SUBJECT:-PROBATION AND PAROLE

TOPIC:- Probation and Probation in sexual offences

SUBMITTED TO:- SUBMITTED BY:

Dr. Anant Prakash Narayan Gautam Kumar Ranjan

Assistant professor, Enrollment No.:-CUSB1613125018

School of Law & Governance, Programme:-B.A.LLB.(8thsemester)

CUSB, Panchanpur, Gaya. Session: - 2016-2021

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Contents
INTRODUCTION ......................................................................................................................................... 3
OBJECTIVES BEHIND PROBATION.......................................................................................................... 3
CASES WHERE OFFENDER ARE RELEASED ON PROBATION ............................................................. 4
OFFENCES IN WHICH PROBATION IS NOT GRANTED ......................................................................... 5
PROBATION IN SEXUAL OFFENCES ....................................................................................................... 7
CONCLUSION............................................................................................................................................ 10

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"If you are going to punish a man retributively, you must injure him. If you are to reform him, You
must improve him, And men are not improved by injuries”

-George Bernard Shaw

INTRODUCTION
Probation comes from Latin word “probate” which means “to test” or “to prove”. Probation
means to suspend the sentence of imprisonment on certain condition. “Probation is the
postponement of final judgment or sentence in a criminal case, giving the offender an
opportunity to improve his conduct and to readjust himself to the community, often on condition
imposed by the court and under the guidance and supervision of an officer for the court”. The
release into the community of a defendant who has been found guilty of a crime, typically under
certain conditions, such as paying a fine, doing community service or attending a drug treatment
program. Violation of the conditions can result in incarceration. In the employment context,
probation refers to the trial period some new employees go through.

Usually offenders of first crime, young mean under 21 years of age are released on probation.
However, mostly a person arrested for capital punishment, under TADA and for an offence like
adulteration of food, the probation is not granted. Person released on probation has to execute a
bond that within a period of three years, he will not commit the same kind of offence again. If he
breaks the condition he will get the punishment of his first offence also.1

OBJECTIVES BEHIND PROBATION

“Probation is a method of penal non- institutional treatment of offenders, developed as an
alternative to imprisonment out of a realization that short – term sentences, specially in case of
juvenile and youthful offenders, were not only ineffective, but also harmful, as these brought the
young offenders in contact with the confirmed criminals in prisons and most of all, removed their
fear of the unknown, viz, prisons. Probation is one more step in the progressive realization that
the sentence should fit the offender and not the offence.”

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https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/216903/8/08_chapter%202.pdf

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“The sole intention of the legislature in passing probation laws is to give persons of a particular
type a chance of reformation which they would not get if sent to prisons.”

“The traditional concept of crime and punishment has been radically changed in the twentieth
century. The focus has now shifted from the crime to the criminal. Probation has more important
social virtue in that it [prevents a severance of domestic and family ties and the stigma invariably
associated with imprisonment. In sentencing the focus is now on social justice and human rights.
Probation system is a technique of individualized treatment of offenders. “Probation came into
existence to some selected types of persons from the rigours of punishment even if found guilty
by a court of law. Jails Committee (1919 -20) observes that there seems to be no reasonable
doubt that the probation system represents a very substantial economy.

The Handbook for Courts on the Treatment of Offenders published by the Home Office, London
in 1969, narrated the object of probation as follows :-

“The object of probation, as of all methods of treatment is the ultimate re –establishment of the
offender in the community. But probation involves the discipline of submission by the offender,
while on liberty, to supervision by probation officer. It thus, seeks both to protect society and to
strengthen the probationer‟s resources so that he becomes a more responsible person. Unlike
custodial treatment, which by removing the offender from his family and community tends to
suspend his social and economic obligations to them? Probation exacts from him a contribution
within the limits of his capacity, to their well – being.”2

CASES WHERE OFFENDER ARE RELEASED ON PROBATION

Keshav Sitaram Sail V. State of Maharashtra3

In this case the accused was an employee of Railway. He was convicted of offence of abetment
of commission of theft of coal worth Rs.8 from 15 railway goods wagon. The learned Magistrate
acquitted the appellant. On Appeal High Court convicted the appellant under Sec. 379 read with
Sec. 109 I.P.C. and impose fine of Rs.500. Setting aside the decision of the High Court the

2
http://www.legalserviceindia.com/legal/article-453-the-probation-of-offenders-act-an-analysis.html
3
AIR 1983 SC 291)

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Supreme Court observed – “Having regard to the special circumstances of this case and the
character and antecedents of the appellant we are of the view that this was an eminently fit case
in which the High Court should have extended the benefit of either Sec. 360 Cr.. P.C. or
Sections. 3 and 4 of the Probation of Offenders Act to the appellant instead of imposing a
sentence of fine on him.”

Bore Gowda v/s State of Karnataka4

In this case the appellant was convicted under section 408 of the I.P.C. and his sentence has been
reduced to rigorous imprisonment for one month. He was secretary of cooperative society.
During audit report some irregularities had been detected on the basis of which he was
prosecuted. The case is filed for a small amount like Rs.1812 and below. In this case the
Supreme Court held that the benevolent provisions of the Probation of Offenders Act can be
extended to the appellant. Therefore ordered that the appellant instead of undergoing the
sentence be released on his executing a bond before the trial court for keeping peace and be of
good behavior for a period of 3 years. The bond shall be supported by two solvent sureties for a
sum of Rs.3000.

Basikesan v. State of Orissa5

It was considered that an offender of 20 years was found guilty of an offense punishable under
section 380 of IPC and no previous conviction was proved against him. The court held that the
offense committed by the accused was not out of deliberate preparation or design but it was a fit
case for application of section 3 and he was released after due admonition.

Daulat Ram v. State of Haryana6

it was held that the object of section 6 is to ensure that juvenile offenders are not sent to jail for
offences which are not so serious as to warrant imprisonment for life, with a view to prevent
them from contamination due to contact with hardened criminals of the jail. Therefore, the
provision should be liberally construed keeping in view the spirit embodied therein.

4
AIR 2000 - SCC - 10 - 260.
5
AIR 1967 Ori 4.
6
AIR 1972 SC 2434.

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OFFENCES IN WHICH PROBATION IS NOT GRANTED

In Ahmed vs. State of Rajasthan7

The court said that any person who has indulge in any certain criminal act resulting, in explosive
situation lending to communal tension cannot be given benefit under the probation of offender
act.

In State of Maharashtra v. Natverlal8

The Supreme Court declined to accord to the accused found guilty, the benefit of Probation of
Offenders Act because smuggling of gold not only affects public revenue and public economy,
but often escapes detection.

Smt. Devki v. State of Haryana9

It was held that the benefit of Section 4 would not be extended to the abominable culprit who
was found guilty of abducting a teenage girl and forced her to sexual submission with
commercial motive.

Bhagwan das vs. Inspecting Asst. Commissioner10

It was held that where the accused was convicted for the offender U/S. 276(cc) of Income Tax
Act, he cannot be released on probation.

7
AIR 1967 Raj 190.
8
AIR 1980 SC 593.
9
AIR 1979 SC 1948.
10
AIR 1956 P H 148.

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PROBATION IN SEXUAL OFFENCES
Ajahar Ali vs. State of West Bengal11

This case is related to outraging the modesty of women.

Appellant contended that since the incident occurred more than 18 years ago and at that time the
Appellant as well as the complainant were about 16 years of age, he should be given benefit
under the provisions of Probation of Offenders Act, 1958.

Held- Appellant had committed a heinous crime and with the social condition prevailing in the
society, the modesty of a woman has to be strongly guarded - Noting the conduct of the
Appellant instant case was not held to be appropriate for where benefit of the Act 1958 could be
given to the Appellant - Provisions of Section 354 IPC are to safeguard public morality and
decent behaviour and if any person uses criminal force upon any woman with the intention or
knowledge that the woman's modesty will be outraged, he is to be punished - In the instant case,
as the Appellant had been awarded only six months imprisonment, considering the matter, as
contended, under the Juvenile Justice Act, 2000 would not serve any purpose at such a belated
stage - As observed by High Court Appellant has already been dealt with very leniently and it
was a fit case for enhancement of sentence but considering the fact that the incident occurred
long back, the High Court refrained to do so - Appeal accordingly was dismissed .

State of Rajasthan vs. Sri Chand12

Fact of the case-he facts of this case, as per the prosecution story, are that on 1.08.2002,
Gujarmal son of Sukkan Ram Lali, resident of Baseth, P.S. Kathumar, District Laxmangarh
(Rajasthan), submitted a written report at Police Station Kathumar stating therein that on
31.7.2002, at around 10 A.M., his daughter the prosecutrix, aged 12 years, had gone to the jungle
to graze buffaloes. Sri Chand son of Madan Lal Saini, whose house is in the jungle, approached
his daughter, the prosecutrix and told her that his sister was calling her. By luring her in this way,
Sri Chand took his daughter the prosecutrix to his house. No one was there in the house and Sri
Chand took his daughter the prosecutrix inside the room, closed the door from inside, forcibly
undressed her and made her to lie on the ground and started raping her forcibly. The prosecutrix

11
MANU/SC/1016/2013
12
MANU/SC/0589/2015

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cried upon which Sri Chand put some cloth in her mouth. Hearing her cries, Bihari Saini, who was
passing nearby, reached there and he witnessed the whole incident. Saroj wife of Prahlad also reached at
the site. Out of fear, accused Sri Chand fled away from the place of incident.

Held- Accused was not minor, rather he had committed offence against minor girl who was
helpless - Evidence showed that accused ran away only when prosecutrix screamed and eye
witness came - Accused had worse intentions towards prosecutrix - Offence was heinous in
nature and there was no reason for granting benefit of probation - Thus, Accused was not granted
benefit of Probation of Offenders Act, but his conviction was maintained under Section 354 of
Code.

State of Himachal Pradesh v. Dharam Pal13

In this High Court was dealing with probation of offenders in case of offence of attempt to
commit rape. The finding of this Court in the said judgment is relevant for all the offences
against the women, which is as follows:

„According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if
translated into the act leads to an assault on the most valuable possession of a woman i.e.
character, reputation, dignity and honour. In a traditional and conservative country like India,
any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act
(Probation of Offenders Act, 1958) is intended to reform the persons who can be reformed and
would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction Under
Section 4 (of the Probation of Offenders Act, 1958) is hedged with a condition about the nature
of the offence and the character of the offender.‟

In above case although this Court did not interfere with the benefit of probation granted by the
High Court due to peculiar facts of the case however it did not approve the reasoning given by
the High Court.

13
AIR (2004) 9 SCC 681

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Tilak raj vs. the state of Himachal Pradesh14

Facts-Appellant developed intimacy with prosecutrix about two years prior to the incident. He
allured her on the pretext of marriage. On 01.01.2010 prosecutrix alleged Appellant having
sexually and physically violated her at her home. On 02.01.2010, the prosecutrix decided to
approach the police station to register an FIR for rape, however Appellant allegedly threatened
her with death against making a complaint. Thus, he did not complain. Appellant promised
prosecutrix marriage, however, did not return. On 06.01.2010 prosecutrix complained for rape at
the police station. She also alleged sexual exploitation on the pretext of marriage. Considering
the evidence, trial court acquitted Appellant of all charges, giving him the benefit of doubt.
However, on prosecution's appeal, High Court partly allowed the same. While it upheld acquittal
by trial court for offence punishable under Section 376 IPC, it convicted him under Sections 417
and 506 IPC. Hence, the present appeal.

Held- Supreme Court upheld the decision of trial court and high court. Court further held,
Prosecutrix was an adult and mature lady aged around 40 years at the time of incident. She
admitted that she was in relationship with Appellant for two years prior to incident and he used
to stay overnight at her residence. Evidence as a whole including FIR, testimony of prosecutrix
and report prepared by medical practitioner clearly indicate that the story of prosecutrix
regarding sexual intercourse on false pretext of marrying her is concocted and not believable.
Sexual acts between Appellant and prosecutrix seem to be consensual in nature. Case set up by
prosecutrix seems to be highly unrealistic and unbelievable. le. Sexual acts between Appellant
and prosecutrix seem to be consensual in nature. Case set up by prosecutrix seems to be highly
unrealistic and unbelievable. And, there is no evidence against Appellant from which it can be
conclusively inferred that there was any fraudulent or dishonest inducement of the prosecutrix by
the Appellant to constitute an offence under Section 415 IPC. Prosecution has not proven
Appellant's guilt beyond all reasonable doubt under Sections 417 and 506 IPC.

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MANU/SC/0010/2016

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CONCLUSION
It can be concluded that, probation was introduced as an alternative to jail system. The primary
objective was to prevent the first time offender from the influence of hardcore or habitual
offender. The probation is granted according to the provisions of Cr.p.c & probation of offender
act. The probation is granted in case of petty offence like theft, simple hurt etc. after due to
admonition.

But in many cases probation is not even granted to the first time offender. These offences include
economic offence like tax evasion, offence against communal harmony, sexual offence, kidnap
& abduction. These offences are done after pre-planning so court not grant probation

In many leading case, court give rationale behind not granting probation in sexual offence like
rape is that, the offence of rape is a serious offence, as ultimately if translated into the act leads
to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and
honour. In a traditional and conservative country like India, any attempt to misbehave or sexually
assault a woman is one of the most depraved acts.

Resources
 http://www.legalserviceindia.com
 https://shodhganga.inflibnet.ac.in
 https://www.manupatrafast.com

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