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CHAPTER - I

PRELIMINARY
1.1 Introduction
Hate the crime not the criminals. This line by Mahatma
Gandhi is the thrust of the reformation of the criminals. Not looking to
criminals as inhuman , the probation system puts forward the changing
nature of modern society where it presently looks into the fact that
probation system aims at rehabilitating the offender to the norms of
society i.e. into law abiding member.
In modern age we believe in reformative method of criminal justice
system. We know very well criminals are not born but circumstances
turns them So many jurist think criminals can make reform and have
opinion if criminals find proper treatment without any hard punishment
they can improve their attitude towards the society.
Probation is well step in this direction, in which offenders are
supervised by any prominent officers without sending jail them.
Probation is the status of a convicted offender during a period
of suspension of the sentence in which he is given liberty
conditioned on his good behavior and in which the state by a
personal supervision attempts to assist him to maintain good
behavior.
--Sutherland and Cressey.
According to this definition probation is not pardon any type. There are
three elements in probation
1- Inspection
It is necessary to inspect of criminals under release of probation
law.
2- Direction of goal
In this period of inspection offenders are advised to actual
direction about his behavior and work.

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3- Aiding
State Government try to provide all type of help to released
offenders on probation if state government thinks about its need.
Probation supervision began in the 19th century in the United
States and the United Kingdom as an initiative of church-based
voluntary groups interested in the reform of criminals. In England and
Wales, probation has its origins in the work of police-court temperance
missionaries of the late 19th century, who provided informal supervision
of offenders at the request of magistrates.39 In the United States,
probation developed from the work of a temperance activist in Boston in
the 1840s, who persuaded judges to release drunkards, and later some
other minor offenders, into his care.
Probation as we know it today thus began with courts using their
common law powers to bind over offenders into the care of charitable
volunteers. A professional probation service based on statute did not
begin to develop until the late nineteenth and early twentieth centuries.
These charitable origins have had a strong influence on the nature of
probation.
Probation refers to the conditional release of one convicted of
a crime into the community during a period of supervision under
anassigned probation officer. - David N. Falcone (2005: 207).
The roots of current probation work practice can be found in the
spirit of voluntarism, often underpinned by a strong Christian conviction,
which characterised much social work at the turn of the century. The
guiding purpose of probation was, as originally conceived, to advise,
assist and befriend offenders who were in more need of help than
punishment. Probation orders were not penalties in themselves, but
alternatives to punishment; and the purpose of probation was to give
offenders the chance to respond to a bit of straightforward
commonsensical advice and guidance.
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The term probation was applied by John Augustus to the
practice of bailing offenders out of court, followed by a period of
supervised living in the community. This pioneer of modern
probation was born in Woburn, Massachusetts, and became a
successful shoemaker in Boston. In 1852, a Report of the Labors of
John Augustus was published at the request of his friends, and in it
Augustus wrote: I was in court one morning . . . in which the man
was charged with being a common drunkard. He told me that if he
could be saved from the House of Correction, he never again would
taste intoxicating liquors:

During the first year of his efforts, Augustus assisted 10


drunkards who, because of his work, received small fines instead of
imprisonment. He later helped other types of offenders, young and old,
men and women and reported only 10 absconders (persons who jumped
bail or probation) out of 2,000 cases. Augustus continued his work for 18
years and generally received support from judges as well as newspapers
that reported on his efforts. Prosecutors, however, viewed him as an
interloper who kept court calendars crowded by preventing cases from
being disposed of quickly. Policemen and court clerks opposed his work
because they received a fee for each case disposed of by a commitment to
the House of Correction. As a result of his probation work, Augustus
neglected his business and eventually experienced financial ruin; he
required the help of friends for his support. Several aspects of the system
Augustus used remain basic parts of modern probation.
Augustus thoroughly investigated each person he considered
helping, including the previous character of the person, his age and the
influences by which in the future
Traditionally, the aim of probation has been to reform offenders,
rather than to punish them: Probation reflects the welfare approach to

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criminal justice and emphasizes the need to treat offenders as
individuals. Probation evolved to facilitate those individuals whose
offending is regarded as being more the outcome of social disadvantages
or disorganization. They often lack the social, economic, emotional and
family supports which protect or prevent them from developing criminal
associations and then criminal behaviour. The welfare model regards
rehabilitation as the best protection for the community when it is applied
to those offenders who have the capacity to be rehabilitated.

Objectives of empirical research :-


1. To study the refusal to grant probation causing factors
among women offenders and another young offenders with
reference to bail bond ,family Problems.
2. To study the dual role performance of probation officers in
criminal judicial system.
3. To study the social adjustment of offenders who are under
the supervision of probation officer.
4. To study the problems of offenders during the period of
probation.
5. To understand about the dual role performance of probation
officers to welfare of women offenders in probation period.
6. To Study about the adjustment level of offenders in society.

Probation like Alternatives to imprisonment


Apart from imprisonment, judicial systems typically have a range
of non-custodial sentencing options at their disposal. The options
available vary considerably across different societies. In the UK the most
frequently used non-custodial sentences are:
Fines: the offender is required to pay a specified sum of money to
the authorities.

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Probation: the offender is required to be supervised and regularly
checked for a specific period.
Reparation & restitution: the offender is required to undertake
specified activities to repay either society or his victim for his
criminal activities. There is substantial evidence that in many
cases non-custodial sentences are at least as effective as custodial
ones, besides having significant additional advantages. Fines A fine
is a sum of money an offender is required to pay to the authorities.
The amount is generally set by the court but there are usually
statutory limits one the size of the fine.
Probation System
The essence of the system is -
1. That the offenders, instead of being find or sentenced to
imprisonment or bound over, is placed on probation, that is to say,
a probation order is made by the Court and the probationer
undertakes to be bound by it by entering into a recognizance, with
or without sureties.
2. The order may provide the probationer shall be under the
supervision of a probation officer for a special period, and it may
stipulate certain conditions to be observed by the probationer, for
example, as to residence, abstention from intoxicating liquor, and
the like.
3. The order can only produce beneficial results with the voluntary
co-operation of the probationer.1
Probation is based on the following principles:
1. That many offenders are not expert or dangerous criminals but are
weak characters who have surrendered to temptation, or through
misfortune or improvidence, have been brought within the
operations of the police and the Courts.

1 Russel's The Magistrate, p. 104.


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2. In assigning this type of offender to the care of a probation officer,
the Court not only saves him from the stigma and possible
contamination of prison, but also encourage his own sense of
responsibility for his future: if he co-operates with the probation
officer, he will be able to continue his normal life and his record
will still be clean.
3. Such a practice not only assists the offender and has a social value
to the community but, by relieving the prisons of large numbers of
first offenders, short term prisoners, and other classes of quasi-
criminal offenders, it results in economy and allows the prison
service to apply themselves to their true function that of
segregating or providing treatment for the vicious and dangerous
criminal.2
Preferable to altering offending behavior-
For example, a company that pollutes the environment may
calculate that it is cheaper to pay the fines for pollution than to clean up
its act. In both cases, the imposition of a fine may have minimal impact
on future offending.
Probation When an offender is put under probation, they are released
into the community with the proviso that they must meet certain
conditions or risk further punishment. A probation order might be given
with a suspended sentence or as a condition of early release from prison.
Violation of the terms of the probation order would consequently mean (a
return to) custody. The conditions imposed generally require that the
offender is under the supervision of a probation officer with whom he is
expected to meet regularly.

Definition of probation
1. A Probation is the post pone meant of final judgment or sentence
in a criminal case, giving the offender opportunity to improve his
conduct and to real just himself to the community on conditions

2 Ibid.
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imposed by the court and under the guidance or supervision of an
officer of the court " Donad Taft".3
2. Probation is the status of a convicted offender during the a period
of suspension of the sentence in which he is given liberty
conditioned on his good behavior and in which the state by
personal supervision attempts to assist him to maintain good
behavior "Sutherland".4
Probation implies either suspension of execution of punishment or
imposition of sentence during the good behavior of the offender.
The earlier penological approach held imprisonment, that is,
custodial measures to be the only way to curb crime. But the modern
penological approach has 45 hered in new forms of sentencing where by
the needs of the community are balanced with the best interests of the
accused.5
Compensation, release on administration, probation imposition
fines, community service are few such techniques used through this
paper the advantages of probation are highlighted along with how it
could be made more effective in India.
The term probation is means to test or to prove. It is a treatment
device developed as a non-custodial alternative which is used by
magistracy where guilt is established but it is considered that imposing
of a prisoner sentence would do no good. Imprisonment decreases his
capacity to readjust to the Norman society after the release and
association with proferional aelinanent often has undesired effects.
The statement that probation is not punishment is misleading
however much preferred by delinquents, good probation may involve
restrictions upon freedom and be irksome to refrain from
disapproved behavior or to perform required acts which may
irksome and even painful to the probationer.
--------------------------------- D.R.Taft-- ---- Criminology

3 Probation of offenders Dr. N.V. Paranjpe, Criminology and Pinology page. 305, edition 2000.
4 E. H. Sutherland Principal of criminology, page no. 422.
5 Websites used www.law.cornell.edu

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According to united Nation, Department of social Affairs, the
release of the offenders on probation is a treatment device prescribed by
the court for the persons convicted of offence against the law during
which the probationer lives in the community and regulates his ron life
under conditions imposed by the court or other constituted authority,
and is subject to the supervision by a probation officer. The suspension
of sentence under probation serves the dual purpose of deterrence and
reformation it provides necessary help and guidance to the probationer
in his rehabilitation and at the same time the threat of being subjected to
unexhausted sentence acts as a sufficient deterrent to keep him away
from criminality, the united Nations recommends the adoption and
extension of the probation system by all the countries as a major
instrument of policy in the field of prevention of crime and the treatment
of offenders.
In this research the focus is on legislative and administrative
aspects of probation and means by which probation may be made for
effective in India.

Parole and Probation Compared6


Although parole like probation is based on the principle of
individualisation of treatment of offenders and both include a programme
of guidance and assistance to the delinquents, yet the two differ in many
aspects. The fundamental points to difference between parole and
probation are noted below:

1. As to their historical evolution, the system of probation owes its


origin to John Augustus of Boston (U.S.A.) who around 1841, tried
to convince the Judge of the Magistrate's Court that certain
offenders would respond well to his supervision if committed to his

6 Dr. N.V. Paranjpe, Criminology and Penology page. 342, edition 2000, Chapter XXI.
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care rather than jailed. The parole, on the other hand, came into
existence much later somewhere around 1900.
2. A prisoner can be released on parole only after he has already
served a part of his sentence in a prison or a similar institution.
Thus, it essentially involves an initial committal of offender to a
certain period of imprisonment and a conditional release
subsequently after serving a part of the sentence. But in case of
probation, no sentence is imposed, or if imposed, it is not
executed. This, in other words, means that probation is merely the
suspension of sentence and is granted to a prisoner when he has
already lived in prisons or a similar institution for a certain
minimum period and has shown propensity for good behaviour.
3. As rightly pointed out by Dr. Sutherland, a probationer is
considered as if undergoing "treatment" while he is under the
threat of being punished if he violates the conditions of probation:
but a parolee is considered to be in "custody" undergoing both
punishment and treatment while under threat of more severe
punishment, i.e., return to the institution from which he has been
released.
4. Another notable distinction between probation and parole is that
former is a judicial function while the latter is essentially which a
person found guilty of an offence is released by the court without
imprisonment subject to conditions imposed by the court and
subject to supervision of the probation staff. In case of parole, a
prisoner is released from prisoner to the community prior to
expiration of his term of sentence subject to conditions imposed by
the Parole Board. Thus, the release of a parolee is not the result of
a judicial decision.

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5. It has been alluded by J.L. Gillin that probation is probably the
first stage of correctional scheme, the parole being the last stage of
it.
6. Probation and parole also differ from each other from the point of
view of stigma or disqualification attached to an offender who is
released on probation of good conduct, but a prisoner released on
parole suffers stigmatisation as a convicted criminal in the society.

Merits of Probation System :7


It helps to the accused who is under probation to follow law and
rehabilitation in society. It's importance described under the following
points :-
1. Under probation system, accused can be saved them
dangerous atmosphere of prison where joining of habitual
offender. It is parable to the first offender to influences his
evils on the other hand, he can be saved to state prisoner by
the society in which procedure in heart inferiority complex
and he any again commits crime and join illegal activation
for society.
2. Probationary accused feels control of probation officer in
which society did not opposite his offence only provided a
one chance to reform him if the commits misuse this chance
them he will penalize and will send to Jail.
3. Under probation accused is under deterrence which is
bounded to make well decipema to him who is probationary
released offenders.

7 Criminology and Penology Dr. N.V. Paranjpe etd. 2000, Chapter Probation of

Offenders.
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4. During this period of probation it helps to accused to collect
such value which is convenient to live his life to provide
freedom which is essential for a good citizen of society.
5. Great benefit of probation that accused can relate his family
and the can participate his responsibility of his family and
he can earn money to livelihood for his family to do any
employment work or to do any occupation.
6. In probation, probationary accused do his self rehabilitation
in society be self efforts in which self dependency and self
motivated persons are improve him.

(A) Importance of probation to society :-8


It is necessary to develop of society that each and every member of
society should be live with co-operation. It is necessary to the society to
co-ordination for social existence probation is proved too beneficial to
social secure.
These are basics point to the beneficial of probation which are
under the following:-
1. Probation system helps to control unfair elements of the
society which is at most important to social peace and
security.
2. In probation period, state provides to training in different
area as educational industrial and professional to the
released offenders. In which he could live well life in the
society. On this result, a offender who believes to live
abdicate crimes because of it is important to social
solidarity.
3. During the period of probation probationary accused who
occupies and profusion in which it increase in Nation income

8 E.H. Sutherland and Cressy-Principles of Criminology, page 431.


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and state does not spent on maintenance to that person
otherwise if that person is in prison then state does expense
all expenditure to his livelihood.

(B) Beneficiality of probation to probation officers :-9


The main duty of probation officer has to supervise and control to
probationary officer. It is natural that they take near relation with
released offender under probation. Hence they can realize well problem of
offenders they can pay well role to prevent or control of crime of offender
who are under probation.
These are some main points which are beneficial to the probation
officers :-
1. Offenders taken a chance to serve the society under
guidance of probation officer, serving of prisoner who are
under probation they are not only served to the society but
nation well as.
2. Probation officer pay major role to socialism for procedure of
criminal courts release on probation always depends on the
report of probation officer court can release under pre-
sentence report to any prisoner or first offender. This report
is made with natural real fact of probation officer. Hence
according to this report court decides with its help to provide
punishment to first offender.
By and large probation is a proven of reformative theory which is
based on that principles which are most important as preventive method
in penology. It is such preventive method in which reformative theory
predominated instead of deterrent theory and offender is main par
instead of offence and his personality.

9 E.H. Sutherland and Cressy-Principles of Criminology.


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Important place of Probation in Penology System
Probation as a correctional measure occupies an important place
in reformative justice. It seeks to reconcile the conflicting claims of
"punitive" and "treatment" reactions to crime. The suspension of
sentence under probation serves the dual purpose of deterrence and
reformation. It provides necessary help and guidance to the probationer
in his rehabilitation and at the same time the threat of being subjected to
unexhausted sentence acts as a sufficient deterrent to keep him away
from criminality. Probation is useful to society in general and to offender
in particular. It also enables the probation officer in getting deeper
insight of the problem of criminals. It also enables the probation officer
in getting deeper insight of problem of criminals. It would, therefore, be
convenient to assess the utility of probation as a punitive reaction to
crime under the following heads:10
1) Utility of probation from the point of view of the
delinquent: The system of probation helps the delinquent in
rehabilitating himself as a law abiding member of society. It
serves the needs of the probationer in the following manner:11
1. Probation keeps the offender away from the criminal world. If the
delinquent is set at liberty without adequate guidance and
supervision, he is inclined to feel that his delinquent conduct has
been accepted by society and thus he will continue his criminal
activities unfettered.
2. The fear of punishment in case of violation of probation law has a
psychological effect of the offender. It deters him from law-breaking
during the period of probation. Thus probation indirectly prevents
an offender from adopting a revengeful attitude towards the
society.

10 Criminology and penology Dr. N.V. Paranjpe, pg. 330, Chapter XXI etd. 2000.
11 Criminology and penology Dr. N.V. Paranjpe, pg. 330, Chapter XXI etd. 2000.
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3. Probation seeks to obviate the evils of institutional incarceration
and thus prevents the offender from contamination and
conforming to a criminal career. Moreover, sentencing an offender
to a term of imprisonment carries with it a stigma which makes his
rehabilitation in society difficult. The release of the offender on
probation saves him from stigmatization and thus prepares him for
an upright living.
4. Probation seeks to socialize the criminal as the liberty which he
enjoys during the probation period enables him to pick up those
life-habits which are necessary for a law-abiding member of the
community.
5. Probation enables the offender to attend to his domestic
obligations and thus contribute to support his family financially by
taking up suitable work according to his capability.
6. Probation enables the offender to rehabilitate himself through his
self-control and self-confidence in him which are undoubtedly the
essential attributes of a free-life.
7. Before the implementation of probation law, the courts were often
confronted with the problem disposing of the cases of persons who
were charged with neglect of their family. In such cases there was
no alternative but to send them to prison which was an
unnecessary burden on the State exchequer. With the introduction
of probation as a method of reformative justice, the courts now
admit such offenders to probation where they are handled by the
competent probation officers who impress upon them the need to
work industriously and avoid shirking their family responsibilities.

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2) Utility of probation from the stand-point of Society:
Besides the delinquent, probation also serves a useful purpose
for the society as a whole:12
1. It is well known that the interest of society are best served when all
its members play a positive role by seeking their self-rehabilitation.
Since this object is fully achieved by the probation system, it is
indeed an effective method of preserving social solidarity by
keeping the law-breakers well under control.
2. During the probation period, the offender is sent to various
educational, vocational and industrial institutions where he is
trained for a profession which may help him in securing a
livelihood for himself after he is finally released and thus leads an
absolutely upright life.
3. Whatever work an offender is doing as a probationer, he is
contributing to the national economy. Thus, he no longer remains
a burden on society.
3) Utility of probation form the point of view of Probation
Officer: Correctional task of the probation staff requires closer
contact with inmates during his period of probation. This helps
the probation supervisor to get a deeper insight into the real
causes of crime and suggest remedies for their eradication. The
system of probation enables these officials to approach the
problem of crime in a practical manner. Thus it provides an
excellent opportunity to the probation personnel to serve the
community as also the nation. Commenting on this aspect J.L.
Gillin rightly observed that probation system13 if properly
administered, can assist the judge in socializing criminal
procedure. If probation officers furnish correct information to

12 Criminology and penology Dr. N.V. Paranjpe, pg. 331, Chapter XXI etd. 2000.
13 Gillin J.L. : Criminology and penology (3rd Ed.) pg. 321.
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the court about the convicted persons through a careful pre-
sentence investigation, the judge may individualize the
treatment with thus it would be seen that probation as a
reformative measure is a milestone in the progress of modern
liberal trend in the field of penology. Probation as a measure of
rehabilitation shifts the emphasis from deterrence to
reformation and from crime to criminal in accordance with the
modern reformative trends of punishments. The keynote of the
Probation of Offenders Act. 1958 is "reformation and
rehabilitation of the offender through the process of
individualization.14

What does probation involve?


An offender who is placed on probation is initially assessed to
determine how likely he or she is to re-offend, and the level of risk that
the offender poses to the community. The offender is assigned to a
Probation Officer who will assist the offender to develop positive goals
and skills directed to a law-abiding lifestyle, and will monitor the
offenders progress. The probation officer will work with the probationer
to analyze why the offending behavior occurred, and to draw up an
individual case plan with the offender to address those areas that incline
the offender towards criminal conduct. The plans take into account the
needs of the offender, the type of offence, and the offenders risk level.
The United Nations has defined probation as a method of
dealing with specially selected offenders and ... consists of the
conditional suspension of punishment while the offender is placed under
personal supervision and is given individual guidance or treatment.1
The term probation is sometimes used to mean the release of offenders

14 Criminology and penology Dr. N.V. Paranjpe, pg. 332, Chapter XXI etd. 2000.
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into the community conditional upon their being of good behaviour,
whether or not the offender is subject to ongoing supervision.

In Murlidhar Chatterjees case,15 their Lordships of the Privy


Council pointed out that an illustration cannot be ignored or brushed
aside because it is not part of the body of the section. A section of an Act
must be read and constructed in the light of illustrations found in that
Act.16 The illustrations are intended to explain the extent of the
definitions, not to state cases necessarily falling within any section of the
Act.17
The Madhya Pradesh High Court favored the grant of probation
benefits to an accused in a food adulteration case as the unusual delay
in launching the prosececution has resulted in denial of the opportunity
to the applicant of his right under Sec. 13(2) of the act, 1958.18 After the
insertion of Sec. 20-AA in the Prevention of food Adulteration Act, 1954
the benefit of this Act can be given to the offenders under eighteen years
of age only. In one other case under that Act one accused appeared to be
of 19 years of age, the Supreme Court held that this was a fit cases in
which the should be dealt with under the Probation of offenders Act,
1958, and further observed:" There are, however, some redeeming
features which persuade us to apply the prevision of the Act, 1958 in this
particular case. Apart from the young age of appellant No. 2, Papilla. It
appear that he mealy happened to be present in the shop accidentally as
his father had gone to some other place and he sold the articles. The
main person who has in charge of the business was the first appellant.

15 A.I.R. 1943 P.C. 34 at p. 38:70 I.A. 35: 1943 A.L.J. 287: 56 L .W. 283: 47 C.W.N.
497: (1943) 2 M.L.J. 369 (P.C.): 15 R.P.C. 71 : I.L.R. 9 Bom. 287.
16 Sobher v. Administrator General of Bengal A.I.R. 1944 P.C. 67 at p. 69: 71 I.A. 93: 43

C.W.N. 585: 1944 M.W.N. 467: 1944 A.L.J. 404: 46 Bom. L.R. 865: 1944 A.W.R. (P.C.)
42: (1944) 2 M.L.J. 20 (P.C.)
17 Poolock and Mullas Indian Contract Act and Specific Relief Act.
18 Shiv Dayal v. State of Madhya Pradesh, 1977 Cr.L.J. 1546 at p. 1550 (M.P.).

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Secondly, having regard to the young age of Papalal, if we send him back
to jail, he is likely to become hardened criminal, and the present policy of
penology is to reform criminals rather than punish them. For these
reasons, therefore, we would suspend the sentence of Papalal, second
appellant. While upholding his conviction we would release him on
executing a personal bond of RS. 2,000 to maintain good behavior for a
period of two years, failing which he will be called upon to serve the
sentence imposed on him.19
Learned counsel for the petitioner has not contested the revision
on merits. He contended that the petitioner had been facing the agony of
protracted trial for the last about 12 years. He was aged less then 16
years at the time of talking the sample and as such was entitled to
probation under Sec. 20-AA of the Probation of Offenders Act, 1958. In
support of his age, petitioner has field the certified copy of the school
leaving certificate which shows his date of birth as 10th December, 1978.
Thus, he was about 16 years of age at the time of taking the sample.
Section 20-AA of the Act, 1958 states that the Act, 1958 shall be
applicable to a person convicted of an offence under this Act, who is loss
than 18 years of age. Since the petitioner less then 18 years of age at the
time of talking the sample and had suffered protracted trial for the last
about 12 years, so it is a fit case where the concession of probation
should be given to him.20
Offence of the nature of testing school girl were becoming very
common and the Court cannot also shut their eyes to what is happening.
In the instant case, it is not disputed that the petitioner was bellow 21
years of age and he would thus come within the purview of Sec. 6 of the
Probation of Offenders Act, 1958. The report of the Probation Officer had

19 Sitaram Laxminarayan Agrawal v. State of Maharashtra, A.I.R. 1979 S.C. 1569 at p.


1572.
20 Om Prakash v. State Haryana, 2002(1) R.C.R. (Cr.) 459 at p. 460 (P.&H.).

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also been called for and it is on the record. Considering all the aspects of
the matter, the Patna High Court did not think that it is a first case, in
any way, in which the powers under the Act, 1958 should be exercised.21
The question whether Sec. 354 of the Indian Pannel Code, Should
or Should not attract the applicability of the Probation of Offenders Act,
1958 must be decided on the circumstance of the particular case
because each case will be regulated by its own circumstance.

1.2 About the research title


Today many juvenile of under detained in Jail and there is no any
chance to release under probation. So researcher faced and concerned
this topic in which researcher could solve the problem such prisoner who
are under the age of 21 year but they dont have benefits of a probation
system which is provided by the court thats why their prison life is very
ridiculous.
The probation of offenders Act is a reformative measure and its
object is to reclaim amateur offenders who, if spared the indignity of
incarceration, can be usefully rehabilitated in society. A jail term should
normally be enough to wipe out the stain of guilt but the sentence which
the society passes on convicts is relentless. The ignominy commonly
associated with a jail term and the social stigma which attaches to
convicts often render the remedy worse than the disease and the very
purpose of punishment stands in danger of being frustrated. In
recalcitrant case, punishment has to be deterrent so that others similarly
minded may warn themselves of the hazards of taking to a career of
crime. but the novice who strays into the path of crime ought, in the
interest of society, be treated as being socially sick. Crimes are not
always rooted in criminal tendencies and their origin may lie in
psychological factors induced by hunger, want and poverty. The

21 Sadan Prasad v. State of Bihar, 1970 Cr.L.J. 1323 at p. 1324.


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probation of offenders Act, 1958 recognizes the importance of
environmental poverty. The Probation of offenders Act, 1958 recognizes
the importance of environmental influence in the commission of crimes
and prescribes a remedy whereby the offender can be reformed and
rehabilitated in society. An attitude of social defiance and recklessness
which comes to a convict who, after a jail term, is apt to thick that he
has no more to lose or fear may breed a litter of crime.
Researcher went to juvenile prison and juvenile court to clarification and
search data for his research work Researcher has taken interviews of
some prisoners who are victims and under the age of 21 years and how
have they been changing their nature towards the society and research
did search the data of such prisoner who comes under the probation and
Researcher has enclosed such interviews data sheet through prepare
questionnaire and data sheet on my research work.
About the hypothesis of research work
In the research work researcher has taken some views as hypothesis for
his empirical research :-
1. Many time due to family problems, women offenders and
another young offenders do not manage security for bail bond
to avail probation benefits in criminal justice system.
2. Probation officers are playing important role to grant
probation benefits for accused in Gwalior division.
3. Offenders can adjust properly in society with the supervision
of probation officers.
4. During the probation service many offenders are suffering
from some social problems .
5. There is a good adjustment level of offenders in society under
the perspective of Gwalior division.

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6. In Gwalior division probation law has been functioning
properly with high cooperation of courts and chief probation
officer.
7. Present probation law is as good as we need and there should
no amendments in probation law.
Researcher has used many tools to prove his hypothesis in the
research work.
The main focus in this research is on the Probation as a technique
of reformation, its origin, meaning, legal provisions available under
Section 360 & Section 361 of Code of Criminal Procedure, 1973
along with Section 4 of the Probation of Offenders Act, 1958 and
their comparative study with judicial pronouncement.
After the interpretation of findings of empirical research with
special reference to Gwalior division , researchers hypothesis no.
1, 2, 3, has been proved but hypothesis no. 4, 5, 6,7, could not be
proved during the empirical research through collection of data &
findings.

1.3 The Probation of Offenders Act , 1958 - Overview


The Probation of Offenders Act, 1958 has a wider scope , as it
permits
(a) Probation to all offenders except those who are liable to be given
Capital punishment for murder , treason, etc and to dacoits and
professionals.
(b) Release on probation for a maximum period of three years,
(c) Social investigation by a probation officers,
(d) Revocation or premature termination of probation.
It is the complete code for the process of granting the Probation.
The object of the Probation of Offenders Act, 1958 is to prevent the
conversion of youthful offenders into obdurate criminals as a result of
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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 effort 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 socio-
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 Probation of Offenders Act,
1958 gives statutory recognition to the above objective.1
It cannot be said that the offences excluded from the purview of
the section are only those offences wherein punishment prescribed is
imprisonment for life and not for a lesser term, for the language used in
the section does not warrant such a view. On the contrary, the plain
meaning of the section cannot be invoked by a person who is convicted
for an offence punishable with imprisonment for life. The fact that
imprisonment for a lesser term can also awarded for the offence would
not take it out of the category of offences punishable with imprisonment
for life. The policy underlying the Probation of Offenders Act, 1958
appears to be that it is only in cases of underlying the Probation of
Offenders Act, 1958 appears to be that it is only in cases of not every
serious nature, viz., offences not punishable with imprisonment for life
that the convicted person should have the benefit of provisions of the
Act, 1958. Where, however, the offence for which a person has been
convicted is of a serious nature punishable with imprisonment for life,
the benefit of the act, 1958 would not be permissible in his case.
Likewise, there are certain offences like those under the Prevention of

1 Ram Naresh Pandey v. State of Madhya Pradesh, 1974 cr. L.J. 153 at p. 155.
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Corruption Act wherein the convicted person cannot claim the protection
of the Act, 1958. Section 18 of the Act, 1958 expressly excludes such
offences from the purview of the Act.
THE PROBATION OF OFFENDERS ACT, 1958
The first statutory expression to the penal system reflecting
probation philosophy is to be found in section 562 of the Code of
Criminal Procedure, 1898. Later the Children Act, 1908 also empowered
the court to release certain offenders on probation of good conduct. The
scope of provisions of probation law was extended further by legislation
in 1923 consequent to the Indian Jails Committees Report (1919-1920).
In 1931 the Government of India prepared a Draft Probation of Offenders
Bill and circulated it to the then Provincial governments for their views.
However, the Bill could not be processed due to pre-occupation of the
Provincial Governments. Later, the Government of India, in 1934.
informed the Provincial Governments that there were no prospects of
central legislation being enacted on Probation and they were therefore
free to enact suitable laws on the lines on the Draft Bill.
As a result of the recommendations of the Jail Committee the
Government of Indian decided to have a comprehensive legislation on
probation law in India. To attain this objective, a Bill on Probation of
Offenders was introduced in Lok Sabha on November 18, 1957. On 18th
November, 1957 an amendment to the motion for consideration of the
Bill was accepted by Lok Sabha and Rajya Sabha discussed he motion on
November 25-26, 1957 and concurred with the suggestion that the Bill
he referred to a Joint Committee of the Houses. Consequently, a Joint
Committee was formed for considering the Bill to provide for release of
offenders on probation or after due admonition and matters connected
therewith. The Joint Committee handed over its report to Lok Sabha on
25th February, 1958. On the recommendations of the Joint Committee
the Probation of Offenders Bill was introduced in the Parliament.
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STATEMENT OF OBJECTS AND REASONS
The question of release of offenders on probation of good conduct
instead of sentencing them to imprisonment has been under
consideration for some time. In 1931, the Government of India prepared
a draft of Probation of Offenders Bill and circulated it to the then Local
Government for their views. However, owing to pre-occupation with other
more important matters, the Bill could not be proceeded with. Later in
1934, the government of India informed Provincial Governments that
there was no prospect of Central legislation being undertaken at the time
and there would be no objection to the Provinces undertaking such
legislation themselves. A few Providences accordingly enacted their own
probation laws.
2. In several States, however, there are no separate probation laws
at all. Even in States where there are probation laws, they are not
uniform nor are they adequate to meet the present requirements. In the
meantime, there has been an increasing emphasis on the reformation
and rehabilitation of the offender as a useful and self-reliant member of
society without subjecting him to the deleterious effect of jail life. In view
of the widespread interest in the probation system in the country, this
question has been re-examined and it is proposed to have a Central law
on the subject which should be uniformly applicable to the States.
3. It is proposed to empower courts to release an offender after
admonition in respect of certain specified offences. It is also proposed to
empower courts to release on probation, in all suitable cases, an offender
found guilty of having committed an offence not punishable with death or
imprisonment for life. In respect of offenders under 21 years of age,
special provision has been made putting restrictions of their
imprisonment. During the period of probation, offenders with remain
under the supervision of the probation officers in order that they may be

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reformed and become useful members of society. The Bill seeks to
achieve these objects.

1.4 Explanation in chapter wise


Chapter wise explanation
In the first chapter researcher has introduced preamble of law of
probation in India and described all major provisions and their utility in
probation of offenders act, 1958.
Lastly researcher has enlightened his view under general
observation in the decision of the Supreme Court at this chapter.
In the Second chapter of the thesis, the concept of origin and
historical back ground of law of probation have been fully described by
the researcher. Researcher has introduced all present provisions and
law relating probation of offenders as well as confliction between theory
and practice in probation system especially in Madhya Pradesh.
In the third chapter of the thesis, the concept of constitutional
provisions & statutory provisions regarding probation law has been fully
enumerated with current case law by the researcher. On the second way
this briefing research looks at probation in its narrower meaning of
releasing an offender under the personal supervision of a probation
officer, to undergo some form of rehabilitation.
Researcher has used many tools in the description of law of
probation in India i.e. reformatory school act, 1897 and children act,
1908 as well as juvenile justice act, 2000 & criminal procedure code
1973.
In the fourth chapter of this research work, Researcher has
successfully completed his empirical research and mentioned view on
law of probation through prediction tables under the prospective of
Gwalior division. At the end of this chapter researcher has analyzed facts
of findings under object of hypothesis in this research.
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Part 4.3 of this thesis briefly examines how probation is used in
india, Madhya Pradesh especially Gwalior Division.
In the next chapter of this research work, policies of probation
benefits & probation philosophy in penal system have been discussed by
the researcher. Researcher has focused in the applicability of probation
of offenders act, 1958 and how for it is a challenge in probation system
at present scenario. Researcher has described full details of probation
law & judicial attitude as well as discretion of the courts to grant
probation for rehabilitation of the offenders.
In the sixth chapter of the thesis work, researcher has described rules
and regulations of probation law as well as exceptions and limitations to
grant benefits of probation to offenders. In this context many things
which are responsible factors to taken decision of probation like
problems of bond & sureties and functions of courts have been fully
enlightened by the researcher.
In the seventh chapter of this research work , Government policies to
grant probation for accused has been described by the researcher .
In this context researcher has focused on some important issue like
policy of central government and policy of state of Madhya Pradesh
including duties of NGOS & other statutory organizations.
In the eight chapter of thesis work , various dimension & overview of
supreme court case and case law of Madhya Pradesh high court with
special case law on probation system have been discussed by the
researcher.
In the last chapter of ninth, researcher has given his opinion on
probation law and after findings of empirical research many suggestions
have been given by the researcher which will be beneficial to the society .
And lastly researcher conclude his opinion to maintain this theme in this
research i.e. probation is a common sentencing option around the world,
although it takes many different forms.
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1.5 General observation is the decision of the Supreme Court
The general observations in Supreme Court decisions should be
confined to the facts of these cases. Any general observation cannot
apply in interpreting the provisions of an Act unless the Supreme Court
has applied its mind to and analyzed the provisions of that particular
Act.22

Accused was convicted under Sec. 10(N)/16(2), C.R.P.E. Act -


The Supreme Court has indicated in Dalbir Singh v. State of
Haryana,423 that benefit of the Probation of offenders Act, 1958 should
not normally be afforded in respect of the offences under Sec. 304-A of
the Indian Penal Code when it involves rash or negligent driving. Those
are instances for showing how the nature of the offence could dissuade
the court to give the benefit. However, in a case of a trivial nature as the
respondent is stated to have committed and keeping in view its peculiar
circumstances, it is a fit case where powers under Sec. 3 of the Probation
of Offenders Act, 1958 can be exercised.24
But it must be borne in mind that Sec. 562 (Sec. 360, new) of the
Code of Criminal Procedure has not been enacted with the intention of
letting off without imprisonment every juvenile offender on his first
conviction for an offence described in the section, regardless of the
circumstances in which the crime was committed. The section itself is
clear on this point and Magistrates, before applying the section, should
carefully take into consideration the attendant circumstances, along with
the age, character and antecedents of the offender.25

22 Raval & Co. v. K.G. Ramachandran, A.I.R. 1974 S.C. 818 at p. 821: (1974) 1
S.C.C. 424.
23 (2000) (5) S.C.C. 8.
24 Commandant, 20 B.N., I.T.B. Police v. Sanjay Binjola, 2001 (2) All. Cr.L.R. 668 at pp.

671, 672 (S.C.)


25 Emperor v. Alia, A.I.R. 1930 Lah. 259 at p. 260; Queen-Empress v. Tukaram, (1900)

2 Bom. L.R. 817.


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The age of the accused is immaterial on the question whether the
Court is entitled to act under this section.26 The age may, however, be
material to judge the maturity of the accused at the time of the
commission of the offence. Under Sec. 360 (3) of the code of Criminal
Procedure, age is a material consideration and the mere fact that the
accused comes of a respectable family cannot be a justification for
passing order under the section for the more respectable and better
educated a man is, the less temptation there should be to commit
offences.27 If rich or influential persons are too lightly dealt with though
they are guilty, the respect for law and order will be seriously impaired
specially where the offence is a serious one.28
The incident of theft in the instant case took place on 23rd May,
1982. The currency notes stand recovered. The accused was then
working as a Safai labourer in the dharamasala and it appears that he
unwillingly fell to the temptation of making easy money in the chance
circumstances in which he found himself to be. In totality therefore, the
Himachal Pradesh High Court did not think it to be case fit for being
remanded with the object of sending the accused behind the bar.
Instead, held that the ends of justice would be met in case a warning is
administered to the accused under Sec. 3 of the probation of Offenders
Act, 1958. Accordingly this appeal was accepted and the accused was
convicted under Sec. 380 of the Indian Penal Code but was admonished
and ordered to be set a liberty. 29

26 Queen-Empress v. Tukaram, (1900) 2 Bom. L.R. 817; Pallabhotla Chinniah, In re,


A.I.R. 1918 Mad. 709 at p. 710: 18 Cr. L.J. 469: 99 I.C. 809; Emperor v. Sahani A.I.R.
1916 Lah. 405: 178 Cr. L.J. 254: 34 I.C. 974.
27 Empress v. Surendra Chandra Das, A.I.R. 1950 Pat. 216: 31 Cr. L.J. 874: 125 I.C.

572.
28 State of Mysore v. K. Basappa, A.I.R. 1953 Mys. 75 at p. 80: (1953) Mys. 79.
29 State of Himachal Pradesh v. Shankar Lal, 1990 (3) Crimes 324 at p. 326 (H.P.)

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