Hate the crime, not the perpetrator. We have probably heard it a million times. It implies that we must abolish crime, which does not necessitate the removal of criminals. In India, criminal law focuses on mending criminals rather than punishing them.
Punishment does provide a sense of satisfaction to both society and the victim, but it does not rehabilitate the culprits. When someone gets released from prison, rights get abused, especially in incarceration. Juveniles are particularly vulnerable to this abuse. Their minds are immature, and they become distracted when confronted with a group of criminals in jail. And thus, the Probation of Offenders Act has been regulated.
What is Probation?
A person convicted of a crime staying in the community rather than being imprisoned is on probation.
Probation entails following specific court-ordered rules and restrictions while under the supervision of a probation supervisor.
The Deterrence Doctrine, which laid the foundation, has evolved into a reformist approach with time.
In a study, it was determined that reintegration into the society of offenders after release declines. They could have issues working with professional delinquents as well. So, it has an unfavourable effect on the convicted person and their life afterwards.
Probation of Offenders Act 1958 protects minor offenders from becoming regular criminals. They can choose to reform themselves rather than go to prison to accomplish this. The probation officer reaches out to the accused’s needs and challenges in a kind manner and attempts to resolve the issue, which gets done for those convicted of lesser offences.
Scope and Background of Probation of Offender Act
- Because it promotes the current liberal reform movement, the Probation of offender Act constitutes a landmark milestone in the study of criminology. It stems from the idea that criminal law is more concerned with rehabilitating the individual offender than punishing them.
Indian probation gets influenced by the “positivism” juvenile justice system, which developed from the criminal justice system’s ideals. Early English legal traditions gave rise to probation, which originated in the nineteenth century.
In the early twentieth century, different countries, including Europe and North America, started devising sanctions mitigation techniques to mitigate the consequences of harsh sanctions. The most popular form of punishment became imprisonment.
- Probation has attempted to rehabilitate, recreate, and remould convicts into honest, decent, and law-abiding people since the early 1800s. The procedural code in India contains the basic legal articulation to the reformatory framework for the probation philosophy.
Later, the Children Act 1908 allowed the court to release guilty individuals on probation for good behaviour. In 1923, the INDIAN JAILS COMMITTEE REPORT outlined several changes to probationary arrangements (1919-1920).
The Government of India drafted a draught Probation of Wrongdoers Bill in 1931 and circulated it to the then-provincial governments for their input.
- On November 18, 1957, a Bill on Offenders’ Probation got tabled in the Lok Sabha. A Joint Committee got created to look into the Bill that would allow for the release of inmates on probation or following sufficient admonition and other connected issues.
On February 25, 1958, the Joint Committee assessed the Lok Sabha. At the suggestion of the Joint Committee, Parliament passed the Probation of Offenders Act.
In India, probation gets employed as a kind of institutional treatment. The employment of institutional procedures for probation is not permitted in the Western world.
Probation gets administered by non-profit organisations comprising sociologists and psychologists, and they believe that the judges should not become involved.
- According to the Indian system, the courts should only have jurisdiction over probationary legislation. The probation authority will get delegated to non-judicial organisations that lack judicial processes and tactics. It would be a significant issue because each organisation will have its ideals and priorities. Only the offender’s reformations will worry sociologists and psychologists, not the legal implications of the reformative action.
Article 226 of the Indian Constitution allows for judicial review of probation, allowing courts to scrutinise it.
Aims and objectives of probation
Statutory provisions dealing with probation
- The provision gets divided into procedural and substantive general legislation that deals with offenders’ probation. Probation got first addressed in Section 562 of The Code of Criminal Procedure,1898. And probation was dealt with under Section 360 of the Code of Criminal Procedure after an amendment in 1973. If the following conditions are met:
- A person under twenty-one who gets convicted of a crime faces a seven-year prison sentence or a fine.
- Or any individual under the age of twenty-one, or any woman convicted of a crime not punished by life or death, and no previous conviction is shown against the offender.
- If the criminal arrives in court, regardless of the circumstances under which he committed the crime, the court may release him on the promise of good behaviour.
Salient features of the Probation of Offenders Act, 1958
The most significant salient features of the Probation of Offenders Act are:
- The Probation of Offenders Act of 1958 got enacted to modify rookie convicts by rehabilitating them in society and preventing juvenile offenders from becoming obdurate criminals by putting them in prison alongside hardened criminals.
- In the Indian Penal Code, first-time offenders would be released following an admonition or notice with advice if believed to have committed an offence punishable by Section 379, Section 380, Section 381, Section 404, or Section 420.
- According to the Act, the Court has the authority to award such compensation and prosecution expenses for repayment by the accused as it deems appropriate for the victim’s harm or injury.
- If the offence allegedly committed is not punished by death or life imprisonment, this Act allows the Court to release persons on probation who are doing well. As a result, he’ll be held in check.
- After a prisoner gets placed on probation for good behaviour, the Act allows the judge to amend the bail terms and extend the probation period for up to three years from the date of the first order.
- People under the age of twenty-one get further protection under the Act, which prevents them from being sentenced to jail. A person convicted of a felony punishable by life imprisonment, on the other hand, cannot have this provision.
- The Probation of Offenders Act permits the Court to issue a warrant of arrest or summons to a defendant on bail who refuses to comply with the bond requirements, forcing him and his guarantees to appear before the Court on the day and time indicated in the summons.
- The Judge has the authority to trial and sentence the offender to prison under the terms of this Act. When the case is brought on appeal or in revision, the High Court or any other Court may make such an order.
- The Act provides probation officers with a vital role in assisting the Court, overseeing the probationers under its supervision, and providing guidance and support to help them find employment.
- Except for Jammu & Kashmir, the Act extends to the whole country of India. This Act takes effect in a State on the date specified by the State’s government in a notification published in the Official Gazette. It also grants state governments the authority to implement the Act on several dates in various sections of the state.
Duties of Probation Officer
What is a probation officer?
A probation officer, a court official, regularising, interacts with persons on supervised probation. In general, these individuals are perpetrators and low-level criminals.
As per the Offenders Probation Act of 1958 section 14, a probation officer is obliged to conduct the following, subject to any terms and limits that may get imposed, and the probation officer duties are:
- Investigate any individual accused of an offence’s circumstances or home environment to assist the Court in determining and reporting the most appropriate suggested approach to his dealings with it, in line with any directive from the Court;
- Keeping track of probationers and other persons under his supervision and, if necessary, locating suitable employment;
- Counselling and assisting victims in the payment of fines or expenses by the court;
- In such conditions and in such a way as may be specified, advise and help people discharged under Section 4;
- Carry out any additional responsibilities that may get assigned to you.
As per the Probation of offenders Act’s Section, a probation agent’s principal responsibilities include criminal probation monitoring, investigation and direction, counselling, and professional control. This probation officer promotes the criminal’s rehabilitation as a law-abiding member of society by encouraging, directing, and supporting him.
THE OFFENCE FOR WHICH PROBATION CANNOT BE GRANTED UNDER THE ACT
There are several circumstances in which the Probation of the Offender Act does not apply. In most cases, the Probation of the Offender Act does not apply to:
- Sections 409, 467, and 471 of the Indian Penal Code deal with public workers breaching trust, forgery of valuable security and will, and papers used as a genuine forgery.
On 3 February 1983, in Rev versus By Adv. Sri P.K.Ravisankar and State Of Gujarat against V.A. Chauhan, the court refused to release the offenders under Sections 3 and 4 of the Probation of Offenders Act, 1958.
- The Offenders Act of 1958 does not allow release based on kidnap or abduction. In the case of Smt. Devki v. State of Haryana, AIR 1979 SC 1948, it was determined that Section 4 would not get applied to the heinous perpetrator who was found guilty of kidnapping a young girl and forcing her into sexual subjection for a commercial purpose.
- Habitual criminals get prohibited from being released under the Act. In Kamroonissa v. the State of Maharashtra, AIR 1974 SC 2117, the appellant was accused of gold theft. She got imprisoned for a long time, under the age of 21. As a result, the probation officer asked the court to grant her parole under Sections 3 and 4 of the Offender’s Probation Act. The court denied the claim, citing that the appellant had committed many crimes and arrested in 1971.
- Section 325 of the Indian Penal Code deals with violence that causes great bodily harm. As a result, the Probation of the Offender Act does not allow for release on this grounds.
- Dorjee Sherpa et al. v. The State of Sikkim – The Court disregards technical opinions in some situations. It should examine specific factors, such as the possibility of job loss, before using the provisions of the Probation of Offenders Act, even for significant offences.
It was also stated that the Court would consider that prisoners from middle-class households with no criminal records are typically victims of situations caused by uninvited business and other bad pressures accessible to these young generations.
The benefit of the Probation of Offenders Act can be effective in circumstances where people attempt to terminate their own life due to family turmoil, destitution, the loss of close relatives, or other similar reasons.
Its goal is to rehabilitate the criminal and guide him along the correct road. It would be highly beneficial in India, where jails are overcrowded, and human rights violations occur daily, hardening a person’s heart. Probation is the divine affirmation inside every creature, and it must be valued.
The reform and recovery process must be carried out in the existing social environment to achieve the ultimate goal of recovering all offenders back into organised society. Along with the juvenile justice system, probation has brought human concerns and socioeconomic difficulties that underpin the ideas of crime and punishment.
It also aided in developing good attitudes toward convicts and broadened the function of enforcing criminal justice beyond regular sentences.
What is the cost and compensation under this act?
According to Section 5 of the Probation of Offenders Act of 1958, the court may order:
- The criminal must compensate the victim for any loss or harm to him.
- Alternatively, the court may consider the cost of the procedure to be justified.
What are the Pit-falls in the Probation System in India?
The probation system has certain flaws:
- In many cases, determining whether a criminal is a first-time offender or a recidivist is challenging. As a result, there is a chance that an ordinarily repeat offender may be allowed to probation and will not respond favourably to this type of treatment.
- The probation personnel's lack of genuine enthusiasm in social work is a significant challenge in selecting the proper people for this challenging task.
What is Probationer reachability and aftercare?
To avoid resorting to violence, the probationary officer shall help with social rehabilitation. The probation officer will attempt to acquire the probationer for this purpose:
- Training facilities,
- career opportunities,
- Training facilities,
- any financial assistance required,
- and contacts and groups such as Boy Scouts and Girl Guides, youth programmes and civic initiatives for normal citizens and co-organizations.
What are the Responsibilities of a Probation Officer?
- A probation officer will need to visit their client daily or even weekly.
- The probation officer may select the level of supervision required based on evaluating risk/needs (minimum, medium or maximum). It aids in determining how much support is required.
- When a probation client visits his or her probation officer, a report form must get completed.