004 - Probation-The Law and Practice in India (48-87)

PROBATION—THE LAW AND PRACTICE
IN INDIA
D.C. Pande* and V. Bagga**
Introduction
THREE PRELIMINARIES are in order. First, the critical remarks to be
found in the following discussion on the probation system, as operating in
the Indian legal scene, are not to be misunderstood as our taking a position
opposed to the use of a progressive penal theory of probation. Next,
probation is a form of sentencing action in the administration of criminal
justice which has to be applied through the processes of criminal law.
Accordingly, probation cannot be viewed in isolation to confer benefits
solely on humanitarian ground without taking cognizance of the interests
of society which the criminal law and justice seek to serve. Finally,
probation may assume the form of suspension of sentence on either of the
probabilities, viz, (a) that the non-enforcement of traditional penal
sanction, particularly, of short term imprisonment may probably result in
correcting the offender to rehabilitate himself in society, or (b) the
probation period may be an interlude for enforcement of traditional
sanction if probable expectation of good conduct is not forthcoming from
the offender. In the former case, the judicial power to punish a person for
breach of law is accomplished with the securing of good behaviour from
the offender, and in the latter case, it is accomplished only if the judicial
power substitutes the ineffective probation result with penalty as pres
cribed under the law. In no case the judicial power can absolve itself from
the duty to punish a person who has been found guilty and is convicted.
Legally speaking probation is a newer mode of sentencing action which
extends the area of judicial discretion in the matter of awarding punishment.
I. Awareness of reform theory in penology
The decision to dispose of the convicted offenders ought to rest on some
conception of purpose. The sentencers vary in objectives and approaches.1
Till lately, the modes of disposal did not much concern the judicial thinking.2 It
had rather been an easy task to pronounce sentence on a person found guilty
than to determine the guilt or innocence of the accused. The varying nature
of penalty did not exist. Even where the options did exist, these were very
limited. No special skill was required to be called in action to determine
♦Associate Research Professor, Indian Law Institute, New Delhi.

**LL. M. (London) Research Associate, Indian Law Institute, New Delhi,
1. See E. Green, Judicial Attitudes in Sentencing (1961) ; R. Hood, Sentencing
in Magistrates' Courts (1962).
2. Jackson states that "the main principle of a sentence being measured by
the gravity of the offence is still operative'* but he takes note of other causes where
principal departures are made. R.M. Jackson, Enforcing the Law 152 et seq. (1967).
www.ili.ac.in © The Indian Law Institute

J974] PROBATION—THE LAW AND PRACTICE IN INDIA 49
the quantum or the quality of punishment; nor were reasons to be furnished

for the decision rendered. The judicial belief was circumscribed by
traditional penal theories of deterrence and retribution. The judge would
fix the maximal or minimal of prescribed penalty or put it somewhere in
between in accordance with his own wisdom, experience, beliefs and pre
judices. In practice, the judicial decision on the sentencing aspect of the
case had not called for much attention nor did it consume much time of the
court.
The situation has been changing imperceptibly and gradually.3 An
awareness of the newer theory of "reforming the offender", or more
precisely the idea of affording opportunity to an offender to reform himself
under conditions provided therefor, is making a debut in penological
thoughts and judicial actions. The existence of a non-punitive mode of
sentencing, though statutorily alive for long, is making its presence felt in
somewhat higher degree than was the case before.
The most significant method of extra mural treatment of offenders has
centred round the concept of probation. At the turn of this century section
562 of the Code of Criminal Procedure, 1898 inlaid the probation con
cept.4 It has continued to remain there with a major amendment in 1923
and consequential changes thereafter. Initially, the provision was of
limited application both in terms of offences to which probation could be
granted, and to the class of persons who were to be youthful offenders
alone. The period of release on probation was limited to the duration of
3. For a discussion of leading tendency in the development of judicial sentenc

ing policy in recent years, see D.A. Thomas, Principles of Sentencing 3-31 (1970),
4. Before the Code of Criminal Procedure (Amendment) Act of 1923, the original
s. 562 provided:
In any case in which a person is convicted of theft in a building, dishonest
misappropriation, cheating, or any other offence under the Indian Panel
Code, punishable with not more than two years* imprisonment before any
Court, and no previous conviction is proved against him, if it appears to the
Court before whom he is so convicted, that, regard being had to the youth,
character and antecedents of the offender, to the trivial nature of the offence
and to any extenuating circumstances under which the offence was commi
tted, it is expedient that the offender be released on probation of good
conduct the Court may instead of sentencing him at once to any punish
ment direct that he be released on his entering into a bond, with or without
sureties, and during such period (not exceeding one year) as the Court may
direct, to appear and receive sentence when called upon and in the mean
time to keep the peace and be of good behaviour:
Provided that, where any first offender is convicted by a Magistrate of
the third class, or a Magistrate of the second class not specially empowered
by the Local Government in this behalf, and the Magistrate is of opinion
that the powers conferred by this section should be exercised, he shall
record his opinion to that effect and submit the proceedings to a Magi
strate of the first class or Sub-Divisional Magistrate, forwarding the
accused to or taking bail for his appearance before such Magistrate,
who shall dispose of the case in manner provided by S. 380.

56 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. i^ : l
one year. By the amending Act of 1923 the legislature sought to extend
the scope of law on probation to make it extensively applicable to a
wider class of persons for larger number of offences, together with
extending the period of release on probation from one to three years. 5
The Select Committee on the amending Bill had stated :
We are of opinion that the salutary provisions of S. 562 of the

Code are capable of extension—more especially in view of the
provisions of sub-S.(3) of the new section proposed by the Bill.
We have accordingly provided that any offender who is over
the age of 21 years may be bound over on conviction of any
offence not punishable with imprisonment exceeding 7 years
and that all women and all persons under the age of 21, may
be so bound over when convicted for offences not punishable
with death or transportation for life.6
The metamorphosis that underwent the provisions of section 562 of

the Code of Criminal Procedure signified future development in the theory
of punishment. It underlined the need for individualising the punishment.
The Indian Jails Committee (1919), which had preceded the amendment
of the Criminal Procedure Code, had also devoted attention to the then
existing conditions of Indian jails, and had also reckoned the need for
reform in the punitive modes as were prevalent in the Indian criminal
laws. The committee emphatically pointed out that the Indian prison
administration had lagged behind on the side of reformation and observed:
It had failed so far to regard the prisoner as an individual and has
conceived of him rather as a unit in the jail administrative machi
nery. It has a little lost sight of the effect which humanising and
5. S. 562(1) of the Code of Criminal Procedure of 1898 reads:

When any person not under twenty-one years of age is convicted of an
offence punishable with imprisonment for not more than seven years,
or when any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or imprisonment foi life,
and no previous conviction is proved against the offender, if it appears
to the Court before which he is convicted, regard being had to the age,
character or antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the offender should
be released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be released on
his entering into a bond, with or without sureties, to appear and receive
sentence when called upon during such period not exceeding three years
as the Court may direct, and in the meantime to keep the peace and be of
good behaviour.
Provided that, where any first offender.. . who shall dispose of the case
in manner provided by section 380.
6. Quoted in P.R. Iyer, 3 Commentary on the Code of Criminal Procedure
2634 (1965),

1974] PROBATION—THE LAW AND PRACTICE IN INDIA 51
civilising influences might have on the mind of the individual

prisoner.... The whole point of view needs to be altered,
not merely isolated details, and the primary duty of keeping
people out of prison needs to be more clearly recognised by
all authorities and not least by courts.7
The progressiveness with which the probation movement gathered
momentum in the country can be noticed through the efforts of the central
government, which decided in 1931 to enact a uniformly administered
central legislation on the subject. A draft Bill on the law of probation was
prepared and was circulated to the provincial governments to elicit sugges
tions and opinions. Before the efforts could bear fruits the Government of
India found itself engaged with important preoccupations. It, however,
informed the provincial governments in 1934 that it would no move further
into the matter,8 and had no objection if the provincial governments
wanted to have a law on probation.
The tempo initiated by the central government had reached a point
wherefromit was difficult to reverse the process of denuding the penal struc
ture of its archaic antinomies. The accelarated pace of widening the
choices for punishment concretised into legislative enactments in Madras,
U.P., Bombay, C.P. and Berar.9 This phase of penal reform extended the
choice of penalties and was over by the year 1936,
The beginning of the second phase can be ascribed to the passing of
the Probation of Offenders Act, 1958 by the Parliament.10 In between the
intervening period no concerted plan seems to be in action to campaign for
the probation movement, or for organising the necessary auxiliary services
for effective implementation of the probation laws. Sporadic thinking by
humanists, and the growing academic interests in penology and criminology
together with the occasional get together of social workers grouped under
one or the other voluntary organisations continued to rake up interest in the
7. Report of Indian Jails Committee 32 (1919). The report also contained a

number of recommendations dealing, inter alia> with such subjects as prison staff, sepa
ration and classification of prisoners, reformatory influences in prison, aid to prisoners
on release, probation and borstal treatment. See V. Bhushan, Prison Administration
in India 22 (1970).
8. See the statement of objects and reasons of the Probation of Offenders Bill,
published in the Gazette of India> Extraordinary•, pt. II, sec. 2, No. 37, dated September
11, 1957.
9. The Madras Probation of Offenders Act, 1937; the U.P. First Offenders
Probation Act, 1938; the Bombay Probation of Offenders Act, 1938; the C.P. and Berar
Probation of Offenders Act, 1936. Although the phase of penal reform in the provinces
was generally over by the year 1938 but some states enacted the probation laws later
e.g., the Hyderabad Probation of Offenders Act, 1953; the West Bengal Offenders (Release
on Admonition and Probation) Act, 1954.
10. Before the passing of the Probation of Offenders Act, 1958, the only central
legislation on probation was contained in s. 562 of the Cr. P.C. which ceased to apply
after the passing of the Probation of Offenders Act, 1958 (s. 19 of the Act).

52 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 1
subject.11 The interest was exhibited through passing of resolutions which

remained mostly buried in office files of the organisation passing it. The
only significance that can be attributed to this inactive action of these
performers is that it kept some kind of debate open on the utility of pro
bation as a newer mode of sentencing the offender. The dormant thoughts
and incipient actions with regard to probation could not evolve any
definitive pattern or a programmatic base for the implementation of
probation philosophy in India. Its renewed birth was through central
legislative action for a uniform spread of the theme.
II. Utilisation aspects of probation

Generally speaking, probation is designed to fill the gap between
harsh penalties of the penal code and the modern trend in penology
directed to humanise the criminal laws. It is believed that if a man
deviates from the path of rectitude he can be directed to the right path
through proper assistance and guidance. If an offender commits an offence
it may be because of necessity, inadvertance, or being in association with
bad characters or just to wreak vengeance. Accordingly, he should not be
rigorously victimised, and should not be made to suffer incarceration, unless
the nature of the offence warrants it.
The occasional lapses which are the outcome of extraneous factors
are curable if proper guidance, assistance and supervision are pressed into
action. It is likely that individualisation of offenders punitive or other
wise, has failed to achieve the desired objective of prevention of recidivsm
or in checking the growth of criminality. But the deleterious effects of
prison life have also not helped the dimunition of recidivism.12 The prison
has no utility in case of short-term sentences.13 For the short-termed
young offenders, the association with hardened criminals have an unwhole
some effect. This has bred a class of persons who launch themselves into
11. Several voluntary agencies variously designated as the Prisoners Aid Society, the
Discharged Prisoners Aid Society, the Released Prisoners Aid Society, etc., were functioning
since long at the state and district levels. Some of these societies were later converted into
crime prevention societies. See generally, Appendix III Working Papers of National
Correctional Conference on Probation and Allied Measures, 1971, organised by the Central
Bureau of Correctional Services, Department of Social Welfare, Government of India.
The papers and proceedings of this conference will hereafter be referred to as the Proceed"
ings, National Corretional Conference (1971).
12. Hood and Sparkes, Key Issues in Criminology 215 (1958).
13. U.N. Report, The Young Adult Offenders 108 ; also Report of Second
United Nations Congress on the Prevention of Crime and the Treatment of Offenders^
London, recommendation No. 4 at p. 63 (1960).
A pilot survey on the impact of institutional care of offenders in the State of
Tamil Nadu, sponsored by the Central Bureau of Correctional Services has .revealed that
short-term sentences, especially on the youth, served no purpose except to cause them
humiliation. See The Hindu, 23-4-1972, p. 7, col. 1-2.

1974] PROBATION—THE LA W AND PRACTICE IN INDIA 53
a career of crime.14
In India no separate arrangement worth the name exists in prisons to
segregate the short-termed young offenders from the long-termed ones.15
The rehabilitative services being absent, a released prisoner finds it diffi
cult to readjust himself in the community. His family life is disrupted,
children are neglected, the employment opportunities are lessened due to
the stigma attached to prison life. The trust of friends and relatives is
lost because of his being branded as a criminal. If the desired result of
reforming the offender can be achieved by individualised treatment, then
the necessity of incarceration of the offender does not arise.16 Except that
by incarceration the offender is taken out of society, and resentment
generated by commission of the offence is propitiated, no other useful
purpose seems to be served.
Society is also not a beneficiary in this respect. The burden of
his family may fall on its resources. However, there are a large number of
criminals for whom incarceration may be the only remedy. Prison treatment
should be given only to those offenders who require it.17. If the criminal-
patient can be cured by an outdoor treatment with the assistance and supervi
sion of probation officers, it is desirable to keep him outside the prison rather
than keep him confined to the society of prisoners. It saves the young
offender from the contaminating effects of prison life and also from the
effect of insular prejudices of hardened criminals against the society, law
and order. Hence, any recourse to prison sentence should be the ultimate
weapon in the armoury of sentencing.
The grant of probation depends on the exercise of judicial discretion
subject to qualifications laid down by the statute. It is neither a "let off'*
nor a leniency. It is subject to certain disciplinary restrictions which may
require the offender to abide by the rules and regulations delineated in the
probation order, or may require him to refrain from certain undesirable
activities. These implied restrictions imposed by the court on the freedom of
14. It has been stated:
Short term sentences are doubly harmful; first, because no useful avoca
tion can be taught to the convicts confined for such a short period, and,
secondly, becase the occasional get an opportunity of mixing with the
habituals and in the process lose the dread for jail which is one of the
best deterrents to crime.
Bhattacharya, Prisons 40 (1958).
15. V. Bhushan, supra note 7 at 98.
16. For the advantages of probation, see Henry P. Chandler, Latter-Day Proce
dures in the Sentencing and Treatment of Offenders in The Federal Courts, 16 Federal
Probation, No. 1, pp. 3, 8 (1952). The economics of probation as against imprisonment
has been less costly. It is estimated to be one-tenth or less than that of prison expense.
See D.R. Taft and R.W. England, Criminology 376 (1964).
17. It has been observed:
We cannot do away with prisons. They will always be necessary for
those whose minds are warped and hopes are lost, who can never return to
society for serviceable citizenship.
Philip Lutz, Probation and Rehabilitation, 2£ J.C.C. & P.S. 917 (1934-3$).

54 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 16 : 1
the probationer, cause irritation and resentment to the offender. The fear
of being reported to the court by the probation officer, in case he fails to
abide by the rules and regulations of probation order, hangs on the head
of the probationer like the sword of Damocles. It enables the probationer
to discover the ability and the way to go straight. This approach is in
concordance with the conclusion that "crime does not pay" and it is
harmoniously set in with :
The fact that the very price of being "let off" is complete sub
mission to the law for the future is a vindication of justice and
right far more impressive than crude retribution.18
Probation is also not a pardon.19 The probationer is fully aware
of the consequences of misuse offlexiblefacilities granted to him by the
court. Probation gives an opportunity to the offender to reshape his life
in familiar surroundings. It encourages him to re-think over his past
follies and facilitates his way to regulate his future life in the community,
which otherwise would have been uncertain. The offender is made to
shoulder his responsibilities instead of being dependent on the state and
leaving his family uncared for. The cumulative efforts of the probation
officer, the court and the community give him insight and courage to meet
his personal difficulties. Probation is helpful in accomplishing the utilitarian
object of protecting society by helping the offender to good citizenship.
III. Development of legal concept of probation

Benefit of clergy
The forerunner of the concept of probation in common law can be
found in the "benefit of clergy", which signified exemption from punish
ment. According to Barnes and Teeters it "may be classed as a jurisdic
tional adjustment or an early form of the suspended sentence."20 Initially,
it was a privilege for a clergyman to be out of the secular courts on
criminal charges. Later, it was extended through English statutes to
include peers who were presumed to be literate, and also to those
commoners who could establish themselves as "clerks" by proving that
they could read.21
18. Walter Raeburn, Probation was Made for Man, 22 Federal Probation, No. 4,
p. 16 (1958).
19. Chapter XXJX (ss. 401, 402, 402A) of The Criminal Procedure Code, 1898
deals with the suspensions, remissions and commutations of sentences. Article 72 of the
Constitution of India provides for the power of the President to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases. Similarly art. 161 of the
Constitution gives power to the Governor of a state to grant pardons, etc.
20. H.E. Barnes and N.K. Teeters, New Horizons in Criminology 553 (1960).
21. Blackstone, 4 Commentaries on the Laws of England, ch. 28 (1844).

The use of this plea for clergyable felonies instanced the exercise of
practical discretion in regard to the mitigation of punishment. In the
eighteenth century, the concept and practice was well set up. Foster stated :
[W]e now consider the benefit of clergy, or rather the benefit

of the statute, as a relaxation of the rigour of the law, a con
descension to the infirmities of the human frame; and therefore
in the case of all clergyable felonies we now measure the
degree of punishment by the real enormity of the offense ; not
as the ignorance and superstition of former times suggested by
a senseless dream of sacred persons or sacred functions.22
A detailed account of the working of "benefit of clergy", which
can well correspond to the probation measure of today, has been described
by Romilly.23
The antiquated form of probation in the name and style of "benefit
of clergy" did have some essential characteristics. A special treatment,
other than the prescribed rigours under the law, was envisaged for applica
tion to a class of persons who could be selected on some criterion. This
was to be conducted through an existing institution of bishop's clerks,
which could well be understood to correspond with probation officers in
the modern sense of the term. If practical lessons are to be drawn from
the working of ''benefit of clergy", for practical and rational approach
towards probation within the infrastructure of criminal law and procedure,
then it is necessary that in addition to the legislative injunction about its
applicability to young offenders or first offenders, the state manages before
hand to create intensive and extensive supervisory modes. A mere passing
of legislation does not require the judiciary to act on its own to exercise
22. Foster, Crown Law (2nd ed. 1791).

23. See Romilly, Observations on the Criminal Law of England, 103-104 (3rd ed.).
The interesting revelations made therein need be quoted in extenso:
Before the reign of Queen Anne, when the benefit of clergy was allowed
to such only as could read, and when consequently the ignorant were doomed
to die for offences for which a slight punishment was inflicted on those
who had received some education . . . the gross absurdity and injustice of
the law was in a considerable degree corrected by the falsehood of the cleric
who was to report of the convict's learning, and by the connivance of the
Court, But this connivance was not universal, the judge exercised his dis
cretion whether to connive or not. In common cases he received the false
certificate without inquiry, but where he thought that he discerned circum
stances of aggravation, he scrutinized strictly into the prisoner's ability to
read Instances of this kind afforded no just cause of complaint. The
convict it is true suffered the greater punishment for his offence because
his parents had neglected his education, but such was the law, and though
the judge in his discretion connived at a departure from it in nineteen cases
out of twenty, he could hardly be said to deserve censure when in the
twentieth he only took care that the law should not be evaded.

56 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 16 :1
powers of the probation perfunctorily and, thus, absolve itself of its

onerous duty of seeing that those who have committed a breach of law
ought not go unpunished, or even without any kind of restraint being
imposed upon them.
Under the Indian law the demand for security for keeping peace and
good behaviour from certain classes of offenders24 implicitly endorses the
use of non-punitive measures. The use of preventive procedure aims at
affording the offender an opportunity to disengage from the path of crimi
nal career with a view to reinforcing the interests of public safety and public
tranquillity. The law prescribes a detailed procedure for the exercise of this
jurisdiction. The magistrate is required to inquire into the truth of the
given information by making inquiries as "nearly as may be practicable, in
the manner hereinafter prescribed for conducting trials and recording
evidence in summons case"25 which would necessarily involve, without
being too technical, the information as to the antecedents and circums
tances of the offence as well as the offender. The total information about
the event and also about the wrongdoer may call for the exercise of juris
diction (i) to order to furnish security ;26 (ii) the discharge of persons
informed against;27 (Hi) rejection of sureties;28 (iv) imprisonment in default of
security ;29 (^) in releasing persons imprisoned for failing to give security.30
The exercise of this power is dependent on the information submitted to the
court by police agency during inquiry. It may also be exercisable in certain
cases after the order for keeping good behaviour has been passed by the
court. The existence of adequate machinery for the discharge of entrusted
functions, is sine qua non for the exercise of this discretion, because the
laws, while reckoning the fact of corrigibility of the offender, do not permit
that the interest of public safety be bypassed.
Other modes of individualisation

The practical demands on criminal law have devised ways and means
to keep a balance between the protection of society and the need for
accommodating the not-too-incorrigible offender for purposes of reform.
Judicial methods have improvised means to humanise the laws in appro
priate cases. Reprieve and recommendation for pardon can be cited as
examples where exigencies of situation have impelled the courts to adopt a
lenient view.
Likewise, the tempering of the processes of criminal justice by jurors
can be seen in the use of jury in criminal trials. In England, it is
24. Ch. VIII, the Code of Criminal Procedure, 1898,

25. Id. s. 117(2).
26. S. 118.
27. S. 119.
28. S.122.
29. S. 123.
30. S. 124.

1974] PROBATION-THE LAW AND PRACTICE IN INDIA 57
well-known that compassionate verdicts of jurors so often defied the plain

truth and undisputed evidence of the guilt. In other words, the jury
verdict comes as an expression of public sympathy and participation in
such cases.31 It is assumed that, in the absence of jury system in India,
the courts perform the dual functions of dispensing justice and the keeping of
public conscience. Accordingly, they cannot be insensitive to the latter's feel
ings.32 It is not alone true that the public conscience would always clamourfor
piety, compassion and leniency. It is likely that once their sense of safety and
security is endangered by the blanket use of discretion, with consequential
effects of letting off the wrongdoers without appropriate machinery being
existent to put proper checks upon them, then the public conscience may
get enraged.
IV. Protection of society—the mainstay of probation
The foregoing discussion on the legal concept of probation recognises
the elemental need of reforming the offender within a framework fabricated
for the purpose ; and without impairing the interests of public safety or
having unwholesome side effects thereon.
It is wrong to assume that the probation merely seeks to reform the
offender. The insistence on the isolated concept of reform of the offender,
without viewing it in the totality of the object and purpose of criminal
law is completely erroneous. Probation is primarily directed at the pro
tection of society rather than the reform of the offender. The famous
Wickersham Report stated :
Probation, like parole and imprisonment, has as its primary

objective the protection of society against crime. Its methods
may differ, but its broader purpose must be to serve the great
and of all organized justice—the protection of the community....
Probation is an extension of the powers of the court over the
future behavior and destiny of the convicted person such
as is not retained in other dispositions of criminal cases....in
probation (there) is the recognition that in certain types
of behaviour problems which come before the courts confine
ment may be both an unnecessary and an inadequate means of
dealing with the individuals involved ; unnecessary because in
31. A historical account of the idea of public participation and representation

through jury is to be found in M.V. Clarke, Medieval Representation, esp. ch. XIII (1936).
32. The suggestion that jury in India is a built-in part of the judicial functions was
rightly made by Gwyer, C.J., three decades ago. Gwyer, C.J., remarked:
[I]f the Courts. ..assume in part the functions of jurymen when they
hear these cases, they will generally be able to come to a decision not only
in harmony with the true principles of law, but also not obnoxious to
commonsense and the circumstances of the time. (Niharendu Dutt
Mazumdar v. Emperor, A.I.R. 1942 V.Cn ft %\ 26).

58 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 16:1
that particular case the ends ought, i.e., the protection of society,
may be achieved without the cost of confinement, and inadequate
because the prison sentence may create difficulties and compli
cations whieh will make more, rather than less, doubtful the
reinstatement of that particular individual as a law-abiding
citizen.33
Judge Alexander Holtzoff, stated that:
[I]t should always be kept in mind that the aim of probation is
to protect society against a repetition of the defendant's depre
dations by rehabilitating him and transforming him into a law-
abiding member of the community.34
The requirement of social protection can be met in both ways, viz.,
by making use of the existing penal processes against the wrongdoer, and
by restoring the offender to good citizenship. The former cannot be
completely replaced by the latter which has to be resorted to as a construc
tive mode of administering justice in certain situations and for a certain
class of persons. The latter assumes the form of community treatment in
which are enmeshed, (a) the integration and adjustment of the person ;
(b) the relief of detrimental social pressures for the adjustment of the
individual wrongdoer.35 The method of community treatment seeks to
achieve ultimate re-establishment of the offender in the community but it
involves the discipline of submission by the offender while at liberty to
supervision by a probation officer.36
V. Probation—a prognosis
The Probation of Offenders Act, 1958 recognises the need of experi
menting to deal with young offenders and first offenders in a non-punitive
way by releasing them on probation or letting them off after admonition.
It is doubtful if it is designed to give equal emphasis to the protection of
society.
The Act chiefly focuses attention on offenders below the age of
twenty-one years who are to be subjected mandatorily to probation treat
ment in accordance with the provisions of section 6 of the Probation of
Offenders Act. The court has also absolute discretion to apply the pro
bation law to offenders above the age of twenty-one years as provided in
section 3 and 4 of the Act. In terms of the probation measures as prescribed
33. Report of the National Commission on Law, Observance and Enforcement

(Wickersham Report), No. IX, p. 146.
34. Alexander Holtzoff, Duties and Rights of Probationers, 21 Federal Probation,
35 (1957).
35. John P. Conrad, Crime and its Correction 26 (1965).
36. The Sentence of the Court 10 (H.M.S-O. Publication, 1969).

under the Act, further classification can be made, viz., (a) persons who are
eligible for probation under section 4 of the Act, and (h) persons who are
eligible for admonition under section 3 of the Act.37
Section 6 of the Probation of Offenders Act mandatorily requires that
the cases of offenders beloW twenty-one years of age be dealt with in such a
manner that they secure release either on probation or after admonition. 38
Should an interruption in conviction through probation or admonition be
nQt possible in a case, the court is required to furnish reasons therefor. The
desirability of imprisoning an offender below the age of twenty-one years
has to be formulated on the satisfaction of the court, which in turn must be
founded on the report of the probation officer together with any other
information available to the court relating to the character as well as
physical and mental condition of the offender.39
It can be understood that the issue of desirability of not letting off an
offender by way of probation or after admonition ought to be influenced by
the report of the probation officer, who while acting through his experience,
observation and objectively attained data (regarding the offender) is in a
position to express himself on the possibility of securing such responses as
may have effective reaction in a particular case.
Thus, the import of the legislative injunction putting restrictions on
the imprisonment of offenders under twenty-one years of age centres round
the agency of a probation officer who is to be entrusted with the responsi
bility of investigating and preparing a pre-sentence report for the court. In
the absence of any such agency, operating extensively and effectively, the
exercise of discretion by the court so as not to allow an offender, (under
37. Persons eligible for admonition are those who are found guilty of:
[H]aving committed an offence punishable under section 379 or section
380 or section 381 or section 404 or section 420 of the Indian Pencal Code
or any offence punishable with imprisonment for not more than two
years, or with fine, or with both, under the Indian Penal Code or any
other law. (S. 3 of the Probation of Offenders Act).
38. S. 6 of the Probation of Offenders Act, 1958 reads:
(1) When any person under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but not with imprison
ment for life), the Court by which the person is found guilty shall not sentence
him to imprisonment unless it is satisfied that, having regard to the circum
stances of the case including the nature of the offence and the character of
the offender, it would not be desirable to deal with him under section 3 or
section 4, and if the Court passes any sentence of imprisonment on the
offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal
under section 3 or section 4 with an offender referred to in sub-section (1),
the Court shall c ill for a report from the probation officer and consider the
report, if any, and any other information available to it relating to the
character and physical and mental conditions of the offender.
39. Id. s. 6(2).

twenty-one years of age) the benefit of probation or admonition cannot

strictly be in order. The type of sentence required to be prescribed for each
offender must find its base on the concept of individualisation of punish
ment for which supplemental information and aid must be with the court
through auxiliary agencies.
The release on probation or admonition for offenders below the age
of twenty-one years is, thus, the desire of the legislature. It can be gain said
that such releases would be found in practice too, because the courts seem
to be prone to give the probation concept a fair chance to grow. It is
also convenient for the court to adopt a progressive attitude in this matter.
By not doing so, the court will have to exert to find reasons founded on the
report of the probation officer, if any, and any other information available
to it.*0
The legislative device to release the young offenders may be a laudable
one. To many, it is also in keeping with the modern trends in
penology, which at times, because of the lack of appreciation for its scientific
purpose, is misunderstood to be a phenomenon of compassion and pathos.
The judicial dicta on the subject are often found subdued by such feelings.41
This also activates the judicial process to make indiscriminate use of the
probation measures. If the discretion, to withhold probation in a fit case
has to be exercised, then it casts additional duties on the court to secure
reasons. In practice, no effective organisation to do the pre-sentence
investigations for the purposes of probation exists. Accordingly, if the
legislative desire has to be compatible with the interests of social order, it
would be appropriate to consider separating the sentencing functions, and
assigning the same to a board set up for the purpose of dealing with the
young offenders.
The power of the court to prescribe probation to offenders is also to
be found under section 4 of the Probation of Offenders Act, 1958. Section
4 of the Act precludes from its purview persons found guilty of having
committed an offence punishable with death or imprisonment for life. As
regards other offenders the provision reads that:
[T]he Court by which the person is found guilty is of opinion

that, having regard to the circumstances of the case including
the nature of the offence and the character of the offender, it is
expedient to release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the
time being in force, the Court may, instead of sentencing him at
once to any punishment, direct that he be released on his entering
into a bond, with or without sureties, to appear and receive
sentence when called upon during such period, not exceeding
40. Ibid.
41. See infra notes 87-105.

J$74] PROBATION—TtlE LAW AND PRACTICE IN INDIA 61
three years, as the Court may direct, and in the meantime to

keep the peace and be of good behaviour.
The release order of the court may direct that the offender or his
surety should reside in a fixed place in which the court exercises jurisdic
tion."
Before making the probation order the court takes into consideration
the report, if any, of the probation officer concerned.43 The Act also
provides :
When an order under sub-section (1) is made, the Court may,
if it is of opinion that in the interests of the offender and of the
public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the super
vision of a probation officer named in the order during such
period, not being less than one year, as may be specified therein,
and may in such supervision order impose such conditions as it
deems necessary for the due supervision of the offender.44
The supervision order shall require the offender to enter into a bond,
with or without sureties, to observe such conditions as may be specified in
the order.45 The supervision order shall be explained to him along with
its terms and conditions. A copy of the supervision order has to be furni
shed each to the offender, the sureties, if any, and the probation officer.48
Thus, it may be seen that an order for non-punitive treatment of the
offender is dependent on, (/) the finding of the court that the person is not
guilty of an offence punishable with death or imprisonment for life; (ii) that
it is expedient to release the offender on probation of good conduct on the
basis of the circumstances of the case, the nature of the offence and the
character of the offender; (Hi) the offender's entering into a bond with or
without sureties that he will appear to receive the sentence within the period
of three years; (iv) the report of the probation officer, if any, in relation to
the case. The foregoing factors are the prerequisites for invoking the court's
power to exercise probation jurisdiction for the release of the offender.
The release of the offender is subject to the above qualifications. If the
above requirements are present in a case, and the court is of the opinion
that the release on probation is a legislative injunction, which it must obey,
then other determinative factors necessary for implementing the purpose of
probation become redundant.
It is submitted that the entering into bond by the offender, with or
without sureties, and also appearing and receiving sentence, if necessary, are
42. S. 4(1) of the Probation of Offenders Act, 1958.

43. S. 4(2).
44. S. 4(3).
45. S. 4(4).
46. S. 4(5).

61 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16:1
in no way corrective actions nor can these be understood to be reforma

tory measures as find endorsement in judicial pronouncements. The pro
cedure very much corresponds to the bailing out of the offender. A follow-
up action, after the probation order is passed, is very necessary. It must
be in the form of gearing up the probation machinery for the action. An
offender left to himself without punishment, or for that matter without
supervision by a probation officer which is intended to be a substitute for
punishment, amounts to abandoning the criminal law process in midway.
The administration of criminal justice is incomplete if the conviction of
the offender remains without a sentencing action, be it in the nature of
judicial action of punishment or through the executive action of pardon.
So far as the judiciary is concerned, it cannot release the offender without
punishing him or substituting the penalty with the supervision of a proba
tion officer, which in turn acts as a penalty. The concept of release on
good conduct without an official agency having effective and regular control
over the offender is not within the successful concept of probation.47 It is
an antithesis of probation inasmuch as it exposes the society to hazardous
action of the offender who has been let loose by the judicial organ of the
state on misconceived application of the probation laws.
Section 4 contemplates that the release of offenders on probation of
good conduct is a sentencing action. However, it does not seem to put the
offender under supervision of the probation officer. The nature of action
taken under section 4(1) of the Act, is at best a conditional release.48 The
provision for probation action is contained only in section 4(3) of the Act
which requires that if the court is of opinion that the interests of the
offender as well as the public deem it expedient to place the offender under
supervision of the probation officer, it would act accordingly.
In order to implement probation, the law contingently places reliance
on the existence of twin interests of the public and the offender. These
are actually the purposes underlying any legislative scheme seeking to
implement probation policy. Other forms of sentencing actions like con
ditional release and admonition are misnomers for probation. The use and
application of these actions as a substitute for punishment administered
through judicial process raise debatable issues. It is likely that these
form of actions are executive in character and any decision as to whether
a person be released absolutely or conditionally, or be admonished, are to
47. The requirement of supervision is essential and it has been taken cognisance
of by s. 5 Probation of Offender Ordinance 1960 of Pakistan which provides that a court
has the power to make probation order if it is deemed expedient to do so but it would
require the offender to be under the supervision of a probation officer for a period of not
less than one nor more than three years.
48. The practice of conditional release for suspended sentence has been discar
ded as a measure of probation. In the United States "the Federal probation system was
established to take the place of a former practice of suspending sentence." See 39
Opinion of Attorney General 547 (1936) cited in 18 U.S.C.A., ch. 231, s. 3651, note 23.

1074] PROBATION—THE LAW AND PRACTICE IN INDtA &
be dependent largely on a policy that the executive may adopt on the basis
of its possible repercussions on the law and order, and the set-up that the
executive may have in readiness to meet the challenging effects as a result
of the decision.
However, it may be remarked that the law on probation as contained
in the Probation of Offenders Act is ambiguous. The law-makers do not
seem to have clarity of objective. The Act contains all assorted newer
modes of sentencing actions, which rightly or wrongly are masqueraded as
non-punitive treatment forgetting thereby that these actions, except the
probation with supervision,19 are not meant to be a replacement of judicial
function of imposing punishment.
The use and application of probation needs a clear understanding of
the purpose and policy behind it. It also needs a clear reckoning of the
fact that the newer trends in penology, which have warranted more atten
tion to the person of the wrongdoer, do not call for showering benevolence
and piety on the offender outside the realm of criminal law and justice. It
may be reiterated once again that probation does not contemplate to afford
lenient action to the offender.50 On the contrary, it aims at insuring
protection to society and its law-abiding members through remedial
efforts exercised over the corrigible offenders.
The lacunae with which the provision of probation as well as the Act
itself suffers need consideration for rectification and amendment so that a
shapely probation policy streamlined with modernity and helpful to the
administration of justice can be had. The features and concepts of proba
tion as have been presented by our legislation are not in conformity with
the two trends that have emerged in this area. Nor does it disclose any
rational principle known to, or recognised in the domain of, criminal juris
prudence,51
VII. Probation service—an analysis of facts
With the passage of the Probation of Offenders Act, 1958, it is now

gradually being emphasised that courts should exercise discretion heavily
in favour of releasing offenders instead of letting them remain in the prison.
The Act requires that the offender be subjected to non-punitive measures
49. S. 4(3), t' e Probation of Offenders Act, 1958.

50. Sanford Bates, When Is Probation Not Probation, in R.M. Carter and L.T.
Wilkins (ed.), Probation and Parole: Selected Readings 65 (1970)
51. It "has been observed:
An international definition of probation is that it consists of the condi
tional suspension of punishment while the offender is placed under personal
supervision and is given individual guidance or treatment.
J.D. McClean and J.C. Wood, Criminal Justice and the Treatment of Offenders
158 (1969).

as prescribed in the Act.52 Accordingly, we are concerned with the

measures of release of the offenders on bond with or without sureties,63 and
also with the probation with supervision as stated in section 4(3) of the
Probation of Offenders Act.
As stated earlier, the mere release on bond of the offender is a misno
mer for the probation and has wrongly been included to be so under the
Act meant for implementing a law on probation. The mode prescribed under
section 4(3) of the Probation of Offenders Act wherein an order can be
passed by the court to keep the offender under the supervision of a proba
tion officer is, of course, a probationary measure.54 Since the courts enforce
the probation law, it is logical to reckon the actualities about the adminis
tration of probation. Therefore, any exercise of discretion in favour of
prescribing probation, as against the punishment of imprisonment, necessita
tes to gauge the working of the probation machinery in this country. If
the states are not adequately equipped to carry forward the assigned task
of supervising the offender, then an overly emphatic appeal to the judiciary
to abandon its responsibility to punish an offender by letting him off on
the pretext of sham probation, is to abet the law courts to act without
any conception of the purpose of criminal law and justice.
Probation officer—a chief constituent

Three elements play an important part in determining the success or
failure of the probation programme. These are, (/) the preparation and
presentation of the pre-sentence report which serves to guide the court in its
decision, (ii) suspension of the offender's sentence for a period under such
conditions as the court may determine, together with the retention of the
offender within the community rather than in prison, and finally (Hi) the
supervision of the probation by a carefully trained probation officer.55 In
activating each of the above elements the probation officer has to play a
pivotal role.
52. The preamble to the Probation of Offenders Act, 1958 provides a guideline
for the release of offenders on probation and admonition. Besides, ss. 3, 4 and 6 of the
Act lay emphasis on the release of offenders on admonition or probation instead of their
being sentenced to punishment.
53. S. 4 of the Probation of Offenders Act empowers the court to release an
offender "on his entering into bond, with or without sureties".
54. A supervision order is not mandatory according to section 4(3) of the Pro
bation of Offenders Act, which reads:
When an order under sub-section (1) is made, the Court may, if it is of
opinion that in the interests of the offender and of the public it is expedient
so to do, in addition pass a supervision order directing that the offender
shall remain under the supervision of a probation officer named in the
order during such period, not being less than one year, as may be specified
therein, and may in such supervision order impose such conditions as
it deems necessary for the due supervision of the offender.
55. Judah Best and Paul I. Birzon, Conditions of Probation, in supra note 50
411.

The successful implementation of the probation system, thus, depends

upon the skill and resources of a probation officer. Professional competen
ce is necessary. It is because the circumstances, which bring youthful
offenders to the attention of the probation officer frequently, are but the
symptoms of deeper problems for which there may be neither a single cause
nor a single treatment. Furthermore, the probation service constitutes a
programme of diagnosis, evaluation, and treatment of particular needs of
the individual in the belief that, with proper help, the reform of the offender
can be effected. The professional competence of the probation officers can
help the arrest of crime rates and is in the best interest and welfare of the
community as a whole.
Section 562 of the Criminal Procedure Code is silent on the
role and function of a probation officer.56 The central legislation on proba
tion as well as the laws of different states have provisions with regard to
the probation officer,57 The need of a functionary around which the pro
bation mechanism can be woven in the administration of criminal justice is,
thus, statutorily recognised.
Section 13 of the Probation of Offenders Act, and also the state laws
furnish the kind and type of probation officers intended to be deployed
for manning the probation services in the country.58 It provides that a
probation officer can be either, (a) an appointee of the state government or
one who is recognised as such by the state government; or (b) a person pro
vided for the purposes of probation by a society recognised in this behalf by
the state government; or (c) any other person who in the opinion of the court
is fit to act as a probation officer in the special circumstances of the case.
This section also provides that a court which passes an order under section
4 of the Probation of Offenders Act, or the district magistrate of the
district in which the offender for the time being resides, may at any time
56. There is no provision for the supervision of offenders released on probation

of good conduct by the court or for the appointment of probation officers for the pur
pose of pre-sentence investigation report under s. 562 of the Criminal Procedure
Code, 1898.
57. S 14 of the Probation of Offenders Act, 1958 provides for general duties
to be performed by a probation officer. Different state laws have also similar provisions.
For example, s. 11 of the Bombay Probation of Offenders Act, 1938, s. 13 of the C.P. and
Berar Probation of Offenders Act, 1936, s. 10 of the Hyderabad Probation of Offenders
Act, 1958, s. 10 of the Madras Probation of Offenders Act, 1937 s. 10 of the U.P. First
Offenders Probation Act, 1938 and s. 10 of the West Bengal Offenders (Release on Admo
nition and Probation) Act, 1954.
5S. S. 13 of the Probation of Offenders Act lays down general rules for the
appointment of probation officers. Similarly, s. 10 of the Bombay Probation of Offen
ders Act, 1938 provides for the appointment of probation officers. S. 12 of the C.P.
and Berar Probation of Offenders Act, 1936, makes provisions for probation officers.
Ss. 9 respectively of the Hyderabad Probation of Offenders Act, 1953, the Madras
Probation of Offenders Act, 1937, ihe U.P, First Offenders Probation Act, 1938 and the
West Bengal Offenders (Release on Admonition and Probation) Act, 1954 lay down
the requirements for the appointment of a probation officer.

appoint any other person as probation officer in place of the person named
in the supervision order.
Reference to other types of probation officers has also been made
under the rules framed by the states under their own probation laws, or
under those rules which have been enacted in the exercise of the power
conferred under section 17 of the Probation of Offenders Act. The office
of the probation officer has been variously designated as ''salaried" and
"honorary". 59 Rule 8(3) of the Tamil Nadu Probation of Offenders Rules,
1962 also provides for the appointment of a "special probation officer"60
while rule 8 of the Punjab Probation of Offenders Act has a provision for
"part time" probation officers.61
The "special probation officer" referred to in the state rules purports
to provide the court with such skilled knowledge and technique as may be
required in the circumstances of the case, and also to render special assis
tance to the court as contemplated under section 13(1) (c) of the Act. In
essence, the rule does not seem to yield the desired effect as pointed out
above. On an analysis of the contents of the rule, one may find that it
does not enable the court to have a choice of a person of exceptional skill
for dealing with an exceptional situation. Under the Tamil Nadu rule, the
eligibility for the appointment of "special probation officer" is much less
than the one prescribed for the appointment of a regular probation
officer.62 However, the Punjab rules ask for some additional attributes
from a special probation officer than those prescribed for the regular ones.
59. See generally, for the appointment of 'salaried and honorary' probation
officers, the Kerala Probation of Offenders Rules, 1960, the Tamil Nadu Probation of
v Offenders Rules, 1962 and the Orissa Probation of Offenders Rules, 1962.
60. R. 12 of the Assam Probation of Offenders Rules, 1962, r. 12 of the A.P. Pro
bation of Offenders Rules, 1963, r. 13 of the Maharashtra Probation of Offenders Rules,
1966, r. 10 of the Orissa Probation of Offenders Rules, 1962, r. 12 of the Rajasthan
Probation of Offenders Rules, 1962, and r. 22 of the U.P. First Offenders Probation Rules,
1930 also deal with the appointinent of 'special' probation officers by the court under
s. 13(c) of the Probation of Offenders Act, 1958.
61. Besides the Punjab Probation of Offenders Rules, provisions regarding part-
time probation officers are to be found under s. 6 of the Assam Probation of Offenders
Rules, 1962, r. 10 of the A.P. Probation of Offenders Rules, r. 11 of the Maharashtra
Probation of Offenders Rules, 1966 and r. 10 of the Rajasthan Probation of Offenders
Rules, 1962.
62 Under r. 8(3) of the Tamil Nadu Probation of Offenders Rules, 1962, the
requisite qualifications for the appointment of an 'honorary' probation officer and a
'special* probation officer are the same. It reads: "No person shall be eligible to be
appointed as an Honorary Probation Officer or as a Special Probation Officer unless—
(0 he has completed 25 years of age and has not completed 50 years of age at the time
of his first appointment ; (//) he is a person of good character and is competent by his
personality, training and education to influence for good, an offender placed under
his supervision; {Hi) he is in a position to devote adequate time to the supervision of
offenders; (iv) he resides in the district or in the vicinity of the probationers ; (v) he is
able to read and write English and Tamil; (W) he is fully conversant with the Act and
the rules ; and (vii) he is willing to attend to supervision work without claiming
conveyance or any other allowances."

A part time probation officer is required to" be a resident of tl e district

where he has probationers under his charge and be in a position to devote
adequate time for the supervision of probationers. Besides, he should also
have sufficient practical experience in sccial-welfare work or in teaching or
in the moulding of character and ability to get fully conversant with the
provisions of the Act and the rules made thereunder.
The probation officers are to give effect to the salutary principles and
policies of probation. Their qualifications for appointment and conditions
of service are incorporated in the rules. 63 The rules generally look for a
probation officer with adequate educational attainments, good character
having maturity of age, experience, aptitude, zeal and a ''calling" for
probation work as well as a personality suitable for influencing persons
placed under his supervision. His influence would be in respect of the
probationer conforming to law during the period of probation and
reforming his character ;md attitude to social behaviour/ 1
Some of the states have enjoined upon the appointing authorities to
provide facilities for the training of probation officers before they take up
the task of supervising probationers. The rules framed under the Proba
tion of Offenders Act and the various state laws also mention that the pro
bation officers should be persons having adequate training and experience/ 5
No uniform practice has been evolved to select the candidates. In
the United Kingdom a systematic procedure has been formulated. The
Probation Advisory Training Board of the Home Office selects the candi
dates in accordance with the procedure recommended by the National
Institute of Industrial Psychology in 1946/ 6 In-service training is also given
due emphasis. The National Association of Probation Officers gives
detailed consideration to matters of professional competence and improved
methods of training. This has consequently yielded recommendations to
be made to the Probation Advisory Training Board of the Home Office. In
India, the broad and vague criteria set up for the selection cf personnel
have left enough room for getting an assorted variety of men inducted into
the probation services, which is actually the state of affair in this regard.
The general pattern of qualifications prescribed for a probation officer
under the rules is that he is to be a graduate with soma orientation in
sociology or psychology/ 7 A trend to demand a stricter standard of pro-
63. S. 17 of the Probation of Offenders Act, 1958 empowers the states to make
rules for the appointment, duties and salaries, etc., of the probation officers. Accordingly,
many states in which the Act has been brought into force, have enacted their own
rules.
64. See r. 9 of the Maharashtra Probation of Offenders Rules, 1966,
65. E.g. according to r. S(d) of the Keiala Probation of Offenders Rules, 1960, a
probation officer on probation has to undergo three months' training under the chief
probation superintendent before taking up his duties.
66. John F.S. King, The Probation Service 138(1964).
61. See also r. 8, the Tamil Nadu Probation of Offenders Rules, 1962, r. 8, the
Kerala Probation of Offenders Rules, I960, rr. 9, 10 and 11 of the Maharashtra Probation
of Offenders Rules, 1966.

68 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. \6 : 1
fessional competence is also discernible/ 8 Likewise, the aspect of training

of the probation officers has not been given adequate attention. The rules
and practices in this regard are satisfied if an entrant to probation services
fulfils the ritual of completing the routine attendance at a probation officer's
office. The university training programmes are limited and are found
more organised at the postgraduate level than at the undergraduate or
certificate level. The uncertainty of employment in the correctional field
and the low scales of salary serve as further brakes in the growth of a
professionalised probation service.
Any digression to discuss in detail the need9 importance and curricula
for the adequate selection and training of the personnel for probation
services, is not within the purview of this discussion. But, a useful guide
line can be provided by the recommendations of the National Association
of Probation Officers in the United Kingdom (1958), which require the
trainee to undergo three stages of training, viz., "orientation", "theoretical
training" and "casework training"/ 9 The elements of training are common
to each stage but the emphasis varies.70 The right type of person selected to
handle the probationer is the focal point of a successful probation program
me. His training to develop the professional skill is to be taken note of
in the beginning, and more formal in-service training should not be thought
of as a substitute for the necessary pre-service education and experience.
This does not mean to minimise the importance of in-service training and
short term courses for the continuing education of officers; but the snags in
the future progress of probation policy and programme can be removed if
initial efforts are directed to create an appropriate cadre of counsellors needed
for the difficult task in the adjustment of human relationship through a
penal process. One may, however, find that not much thought has gone
into the shaping of a probation officer and assigning him a proper role and
function. Under the Indian law of probation the professional probation
officer has emerged only amorphously.
Obligations of the probation officer
It is essential to know as to what is expected of the personnel man

ning the probation services. The delicate and difficult task of handling a
young offender, with a view to making him realise his follies and educating
him, has to be dealt with special skill. It can be done by a skilled
68. For example r. 6 of the U.P. First Offenders Probation Rules, 1939 lays down
that the appointment of a salaried whole-time probation officer is not to be approved
unless he (/) is not less than 25 and not more than 35 years of age at the time of first appoint
ment, (H) is a person of good character and competent by his personality, training and
education to influence for good a probationer placed under his supervision; (Hi) has
received sound education and possesses sufficient practical experience of social welfare
work; and (iv) is fully conversant with the Act and the rules.
69. See John F.S. King, supra note 66 at 227-230.
70. Id. at 140.

1914} PROBATION-THE LAW AND PRACTICE IN INDIA 69
probation officer, who can ably deploy techniques to produce motivation for
change in the probationer. According to an experienced staff supervisor of
probation service the handling techniques include such things to be
doners :70a
1. Accepting and understanding the probationer without condoning
his actions. Warmth, empathy, and a knowledge of personality
development are important here.
2. Helping the probationer to discharge inhibiting emotions by
expressing them in a permissive, non-directive setting.
3. Giving the probationer insight into why he feels the way he does.
4. Suggesting ways to control or re-channel harmful emotional
reactions.
5. Supporting and recognizing his efforts to change,
6. Helping him to define problem areas in his life and the implica
tions of these problems.
7. Broadening his viewpoint through exploring ways to improve his
adjustment to society.
8. Helping him to face reality and to work out acceptable methods
of dealing with reality.
9. Referring him to other appropriate agencies for help with special
problems, for example, to psychiatric clinics for help with
personality disorders, to employers or employment agencies
for suitable work, to Alcoholics Anonymous for a drinking
problem.
10. Helping the probationer to build, with his own unique resources,
a more satisfying life, not by giving him orders, but by enriching
his own plan and relating it to reality.
11. Interpreting the probationer to others with whom he must deal
so that demands on him will not produce harmful stresses.
12. Exploring specific relationship problems and helping him to deal
wisely with them,
13. Building his self-respect and feeling of self-worth.
14. Manipulating environmental factors where they are contributing
to maladjustment.
In addition to the generally stated foregoing duties, the statutory
rules require specific obligations on the part of the probation officers. The
nature of the duties require confidence and secrecy as far as the infor
mation regarding the probationer is concerned. Under the rules framed
by the states, a probation officer is required not to divulge any information
concerning their enquiries or probation work to any person other than the
70a. W.T. McGrath, Crime and Its Treatment in Canada 224-225 (1965).

70 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 ; 1
authorities to whom they are required to report, except in so far as it is

necessary to do so in the interest of any probationer.71
However, the data available on the structure and functioning of proba
tion services in the various states is revealing. Table I is illustrative of the
TABLE I72
Probation services in India—1968
Name of the state Number Number Number Total num- Total

of dis- of pro- of volu- ber of number
tricts bation ntary social in- released on
officers proba- quires probation
(stipen- tion
diary) officers
1 2 3 4 5 6
1. Anddhra Pradesh 20 49 , 5238 853

2. Assam 11 9 — — —
3. Gujarat 17 55 14 2424 425
4. Haryana 7 10 — 112 474
5. Kerala 9 13 3 2569 1253
6. Madhya Pradesh 42 — • 91 — —
7. Maharashtra 19 35 _L 5564 197
8. Mysore 13 t 21 — 1719 267
9. Oris^a 13 13 — — —
10. Punjab 11 13 2 489 768
11. Tamil Nadu 26 68 — 28267 6877
12. Uttar Pradesh 54 57 — — 2412
13. West Bengal 6 9 — — —
Union Territories 9 27 1 4628 256
Total 257 y, 9 111 51010 13782
71. According to r. 17 of the A.P. Probation of Offenders Rules, 1963, r. 22 of

the Assam Probation of Offenders Rules, 1962, r. 20 of the Bihar Probation of Offendeit
Rules, 1959, r. 23 of the Maharashtra Probation of Offenders Rules, 1966, r. 14(3) of the
Orissa Probation of Offenders Rules, 1962, r. 20 of the Punjab Probation of Offenders
Rules, 1962, r. 22 of the Rajasthan Probation of Offenders Rules, 1962, r. 16 of the
Tripura Probation of Offenders Rule, 1960 and r. 16 of the West Bengal Probation of
Offenders Rules, 1960, a probation officer is not to divulge information regarding the pro
bationer unless it is necessary to do so.
72. This and other statistical information has been collected and collated from
the bulletins, and papers circulated by the Central Bureau of Correctional Services,
Government of India, at the National Conference on Probation (1971).

skeletal arrangement of probation service available in a country where the

percentage growth of crime has gone up by 39,4 during the decade succeed
ing the enactment of the Act.73
A somewhat deeper probe would reveal that what has been presented
statistically above is not even true to that extent. The strength of proba
tion officers in some states do not tally with the working strength of officers.
For example, in the State of U P . (consisting of 54 districts), the probation
organisation had a working strength (as on 31.1.70) of 39 as against the
sanctioned strength of 64. The State of Madhya Pradesh has no stipendiary
probation officer. Roughly speaking there are about 379 probation
officers with a total case load of about 50,000.74 It is advocated that
this machinery be used and exploited for successful implementation of
probation law, at least, for the young offenders below the age of twenty-one
years, whose number is estimated around three lakhs a year. In view of
the above, the in-custody arrangements for probation supervision seem to
be disproportionate. In contrast, the in-custody arrangements in penal
institutions, like jails, are far too superior. Structurally and functionally the
jail network in the country is in a better position to carry out sentence
orders of the judiciary.
Implementation of the probation programme as a workable alternative
to prison has to depend foremost on the probation officer. The stance on
individualising the punishment so as to appropriately fit the personality,
antecedents and character of the offender endow, upon the probation
officer, an onerous duty and a heavy responsibility to attain training and
temperament commensurate to the challenging task. Training helps the
probation officer to develop his skill and confidence in dealing with difficult
problems of human relationships. The humanity and insight which come
from experiencing the same feelings, the same passions as anyone else, are
among the most fundamental of the qualities needed for work in this field.
An issue has been raised frequently, i.e., whether the probation work is
a social work practice which requires the professional training offered by the
social work schools or a specialised occupation of correctional work
which assigns the officer the role of a counsellor in the set-up of the
administration of criminal justice. Whatever be the controversy on this
score, it may be agreed that the primary national concern in this area ought
to be the development of competent personnel to staff the probation services.
Notwithstanding the differences in approach and details of educating, the
probation staff may find itself congruently placed with the view that :
Any meaningful discussion of professional education for correc

tions cannot be in terms of the promotion of a single level or
timing sequence. Rather, it is desirable that we think in terms
73. Crime in India 1 (Government of India pub., 1969),

74. See Table I, supra.

of a continuum of learning opportunities to prepare the indivi

duals to meet the needs of the field.75
Pre-sentence investigation
The implementation of probation laws as a part of penal policy and

programme, has to be conditioned by the fact that the substitution of
punitive treatment by a non-punitive one, does not operate in void. Broadly
speaking, this would warrant to take into account the arrangements fabri
cated for the meaningful application of probation under the charge of a
professionalised probation officer. As discussed above, both the factors
are not up to the mark so as to push the probation policy in an indiscri
minate way. Besides this, the object and purpose of probation laws can be
evaluated through the work put up by the probation officers in the discharge
of their two main functions, viz., the pre-sentence investigation, report
and supervision of the probationer.
It has been appositely remarked that :
The primary objective of the presentence report is to focus light

on the character and personality of the defendant, to offer insight
into his problems and needs, to help understand the world in
which he lives, to learn about his relationships with people, and
to discover those salient factors that underlie his specific offense
and his conduct in general. It is not the purpose of the report
to demonstrate the guilt or the innocence of the defendant.7*
The preparation of a pre-sentence report by the probation officer,

investigating relevant information, is an essential requisite for the application
of probation measures. The pre-sentence report performs many functions.
It aids the court in determining whether the case is appropriate for proba
tion or for imposing the sentence.77 The pre-sentence investigation report
is to be used by the prison institutions to classify and treat the prisoners
75. Newmaru^fefrTce Book OM-Erobation, Parole and Pardons 84 (3rd ed. 1968).
76. The Presentence Investigation Report" Administrative Office, United States
Courts, see supra note 50 at 69.
77. R. 32(c) of the Federal Rules of Criminal Procedure (U.S.A.) reads:
(1) The probation service of the court shall make a presentence investigation and
report to the court before the imposition of sentence or the granting of pro
bation unless the court otherwise directs
(2) * The report of the presentence investigation shall contain any prior criminal
record of the defendant and such information about his characteristics, his
financial condition and the circumstances affecting his behavior as may be
helpful in imposing sentence or in granting probation or in the correctional
treatment of the defendant, and such other information as may be required
by the Court.

1974] PROBATION-THE LAW AND PRACTICE IN INDIA 1%
and also to plan their releases. The report also furnishes the parole board
with relevant information while considering cases for parole. The proba
tion officer can make use of the report in the rehabilitation of the offender
and also during the probation and parole supervision. These reports
also serve as a useful source for systematic researches in the field of
corrections.
The Probation of Offenders Act does not seem to emphasise the
necessity of having a pre-sentence report in all the cases. Under section
4(2) of the Act, while releasing an offender on probation of good conduct,
the court does consider such report, if there be any.78 But, the law does
not compulscrily require the probation officer to obtain information and
collect the same for perusal of the court until and unless directed by the
court itself. However, under section 6(2) of the Act, while sentencing a
person below twenty-one years of age, the court has to call and consider
the report.79 Not much guidance can be had from the state laws and the
rules in this regard.
A probation officer ha»to collect information regarding the offence
committed by the offender at the investigatory stage. He has to inquire
into the antecedents of the probationer without making himself identifiable
distinctively as an official.
In the wake of varied duties, a probation officer has primarily to
concern himself with the preparation of the pre-sentence report. After
making discreet inquiries regarding the offender's character and antecedents,
his social and environmental conditions, his financial and other circums
tances in which the alleged offence was committed and any other fact which
the court has directed him to enquire into, the officer has to put down the
relevant information with full facts into the report.80 Thus, the case includes
an objective statement of the facts along with the probation officer's assess
ment of the case. This enables the court to determine the most suitable
method of dealing with the offender after he is found guilty.
It has been observed that the pre-sentence reports are presented to
court by the probation officer more as a perfunctory practice rather than as
a legislative mandate. The value and significance of the pre-sentence report
gets diluted, if we objectively view the magnitude of the work done by
78. The words used in s. 4(2) are;
Before making any order under sub-section (1), the Court shall take into conside
ration the report, if any, of the probation officer concerned in relation to the
case.
Further, under section 14(1), the probation officer has to inquire into the circum
stances or home surroundings of the accused with a view to assisting the court in deter
mining the most suitable method of dealing with him.
79. See Explanation 2(1) of s. 6 of the Probation of Offenders Act.
80. See also r. 15 of the A.P. Probation of Offenders Rules, 1963, r. 16 of the
Assam Probation of Offenders Rules, 1962, r. 17 of the Bihar Probation of Offenders
Rules, 1959, r. 17 of the Maharashtra Probation of Offenders Rules, 1966, r. 14(1) of the
Orissa Probation of Offenders Rules, 1962, r. 14 of the Punjab Probation of Offender*
Rules, 1962 and r. 16 of the Rajasthan Probation of Offenders Rules, 1962.

14 JOURNAL OP THE INDIAN LAW INSTITUTE [Vol. 16 : 1
probation officers all over the country. This has been indicated below in
Table II.
TABLE II
Pre-sentence investigation (1965-70)
1965-66 1966-67 1967-68 1968-69 1969-70
1. Andhra Pradesh 5431 3113 3536 3731 3536

2. Gujarat 1543 1632 2096 2030 2449
3. Haryana 54 233 145 74 34
4. Kerala 1856 1964 2074 2268 2336
5. Maharashtra 1672 2503 2402 2940 2476
6. Mysore 1381 1394 1274 1129 1209
7. Orissa 362 512 389 394 416
8. Punjab 327 346 397 307 281
9. Rajasthan 533 205 188 227 306
10. Tamil Nadu 4462 4749 5324 20651 —
11. Uttar Pradesh 1365 1170 1257 1557 1574
The intricacies of the work involved in careful investigation of the

physical, moral, social and other conditions of the offender coupled with
the fact that only skeletal resources and man-power are available, would
make one doubt seriously about the authenticity of the figures reported
above. If these are true then one may have valid reason to doubt the
utility and the correctness of the information obtained by way of pre
sentence investigation. This makes the probation measure an illusory
substitute for punitive treatment of the offender.
Supervisory role of the probation officer

Further, when a person is adjudged as guilty and is deemed suitable
for being kept on probation under the supervision of a probation officer,
the supervisory role of the probation officer commences. The rules of the
different states in India provide certain guidelines in this respect. Typically,
the Andhra Pradesh rules are illustrative of the supervisory role and duties
of the probation officer. Rule 20 runs thus :
(1) The probation officer shall act as a friend and guide of the proba
tioner. For the purpose, he shall, subject to any provision of
the supervision order, require the probationer to report to him at

stated intervals, meet him frequently and keep in close touch with
him.
(2) At the first meeting the probation officer shall —
(a) explain to the probationer the conditions of the supervision
order;
(b) advise him as to how he should conduct himself; and
(c) specify the days on which he should report to the officer, the
time and place of reporting being so arranged as to avoid
unnecessary hardship to the probationer and to secure proper
privacy, and inform the probationer that any omission on
his part in so reporting will have to be satisfactorily accoun
ted for.
(3) The probation officer shall visit the probationer periodically in
his home surrounding and, where appropriate, his occupational
environment, in order to see the progress made by the proba
tioner and the difficulties, if any, encountered by him :
Provided that in the case of a young offender attending school or
college, the probation officer shall not visit the probationer in the
institution, but may make discreet enquiries of the teacher or
tutor or head of the institution regarding his attendance, conduct
and progress, without prejudicing the probationer's interest in
any way.
(4) The frequency of the meetings, including visits by the probation
officer, should depend upon the conduct and mode of life of the
probationer and the progress he is making. But the number of
meetings should be, unless the court directs otherwise, not less
than :—
(a) Once in a week, during the first month ;
(/;) Once in a fortnight, during the remaining period of
probation, in the case of probationers below 16 years of
age ; and
(c) Once in a month during the remaining period, in the case of
others.
(5) The probation officer shall endeavour, by example, advise, per
suasion and assistance and, where necessary, by warning, to
ensure that (a) the probationer does not violate the conditions of
the supervision order or commit any further offence and behaves
in conformity with law; and (b) his behaviour, attitude to society,
habits, character and moral improve, so that he may not revert
to crime.
(6) The probation officer shall also take such action as he deems
necessary for better regulation of the conduct and mode of life
of the probationer or for closer supervision over him.
(7) The probation officer shall also advice and help the probationer
in attending hospitals, psychiatric clinics, occupational training

76 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.16: 1
centres and other similar institutions if and when necessary for

the improvement of the probationer's prospects.
The magnitude of the supervisory work is well set out under the
rules, and the achievement of the probation officers in this country in this
respect are contained herein below :
TABLE HI
Supervision cases (1960-65)
1960-61 1961-62 1962-63 1963-64 1964-65
Andhra Pradesh 3161 3071 3179 3529 3430
Gujarat 320 316 302 296 326
Haryana 56 355 379 333 741
Kerala 931 1051 1049 812 800
Maharashtra 326 340 163 219 382
Mysore 96 190 226 186 152
Rajasthan 1020 875 621 435 363
Tamil Nadu 22047 24724 26223 5831 —
Uttar Pradesh 3449 3343 2935 2352 2135
The data collected on the supervisory role of the probation officers of

several states, thus, speaks of the heavy burden placed upon them and
assumably discharged by them. Doubts continue to linger about the desired
and efficacious results having been actually achieved. It is again because of
the fact that these heavy and diverse responsibilities are placed upon a
handful of probation officers. Besides, the general figures noted above, the
working of the probation laws in a state can also be seen. For the State of
Punjab the available figures speak that about a dozen probation officers in
the state had the following work-load during the period 1963-70.
TABLE IV
Year Social investigation Cases dealt with Cases dealt with

reports submit- under section under section 4
ted to judicial 4(1) (3) of the (/) of the P.O.
courts P.O. Act, 1958 Act, 1958
1963 330 182 295

1964 306 280 707
1965 183 181 976
1966 327 202 813
1967 346 290 1202
196.8 397 484 2026
1969 307 676 2098
1970 281 692 2483

A similar position obtains in other states too. The existing machinery

and working of the probation service discloses dismal pessimism for being
an effective substitute for penal institutions. It would engineer more problems
if the probation set-up is not expanded, mobilised and geared up in increasing
proportions, while the campaign for the exercise of court's discretion to
grant probation is stepped up. The resultant effect would not only be visible
in the upward increase in the number of offences and offenders, but it
would inhibit the implementation of probation measures, and will rob the
probation of its concept and purpose.
Duties in relation to courts

Apart from these supervisory functions, the probation officer has also
certain duties in relation to courts. He may move the court before which
the probationer is bound, to vary the conditions of the bond by way of
lightening or relaxing them, as may be required by the conduct of the pro
bationer.81 And if the probation officer considers that the probationer has
made sufficient progress and further supervision is not necessary, he shall
make an application to the court for discharging the bond under sub-section
(3) of section 8 of the Act. If a probationer fails to observe any of the con
ditions of the bond or behaves in a manner indicating that he is not likely
to fulfil the purpose of the supervision order, the probation officer shall
report the fact to the court or to the authority concerned.
The probation officer shall also assist the rehabilitation of the proba
tioner in society, so that he does not revert to crime. For this purpose
he shall endeavour to secure for the probationer (a) training facilities,
(b) employment opportunities, (c) necessary financial aid, and (d) contacts
and association with normal individuals and congenial organisations
like the Boy Scouts and Girl Guides, youth organisations and community.
projects.82
The probation officer has also to keep in touch with discharged
probationers to follow up the progress made by them towards their
rehabilitation, for the period specified by the authorities, and participate
whenever possible in the schemes and organisations intended for the
after care and rehabilitation of the probationers.
A probation officer is further entrusted with a variety of duties
specified in the rules of different states which also include :83
(1) educating the public and mobilising support for the probation
system ;
(2) mobilising public assistance and co-operation in the field of
social defence ;
(3) being in charge of probation homes that may be assigned to his
charge ; and
81. See also ss. 5, 6 and 8 of the Criminal Justice Act, 1948.
82. R. 19, the Tamil Nadu Probation of Offenders Rules, 1962.
83. See r. 24. the A.P. Probation of Offenders Rules. 1963.

(4) any other duties incidental thereto which may be assigned by

order of the State Government.
The stupendous task of the probation officer endows upon him the
role of an agent mediator between the accused and the court as well as
society. However, the actualities do not permit the probation officer to
play his role effectively. A handful of probation workers are confronted
with the voluminous task of making pre-sentence investigations, as well as
supervising the probationers placed under their custody.
It is being recognised that there are several limitations as regards the
successful implementation of the probation programme in India. It is
stated that :
One of the likely reasons for inadequate use of probation provi

sions is the small number of probation officers, their low status
and inadequate academic and professional background. The
States have given a low priority to correctional programme and
adequate budgets to develop this programme arc not pro\ided.
There is one probation officer for every district in several States
though there are exceptions....The educational background and
professional equipment of the probation officers have also got to
be raised and specific training provided. The judiciary, who
have been given the discretion to use probation instead of
imprisonment, have also got to be oriented to the new tasks and
techniques of correction.84
In the wake of inadequate arrangements for implementing the concept

of probation, it remains a moot question as to whether the judiciary has to
be oriented to new tasks and techniques of corrections. Equity in criminal
law, which is implicit in the probation system, is not an alien concept for the
Indian judiciary, and it would not require to make much efforts to fabricate a
legal concept of probation attuned to the needs of the social order in conson
ance with the changing penal theory of reform of the offender. The cam
paigners for probation, therefcre, ought to launch a propaganda for a
comprehensive probation service in the states before they can think of
prevailing upon the judiciary to use their discretion in favour cf probation
against imprisonment.
VII. Courts and probation—judicial approbation of probation
A prognosis of the statutorily propagated concept of probation has

already been made. It may be worthwhile to assess the judicial reaction
towards this measure. The former Chief Justice of India, S.M. Sikri,
relied on the statement of objects and reasons to spell out his feeling as to:
84. The statement presented by the Government of India before the Fourth
U.N. Congress on Prevention of Crime and Treatment of Offenders (Kyoto, Japan).

"who can say that these are not laudable objects", and stated further :
The law seems adequate. But is it enough to pass a law and say
that probation is a good thing....Unfortunately at present, very
little serious attention is paid to this aspect by the Judiciary and
the Bar. As a matter of fact I was shocked to see that in a
number of cases, which came to the Supreme Court recently,
even the existence of the local Probation of Offenders Act was
not known, or easily ascertainable. No reference to the
relevant Probation Act was made in the court below but the
point was for the first time taken in the grounds for special
leave to appeal to Supreme Court. 85
The assertion that the existing law on probation is adequate is debat
able. But the Chief Justice rightly expressed his shock at the ignorance
with which the Bar and the judiciary suffered in matters concerning the laws
of probation in the country. If the Bar and the judiciary had shown greater
interest, it could have been easily possible to bring to the notice of legislators
that what is being masqueraded as probation is not what the probation
ought to be or lias been recognised to be. The proper application and use
of probation would also make the executhe see that budgetary provisions
are not to be earmarked for prison administration alone, but they need to
be diverted for the probation service too.
Mention may be made at this place of the interest taken by the
Central Advisory Board of Correctional Services and the Central Bureau of
Correctional Services who publicised the concept of probation by observing
the year 1971 as probati ^n year, and successfully influenced the highest level
of policy making to reckon with the march of penological progress in the
administration of justice.86
85. Inauguial add)ess by Chief Justice S.M. Sikri on the Probation Year, VII
Social Defence 7 (197J),
86. Siddharlha Shankar Ray, the then Union Minister for Education and Social
Welfare, has addressed letters to the Hon'ble Chief Justices and chief ministers of all the
states seeking their co-operation in making the Probation Year a success. The letters
addressed to the chief ministers, lay emphasis on the implementation of the recommen
dations of the Central Buicau of Correctional Services and sought the assistance of all the
agencies at state level to subscribe to the success of progressive correctional policy of:
(1) Implementation of Children Act to cover all the districts with necessary
services;
(2) Implementation of Probation of Offenders Act, 1958 with services of proba-
bation officers covering every district, with the objective of covering all the
criminal courts in the next three years;
(3) Appointment of the State Advisory Board on Correctional services to co
ordinate the programme among all the agencies;
(4) Inviting the judiciary at the senior level to initiate new thinking among the
subordinate judiciary about the problems arising out of imprisonment of
young offenders;
(5) Modernising the approach in prisons by introducing progressive policies such
as classification of offenders and the separation of juveniles from adults;
(6) Follow-up of the recommendations, in general, of the All India Seminar on
Correctional Services held in 1969 and the two meetings of the Central
Advisory Board on Correctional Services held in 1970 [VII Social Defence
16-18 (1971)].

80 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16; 1
The judicial response towards probation has been known through

judicial decisions, whenever the applicability of provisions of the Act
had been before the court. In Ramji Missar v. State of Bihar*1 the
Supreme Court discovered that the Act discloses a newer theme in the
scheme of punishment, and it proffers the court an option in the matter of
sentencing. Ayyangar, J., observed that:
The object of the Act is to prevent the turning of youthful
offenders into criminals by their association with hardened
criminals of mature age within the walls of a prison. The
method adopted is to attempt their possible reformation instead
of inflicting on them the normal punishment for their crime.88
Later in Rattan LaTss9 case, Subbarao, J., hailed the Act as :
[A] milestone in the progress of the modern liberal trend of
reform in the field of penology. It is the result of the recogni
tion of the doctrine that the object of criminal law is more to
reform the individual offender than to punish him.90
The echo of the above observations is to be found in the subsequent
decisions of the Supreme Court.91 It tends to establish that the judicial
mind has reacted favourably to the probation concept as propagated
through the Probation of Offenders Act, 1958. However, observations of
the learned judges of the Supreme Court envisage probation as a method
of reformation.
An exaggerated sense of enthusiasm seems to have induced the
learned judges to wean out the measure of probation from the schematic
concept of punishment. The judicial dicta of the Supreme Court have
invariably been endorsing the view that it is an "attempt (of) their
possible reformation instead of inflicting on them (the offenders) the normal
punishment for their crime"92 or as Subbarao, J., put it "it is the result of
the recognition of the doctrine that the object of criminal law is more to
reform the individual offender than to punish him."93 It is a misguided
myth to hold probation synonymously with the reform. The over
enthusiasm for reform superadded with an exaggerated sense of humanism
can turn the newer penological action into a mixed bag of jumbled ideas.
Doubts still remain to be dispelled on the question whether the state
has a right or an obligation to attempt the prisoners' reformation. Nigel
87. A.I.R. 1963 S.C. 1088.

88. Id. at 1091.
89. Rattan Lai v. State of Punjab, A.I.R. 1965 S.C. 444.
90. Id. at 445.
91. Abdul Qayum v. State of Bihar, A.I.R. 1972 S.C. 214; Mar Das v. State Oj
Punjab, A.I.R. 1972 S.C. 1295; Satyabhan Kishore v. The State of Bihar, A.I.R. 1972 S.C.
1554.
92. Supra note 87 at 1091.
93. Supra note 89 at 445.

Walker has noted the objections raised against the right of the state to
reform prisoners.94 As recently as 1954, C.S. Lewis argued that to be
"cured against one's will...is to be put on a level with those who have not
yet reached the age of reason".95 Such dissensions, therefore, do not
permit to extend unreserved recognition to the doctrine that the state has
a right to reform the offender. The thought remains in a state of flux
which cautions against any haste in importing the doctrine of simple and
pure reform of the offender in the Indian jurisprudence so liberally, that
arrangements set in the theory and practice of criminal judicial administra
tion are disturbed altogether.
In terms of juridical thinking it would not be correct to consider
probation as a reform which the state can administer to an individual as a
matter of authority. The state is well within its powers to impose sanction
against the individual even though the sanction be not coercive but
corrective. It is this concept of probation that is significant in the realm
of criminal judicial administration. The concept of probation has grown
in two different disciplines and at different points of time. Probation,
synonymously understood as reform, has largely grown out of the thinking
in social disciplines. The legal concept of probation had been known in
the annals of history and was brought into the folds of criminal law as an
equitable formula. However, there does not seem to be a continued
development of the legal concept which consequently led to the develop
ment of the present day concept of probation. Whatever legalistic form and
temper is imported in the modern concept is, in fact, an attempt to fit
the non-legal institution of probation, primarily loaded with executive
techniques, with the formalism of legality so as to make it workable within
the legal system. The effect of such an approach sometimes yields
anamolous results. As Paul Tappan points out:
[T]he special danger, one that is particularly acute in dealing
with the delinquent through the executive approach, arises from
its paternalistic character.96
The utter benevolence of parental nature implicit in the working
of probation is capable of showing gross irreverence to the constitutional
and legal rights of the probationer to a degree that they are likely to be
wiped out.97
94. "In 1895 the Chairman of the Prison Commission and his supporters tried to
convince the Gladstone Committee that the State had neither the right nor the obligation
to attempt the prisoner's reformation." Nigel Walker, Crime and Punishment in Britain
134 (1965).
95. Ibid.
96. Paul W. Tappan, Juvenile Delinquency 319 (1949)
97. The working of probation system has the undertone of eroding the right
of the accused to remain silent and his privilege to be represented by counsel in a criminal
proceeding. It is in this context that s. 3(5) of the Criminal Justice Act, 1948 in U.K. is
noteworthy. This provision requires that to the offenders above 14 years of age the order
will be applicable only on expressing willingness to comply with the requirements of
the probation order.

Too much emphasis on the showering of benevolence on an individual

law-breaker without visualising the consequential effects on the interests of
the total members of society also sets an imbalance. And, if an institution
alised concept generally meant for the good of society evolves out in a
manner that, instead of balancing and harmonising the divergent interests,
it begins to create lop-sidedness, then it loses its purpose and significance.
A juridical concept of probation can afford basis for the functional
structure of the modern concept of probation, which, it is submitted,
is not the case with the Indian law of probation today. The legisla
tive efforts should have been guided by such thinking rather than
by unrelated factors. Keener sympathy towards the offenders cannot
be to such a degree that it creates apathy towards the public which
is also "entitled to be protected against people who consciously and
deliberately ignore the rules framed for the protection of society,"98 To
a limited extent the irrational equilibrium set by the legislative policy has
a chance to be cured through judicial mechanism. Some guidelines can be
obtained in the annals of legal history so as to enable the probation concept
serve as a meaningful mode of punishment.
The judicial approbation for the law relating to probation has already
been noticed. No wonder that the cases of offenders for probation which
came before the Supreme Court proceeded on the euphoric assumption
that probation is a panacea for the anachronistic ills with which Indian
penology has been suffering. The exuberated enthusiasm for probation
can evidently be seen in Rattan LaVs case99 which has become the lodestar
for disposition of cases seeking application of the Probation of Offenders
Act, 1958. In the instant case, Subbarao, J., who premised that "the Act
is a milestone in the progress of the modern liberal trend of reform in the
field of penology",100 also carried his enthusiasm forward by extending
the application of the law of probation retrospectively to a district to which
the operation of the Act had not been extended through notification. The
court was of the view that the probation provision in the Act can validly
be applied retrospectively because it is a "provision...made to help the
reformation of an accused through the agency of the court."101 This
observation of the court, however, does not take into account the fact that
the "reform" of the offender has to be sought through an arrangement,
wherein the probation institutions and officers are to be found present,
which alone is the executive responsibility. After having provided arrange
ments for probation, the executive seeks to extend the application of the
98. Per Dua, J., in Lekh Raj v. State, A.I.R. 1960 Punj. 482 at 483.
99. Supra note 89.
100. Id. at 445.
101. Id. at 447.
Though with a different approach to the problem, Lotika Sarkar and R.V. Kelkar
are also of the view that the majority decision in Rattan LaVs case "may give rise to some
practical difficulties in the working of this benevolent legislation." See Sarkar and Kelkar,
Criminal Law, 1 A,SJ I, 82 (1965)

Act through notification. In this case, the court did not realise that the
absence of notification meant absence of probation service in the district.
It did not also show concern as to how a probation order will be effected
after the order has been passed. The concern seems to be to follow the
legislative injunction without being conscious of the impact that may follow
as a result of implementing the measure only half way.
Recently, three more cases have been decided by the Supreme
Court.102 It is likely that the whipping up of the campaign for probation
and the vistas opened up by the Supreme Court may bring in many more
cases before the courts for pleading for the probation. The courts have,
therefore, to set out a pattern and policy with a view to shaping a definite
concept of probation in the scheme of punishment. It is not conducive to
the interest of the entire administration of criminal law and justice, if the
judicial decisions lay an over-emphasis on the legislative injunction on
probation without taking cognizance of the arrangements that the executive
is to furnish for implementation of the injunction. Besides the above, the
judicial policy must be expressive to indicate as to whether the role of the
court, as an agency of reform, is to be placed supremely or somewhat
lowly.
The recent decisions of the Supreme Court do not spell out much that
may be of help in discerning the trend towards which probation, as pre
scribed by the Act, is moving. So far the judicial attitude has been one of
optimism. This optimism has not led the courts to compute the legislative
purpose with the actualities of the probation administration.
In Abdul Qayum v. State of Bihar™ the appellant had been sentenc
ed to six months' rigorous imprisonment for having picked the pocket of
one Jagdish who later associated himself with the appellant in the trial
court for getting the case compounded. The request was not granted.
The trial court had also asked for the report of the probation officer, who
recommended probation for the appellant. The trial court rejected the
same because the court felt that:
Incidents of pick-pocketing are very rampant in this subdivision

and it was just a stray chance that accused Qayum was caught
in this case. Having regard to these facts and the nature of the
offence and the circumstances in which accused Qayum was
caught, he does not deserve the benefit of Section 4 of the
Act.104
On appeal the High Court did not alter the result of the case. The
petitioner then sought to approach the Supreme Court. The Supreme
Court being under the influence of the ''reforming" legislation allowed the
102. See supra note 91.

103. Supra note 91.
104. Id. at 215,

84 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 16 : 1
appeal after having upset the finding of facts as determined by the two
courts below.
Generally, it is not the practice of the Supreme Court to take up the
task of fact-finding on appeal because it is not a third court of fact to
re-weigh the evidence which has impressed the courts below.105 It is only
under extraordinary circumstances that the Supreme Court exercises power
to interfere with the concurrent finding of fact.106 In Abdul Qayum*s case
there was no other extraordinary circumstance except, perhaps, that
punishment of six months' imprisonment awarded to Abdul Qayum, "who
was caught as a stray chance amidst the very rampant incidents of pick
pocketing in that area," was not commensurate with the persuasive
propulsion of "reform" theory of probation of the highest court.
Likewise, in Satyabhan Kishore v. The State of Bihar,107 the Supreme
Court once again endorsed Rattan LaVs decision to make available the
benefit of probation law to two young student offenders for having com
mitted house trespass and caused simple hurt to a superintendent of
university examination, who in discharge of his duties was preventing the
use of unfair means in the examination. The circumstances for invoca
tion of supreme judicial power in the instant case for getting the benefit of
probation to the young offenders were different from those existing in Abdul
Qayutris case,108 In the instant case the appellate criminal jurisdiction of
the Supreme Court did not require the court to go far enough to abide
by the principles laid down by it in the matter of criminal appeal by special
leave. The two courts below had differed with each other in the assess
ment of the guilt and furthermore, the appellant had been granted leave
to appeal to the limited question as to the applicability of the probation
law to conviction and sentence of the offenders who were below the age of
twenty-one years.
The critical evaluation of the foregoing decisions is not meant to
offer a suggestion that probation measure is not meant for prescription to
young offenders for rampant anti-social acts of theft, hurt and the like.
Any inference with regard to the canvassing of retributive or deterrent
theory of punishment in such cases is emphatically denied. On the con
trary it is reiterated that:
Ordinarily the use of probation is meant to be understood for

offenders who are convicted for crimes which are generally
understood to be in the nature of mala in se}m
105. Pritam Singh v. The State, A.I.R. 1950 S.C. 169; Mulk Raj v. State of U.P..
A.I.R. 1959 S.C. 902.
106. Ram Narain v. State of Punjab, A.I.R. 1955 S.C. 322; Inder Singh v. State of
Pepsu, A.I.R. 1955 S.C. 439; Kunjilal v. State of M.P., (1955) 1 S.C.R. 872.
107. Supra note 91.
108. Supra note 91.
109. D.C. Pande and V. Bagga, Criminal Law, V ASJJL. 476 at 512-13 (1970).

19741 PROBATION—THE LAW AND PRACTICE IN INDIA 85
However, a protest for the use and application of the probation

system to offenders who violate the law for economic gains by engaging
in unethical business malpractices is tenable because :
As a society becomes larger and develops into advanced indus
trial structures with large business and commercial interests, it
can expect to confront more organised crime....Crime will have
learnt to permeate business at all levels, to find legality for many
antisocial practices and to influence not only the administra
tion, but perhaps even the lawmaker themselves."110
• In Mar Das v. State of Punjab111 the appellant was ordered to
furnish a bond under section 4 of the Probation of Offenders Act, 1958
by the trial court for convictions under sections 7(1) and 16(1) (a) of the
Prevention of Food Adulteration Act, 1954. ^ The action would have
escaped notice but for the inspection of Bedi, J., of the Punjab and Haryana
High Court who took the view that an improper order had been passed in
the case, and directed that a notice be issued to the appellant. It was also
noticed that a minimum sentence of imprisonment for a period of six
months and a fine of Rs. 1000 had been prescribed by the Prevention of
Food Adulteration Act. Consequently, the High Court changed the order
of probation to the one awarding the prescribed punishment.
The appellant had been convicted for selling adulterated ice-cream
after the food analysis result had been obtained and also after he had
pleaded guilty to the charge. The Supreme Court while deciding the appeal,
not only took notice of the fact that "adulteration of food is a menace
to public health",112 but it was also of the opinion that the beneficient
measure which "reflects and incorporates the modern approach and latest
trend in penology"113 is also to be advantageously made available to those
young offenders who commit the "welfare'* offences realising it fully well
that their sin is a profitable trade.
In the recent case of Ram Prakash v. State of H.P.1U where the
question of releasing an offender on probation, who was charged with the
offence of food adulteration under the Prevention of Food Adulteration
Act, 1954 was raised, the Supreme Court followed its previous decision in
the Mar Das case, but seemed to realise that;
Court should not lightly resort to the provisions of the Proba
tion Act in the case of persons above 21 years of age found guilty
of offences under the [Prevention of Food Adulteration] Act.115
110. Working paper on Social Defence Policies in Relation to Development
Planning (Fourth U.N. Congress) on the Prevention of Crime and Treatment of Offenders
(UN/A/Conf. 43/1/1970 at p. 17).
111. Supra note 91.
112. Ibid.
113. Ibid.
114. A.I.R. 1973 S.C. 780.
115. Id. at 782.

The extended coverage interpretatively given by the court to the pro

bation measure as enacted by the legislature seems to be at cross purposes
with the social policy. A recent study conducted by the Union Ministry of
Health found that the incidence and extensiveness of adulteration is so much
that about one-third of the food stuff consumed by Indians is adulterated.116
It has also been reported that according to a U.N. expert "every Indian
is obliged to eat something which is not only far from edible but positively
dangerous for his health."117
The peddlers of positive danger to food and health, are not the ones
who are stray innocent dealers and who might usefully be subjected to
probation treatment. Admittedly, "the gangs which carry on adulteration
of food are quite powerful and organised."118 The constituents of this
powerfully organised unit need at least weeding out one by one. The
grant of probation is hardly an antidote to check a recognised heinous
social crime. No organ of the government can permit itself to be gullibly
induced to let anti-social traders and manufacturers play ducks and drakes
with people's health. It would fully be in the propriety of things
that the probation system be not extended to cover offences of a type as
have found condonation through probation in the Ishar Das case.119 The
court should rather attempt formulation of a definitive judicial policy where
probation would be at par with social and legislative purposes. It has to
draw a line to exclude the wrongs listed as unfit for the application of pro
bation. The penal laws protecting consumers' interests provide the
minimum for such exclusions.
VIII. Concluding remarks

The foregoing discussion unfolds the urgency of redefining the legis
lative policy with regard to probation. This will need adopting of such
standards, as are used and recognised by other legal systems, where pro
bation has proved a success as an insurance against hazardous actions of
the wrongdoer, and also in terms of providing insurance to good social
risks against the deleterious effects of the prison. Early legislative action in
this direction would be conducive for proper growth and development of
the concept and the institution of probation.
This calls for a change in the legislation so that it should conform
to uniform principles. The non-punitive procedures of admonition,
binding over probation without supervision are spurious substitutes
for the probation. It would be more in accordance with the
concept of probation to make supervision of the offender mandatory.
Equally important is the need for creating a method or machinery
to enable the court to select appropriate cases for release on probation.
116. See The Amrita Bazar Patrika, 5-3-1972, p. 6, col. 2-3.

117. Ibid.
118. Ibid.
J19. Supra note 91.

The selection of cases would entail pre-sentence investigation about the

antecedents, character and social environment of the offender.
Probation without supervision is as unthinkable as imprisonment
without the jail institution. If probation has to be a replacement for
imprisonment, then a system which caters for probation supervision of
first offenders and young offenders is essentially needed. The budgetary
provisions of each state earmark sizeable amounts for the prisons and the
prison administration. It is also known that about 20 per cent of the offender
population consists of young and first offenders. The meagre amount pro
vided for the upkeep of probation service is, therefore, unable to meet the
challenge posed by one-fifth of the total offenders. The situation becomes
worse if all or majority of these young offenders are released on bond, or
after admonition, or on probation without supervision. No wonder that
such practices may expose the twin objectives of probation policy, reform
of the offender and the protection of society, to greater danger.
Budgetary diversion from the prison allocation to probation services can
be suggested as an immediate solution. This will enable the state to
find funds for enabling it to provide non-punitive though custodial
arrangements for probationers.
Other conditions which are demonstrably important, to make the
law and practice of probation a meaningful mode of social control, include
the need for expanding the network of probation services through an
increased number of better trained probation officers with an imaginative
approach to evolve new techniques of effective supervision. This would
necessarily call for control of case loads, and reduction on the point where
effective case work can be done by the probation officer.
In the existing scheme of law and practice of probation, the judicial
policy can orient itself towards achieving the social purpose rather than
contributing to the clamour of the vocal humanists by endearing the theme
of "reform of the offender". Enmeshed in between the inadequate
legislation and incomplete probation arrangements, the judicial application
of probation law needs greater caution till the legislature comprehends
the full import of the concept of probation, and the executive prepares
itself fully for implementation of the concept.

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PROBATION—THE LAW AND PRACTICE

♦Associate Research Professor, Indian Law Institute, New Delhi.

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the quantum or the quality of punishment; nor were reasons to be furnished

3. For a discussion of leading tendency in the development of judicial sentenc­

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We are of opinion that the salutary provisions of S. 562 of the

The metamorphosis that underwent the provisions of section 562 of

5. S. 562(1) of the Code of Criminal Procedure of 1898 reads:

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civilising influences might have on the mind of the individual

7. Report of Indian Jails Committee 32 (1919). The report also contained a

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subject.11 The interest was exhibited through passing of resolutions which

II. Utilisation aspects of probation

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III. Development of legal concept of probation

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[W]e now consider the benefit of clergy, or rather the benefit

22. Foster, Crown Law (2nd ed. 1791).

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powers of the probation perfunctorily and, thus, absolve itself of its

Other modes of individualisation

24. Ch. VIII, the Code of Criminal Procedure, 1898,

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well-known that compassionate verdicts of jurors so often defied the plain

Probation, like parole and imprisonment, has as its primary

31. A historical account of the idea of public participation and representation

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33. Report of the National Commission on Law, Observance and Enforcement

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twenty-one years of age) the benefit of probation or admonition cannot

[T]he Court by which the person is found guilty is of opinion

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three years, as the Court may direct, and in the meantime to

42. S. 4(1) of the Probation of Offenders Act, 1958.

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in no way corrective actions nor can these be understood to be reforma­

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VII. Probation service—an analysis of facts

With the passage of the Probation of Offenders Act, 1958, it is now

49. S. 4(3), t' e Probation of Offenders Act, 1958.

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as prescribed in the Act.52 Accordingly, we are concerned with the

Probation officer—a chief constituent

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The successful implementation of the probation system, thus, depends

56. There is no provision for the supervision of offenders released on probation

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A part time probation officer is required to" be a resident of tl e district

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fessional competence is also discernible/ 8 Likewise, the aspect of training

Obligations of the probation officer

It is essential to know as to what is expected of the personnel man­

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authorities to whom they are required to report, except in so far as it is

Probation services in India—1968

Name of the state Number Number Number Total num- Total

1. Anddhra Pradesh 20 49 , 5238 853

3. For a discussion of leading tendency in the development of judicial sentenc

in no way corrective actions nor can these be understood to be reforma

It is essential to know as to what is expected of the personnel man

Any meaningful discussion of professional education for correc

of a continuum of learning opportunities to prepare the indivi

One of the likely reasons for inadequate use of probation provi

The extended coverage interpretatively given by the court to the pro