive and it is not likely to lend itself easily to therapeutic treatment by
the probationary measure. It may be pointed out that the Law Commission also
in its Forty Seventh Report recommended the exclusion of applicability of the
probationary process in case of social and economic offences and presumably in
response to this recommendation, the Legislature has recently amended the
Prevention of Food Adulteration Act, 1954 by introducing Section 20AA
providing that nothing contained in the Probation of Offenders Act,
1958 or Section 360 of the CrPC, 1973 shall apply to a person convicted

15 State of Punjab V. Harbans Lal, 1983CriLJ13, (1983)ILR 1 Punjab and Haryana

444
16 Sanjay Dutt (A-117) V. The State of Maharashtra, through CBI (STF), Bombay,
AIR 2013 SC 2687

of an offence under the Act unless that person is under eighteen years
of age.17
The Order of release on probation is merely in substitution of the sentence to be
imposed by the Court. This has been made permissible by the statute with a
humanist point of view in Order to reform youthful offenders and to prevent them
from becoming hardened criminals. The provisions of Section 9(3) of the Act
extracted above would clearly show that the control of the of fender is retained
by the criminal Court and where it is satisfied that the conditions of the bond
have been broken by the offender who has been released on probation, the Court
can sentence the offender for the original offence. This clearly shows that the
factum of guilt on the criminal charge is not swept away merely by
passing the Order releasing the offender on probation. Under Sections 3,
4 or 6 of the Act, the stigma continues and the finding of the misconduct
resulting in conviction must be treated to be a conclusive proof. In these
circumstances, therefore, we are unable to accept the argument of the
respondents that the Order of the Magistrate releasing the offender on probation
obliterates the stigma of conviction.18
Judicial view in Sanjay Dutts case:
In the case of Sanjay Dutt, the Designated Court took a view on the basis of his
own confession that the weapons were not acquired for any terrorist activity but
they were acquired for self-defence, therefore, acquittal was recorded in respect
of charge under Section 5 of TADA.
Arguments seeking probation:
1) Though the prosecution involved him in Bombay Bomb Blast Case that he
had knowledge as to the conspiracy and had kept in his possession fire
arms and ammunitions as well as hand grenades knowing that the same
were from the consignment that had landed for use in the said Blasts, the
fact remains that the Designated Court did not accept the prosecution
story against him and rejected his involvement in the conspiracy as well as
any knowledge of the events as charged. The TADA Court has also held
that the prosecution has failed to prove that the alleged arms in
possession of the Appellant were from the same alleged consignment that
was used in the said blasts.
2) It was also contended from the side of the Appellant that in the year 199293, the Appellant and his family members were involved in helping people
residing in riots affected areas, more particularly, Behrampada,
predominantly having a Muslim population which was objectionable to
certain group of persons who were of the opinion that the Dutt family was
sympathizers of only the Muslim community. In fact, this leads to an attack
on Sunil Dutt in January, 1993 as well as threatening phone calls were
being received at their residence, including threats to the family members
being killed as well as the sisters of the Appellant being kidnapped and
17 Prem Ballab and Anr. V. The State (Delhi Admn.), AIR1977SC56
18 The Divisional Personnel Officer, Southern Railway and Anr. V. T.R. Chellappan
and Ors., AIR1975SC2216

raped. This lead to a great and serious apprehension that an attack could
be perpetrated upon the Dutt family in view of the fact that Shri Sunil Dutt
had already been attacked.
3) He asserted that he is not a habitual offender, and is not likely to commit
any offence in future. The TADA Court did not get any opportunity to
complain about the conduct of the Appellant in 19 years. He further
submitted that he has also suffered the agony of long trial of 13 1/2
(thirteen and a half) years. The stress and trauma of the same, besides
the fact that he has carried the tag of an alleged terrorist for 13 1/2
(thirteen and a half) years though unwarranted, and has been deprived of
the company of his daughter, is a punishment in itself. He has also stated
that he had suffered mentally, physically and emotionally in the last
several years.
4) He got married again in the year 2008 and is blessed with two children
aged 1 and 1/2 years and they need their father's presence in their life. He
further submitted that he has been actively involved in an AIDS charity
and raises funds for the free treatment of aids patients who cannot afford
the same, besides visiting the hospitals/centres. It is further submitted
that he is on the Board of Directors of "Save the Children Foundation" and
helping in raising funds for children who are needy, orphaned and
destitute as their Brand Ambassador for a long time, even prior to his
being charged in this case.
Judgements relied upon by the Counsel on behalf of Sanjay DuttSocial background and the personal factors of the crime-doer are very
relevant although in practice Criminal Courts have hardly paid attention to
the social milieu or the personal circumstances of the offender. 19
The object of the Act (Probation of Offenders Act) is to prevent the
conversion of offenders into obdurate criminals as a result of their
association with hardened criminals. The above object is in consonance
with the present trend in the field of penology, according to which, efforts
should be made to bring about correction and reformation of the individual
offenders and not to resort to retributive justice. 20
The scope of Section 4 of the Probation of Offenders Act is much wider. It
applies to any person found guilty of having committed an offence not
punishable with death or imprisonment for life. 21
Decision: The circumstances and the nature of the offence as
analysed and discussed above are so serious and we are of the
view that they do not warrant A-117 the benefit of the provisions
of the Probation of Offenders Act, however, taking note of various
aspects, we reduce the sentence to minimum period, viz., 6 years
to 5 years. The appeal is disposed of on the above terms.22
19 Ved Prakash v. State of Haryana, 1981 (1) SCC 447
20 Ratanlal v. State of Punjab, (1964) SCR 676
21 Chhani v. State of U.P., (2006) 5 SCC 396.
22 Sanjay Dutt (A-117) V. The State of Maharashtra, through CBI (STF), Bombay,
AIR 2013 SC 2687