Probation: A Study In The Indian Context - Probation of Offenders Act

The earlier penological approach held imprisonment, that is, custodial measures to be the only way to curb crime. But the modern penological approach has ushered in new forms of sentencing whereby the needs of the community are balanced with the best interests of the accused:
compensation, release on admonition, probation, imposition of fines, community service are few such techniques used. Through this paper, the advantages of probation are highlighted along with how it could be made more effective in India.

The term Probation is derived from the Latin word probare, which means to test or to prove. It is a treatment device, developed as a non-custodial alternative which is used by the magistracy where guilt is established but it is considered that imposing of a prison sentence would do no good. Imprisonment decreases his capacity to readjust to the normal society after the release and association with professional delinquents often has undesired effects.

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

Law of Probation In India

Section S.562 of the Code if Criminal Procedure, 1898, was the earliest provision to have dealt with probation. After amendment in 1974 it stands as S.360 of The Code of Criminal Procedure, 1974. It reads as follows:- When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment fro a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for 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.

S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation. The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus : S. 562 is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime, and to help even men of mature years who for the first time may have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation officers to be appointed who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused during the period of his probation. Both the Act and S.360 of the Code exclude the application of the Code where the Act is applied. The Code also gives way to state legislation wherever they have been enacted.

Section 4 of the Act provides for probation.
S.4 Power of Court to release certain offenders on probation of good conduct
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the 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 three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.

S. 6 of the same Act lays special onus on the judge to give reasons as to why probation is not awarded for a person below 21 years of age. The Court is also to call for a report from the probation officer before deciding to not grant probation.

The provision under the Code and the Act are similar, as they share a common intent, that, punishment ought not to be merely the prevention of offences but also the reformation of the offender. Punishment would indeed be a greater evil if its effect in a given case is likely to result in hardening the offender into repetition of the crime with the possibility of irreparable injury to the complainant instead of improving the offender.

Yet there are a few differences, which have been enumerated below. S.4 of Probation of Offenders Act S.360 of The Cr.P.C.

Any person may be released on probation, if he has not committed an offence punishable with death or imprisonment for life.(No distinction is made on ground of sex or age) Any person not under 21 years of age, if convicted of an offence punishable with imprisonment for not more than 7 years or when any person under 21 years of age or any woman is convicted of an offence not punishable with death or imprisonment for life may be released on probation. It is not necessary that the person must be a first offender. This section applies only when no previous conviction is proved against the offender.

Any magistrate may pass an order under this section. Magistrate of the third class or of the second class not specifically empowered by the state government had to submit the proceeding to Magistrates of the first class or Sub-Divisional magistrates. Supervision order may be passed directing that the offender shall remain under the supervision of a Probation Officer. No such provision.

Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years.
 

Procedure For Probation Service

S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that the judge would consider the report of the probation officer before deciding on whether to grant probation. S. 14 of the said Act lays down the duties of the Probation Officers.

The pre-sentence report of the Probation Officer is the fundamental document for the guidance of the Court whether to grant the benefit of probation to the accused or not. The object of the pre-sentence report is to appraise the court about the character of the offender, exhibit his surroundings and antecedents and throw light on the background which prompted him to commit the offence and give information about the offenders conduct in general and chances of his rehabilitation on being released on probation.

The judge may also pass a supervision order under section 4(3) of the Act, whereby the offender is placed under the supervision of a probation officer and certain conditions are imposed upon him. This is mostly in the form of regular visits to the supervising officer. Some of the conditions which must be followed have been laid down in S. 4(4). On the application of the probation officer such conditions may be varied- S. 8(2) and also the offender may be discharged- S. 8(3). If the offender fails to follow the conditions laid down by the Court, the original sentence against him may be revived S. 9.

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the report of a probation officer or a recognized voluntary organization to be considered before passing a sentence. The Magistrate appointed as a member of the Board constituted under this Act must know something of child psychology. The Board would pass orders against a juvenile. The Act provides for the setting up of Observation and Special Homes by the State Government where the juvenile could be placed. Here the rehabilitation and social integration of the child would take place. It also provides for an After care programme which would take care of the delinquent child after he has been discharged from these homes, based on the report of the Probation Officer. The Probation officers appointed under the probation of Offenders Act would also function under the Juvenile Justice (Care and Protection of Children) Act.

Probation in India is mostly dependent on the policies of the State rather than a uniform Central Policy. In Karnataka a State level Probation Advisory Committee has been constituted with High Court Judge as Chairman with official and non-officials as members. A District level Probation Advisory Committee has been constituted in each district consisting of the District and Sessions Judge as Chairman with official and non-officials as members. After Care Programmes have been set up to improve the lives of those released on probation.

The After Care Programme, in Kerala, is intended to rehabilitate released prisoners and probationers coming under the supervision of District Probation Officers. By utilizing this amount they can engage in small scale income generating activities. The amount of assistance is Rs.10,000/- per head. If the amount is insufficient for meeting the expenses this can be attached with some bank loan. Department of Juvenile Welfare and Correctional Services was set up in Andhra Pradesh in 1990. It gives the following probation services taking care of probationers released by the courts and ex-convicts, released juveniles, after-care work, counseling and guidance to reform themselves and not to revert to crime and for their rehabilitation through Govt. Welfare Agencies.

Benefits of Probation Service

It serves the needs of the probationer in the following manner: -
Probation keeps the offender away from the criminal world. Further, the fear of punishment in case of violation of probation law has a psychological effect on the offender. It deters him from law breaking during the period of probation. Thus probation indirectly prevents an offender from adopting a revengeful attitude towards the society. Moreover, sentencing an offender to a term of imprisonment caries with it a stigma, which makes his rehabilitation in society difficult. The release of the offender on probation saves him from stigmatization and thus prepares him for an upright living. The shame of going through a trial process would have sufficiently chastised him. According to the labeling theory, a stigmatizing label once applied, is very likely to cause further deviance or create the deviance. People tend to conform to the label even when they didn't set out that way.

Probation seeks to socialize the criminal, by training him to take up an earning activity and thus enables him to pick up those life-habits, which are necessary for a law-abiding member of the community. This inculcates a sense of self-sufficiency, self-control and self-confidence in him, which are undoubtedly the essential attributes of a free-life. The Probation Officer would guide the offender to rehabilitate himself and also try and wean him away from such criminal tendencies.

Before the implementation of probation law, the courts were often confronted with the problem of disposing of the cases of persons who were charged with neglect of their family. In such cases there was no alternative but to send them to prison, which was an unnecessary burden on the State exchequer. With the introduction of probation as a method of reformative justice, the courts can now admit such offenders to probation where they are handled by the competent probation officers who impress upon them the need to work industriously and avoid shirking their family responsibilities.

An analysis of crime statistics would show that a large segment of offenders consists of the poor, the illiterate and the unskilled. Such offenders are seen to be victimized twice: once, when they are denied of their basic human needs in open society and forced to live in a sub-culture of social marginality, and, again, when they are grinded in the mill of criminal justice for having infringed the law. Probation would thus be an effective means to deliver justice to them, they would not be incarcerated and also they would be trained which would improve their life later.

The society is also served. The object of society that all its members playing a positive role by seeking their self-rehabilitation is achieved by the probation system, it is indeed an effective method of preserving social solidarity by keeping the law-breakers well under control. Also, during the probation period, the offender is sent to various educational, vocational and industrial institutions where he is trained for a profession which may help him in securing a livelihood for himself after he is finally released and thus lead an absolutely upright life. And whatever work an offender is doing as a probationer, he is contributing to the national economy. Thus, he no longer remains a burden on the society.

Further, correctional task of probation staff requires closer contact with inmates during his period of probation. This helps the probation supervisor to get a deeper insight into the real causes of crime and suggests remedies for their eradication.

Criticisms Against the Concept of Probation and Their Counter

There are some critics who look at probation as a form of leniency towards the offenders. To quote Dr. Walter Reckless , probation like parole, seems to the average laymen a sap thrown to the criminal and a slap at society. Probation is still generally perceived as a lenient approach rather than a selective device for the treatment of offenders who are no threat to public safety. Probation system lays greater emphasis on the offender and in the zeal of reformation the interests of the victim of the delinquents are completely lost sight of. This obviously is against the basic norms of justice. Keeping in view the increasing crime rate and its frightening dimensions, it is assumed that undue emphasis on individual offender at the cost of societal insecurity can hardly be appreciated as a sound penal policy. Some criticize probation because it involves undue interference of non-legal agencies in the judicial work which hampers the cause of justice.

Further, when non-custodial correctional measures are used arbitrarily, without being resorted to on objective grounds, there is danger of men of means taking undue advantage and abusing the system as against those who would really deserve but have no advocacy or support, and of the whole approach becoming counter-productive and coming into public disrepute.

The answers to these criticisms would lie in the fact that the aim of the criminal justice system is to correct the offender and for some offences this would be best done outside the prison. Further, laying down strict guidelines to determine when probation should be awarded would defeat the very purpose of the concept. The broad parameters laid down age of the offender, surrounding circumstances, nature of the offence, etc. provide a broad framework for the judge to apply his discretion. It would also defeat the purpose if probation has to be granted when certain conditions are satisfied, if for example the facts on record show clear pre-meditation to do a wrongful act.

Responding to the other criticism, it is essential that non-legal agencies, namely probation officers, interference is only meant for smooth functioning, and also it is not mandatory for the judge to consider using the probation officer always. He may not ask for a pre-sentence report, may not put the offender under supervision.

Problems in the Practical Implementation of Probation in India

S. 6 of the Probation of Offenders Act, which makes it easier for a person below 21 years of age to benefit from probation. This is regardless of their antecedents, personality and mental attitude. It might lead to recidivism because many of them may not respond favourably to this reformative mode of treatment. Also, in many cases it is difficult to ascertain whether the delinquent is a first offender or a recidivist.

The Probation of Offenders Act, in sections 4(2) and 6(2), lays down that report of the probation officer is considered before awarding probation. But, the Courts generally have shown scant regard for the pre-sentence report of the probation officer because of lack of faith in integrity and trustworthiness of the Probation Officers. In their view calling for the pre-sentence report would mean unnecessary delay, wastage of time, undue exploitation of the accused by the probation officer and likelihood of biased report being submitted by him, which would jeopardize the interest of the accused and would be contrary to the object envisaged by the correctional penal policy.

On personal interview with some judicial officers and probation officers, conducted by Abdul Hamid, it has come to light that neither judicial officers feel it desirable to get report from the probation officers, nor the probation officers feel it obligatory on their part to submit their reports in the courts unwarranted.
Section 4 of the Probation of Offenders Act does not make supervision of a person released on probation mandatory when the court orders release of a person on probation on his entering into a bond with or without sureties. This is not in accordance with the probation philosophy, which considers supervision essential in the interests of the offender, against corrective justice.

The lower judiciary in India has not at all taken into consideration the objects and reasons of this act, while applying its discretion in regard to grant of probation. In an umpteen number of cases the accused had to move the High Court and even the Supreme Court to get the relief of probation. If an accused gets relief of probation only in the High Court or the Supreme Court after passing through the turmoil of a long and cumbersome judicial process, he would, psychologically, be diverted towards hardened ness and the whole purpose of the Act would be forfeited.

Variation or discharge of the probationer is based solely on the report of the probation officer; this leaves the probationer at the mercy of the Probation Officer.
The after probation services are not very effective. Thus, even considering that a sentence of probation has been passed and the offender is placed under supervision it is nothing more that a regular visit to the officer. There is no scientific process of rehabilitation and the Probation Officers arent adequately trained. They are recruited between 20 and 26 years of age. They are grouped into districts and supervised by a state/provincial chief. There is no in-service training and occasional refresher courses, and thus they are not adequately trained.

Further, often there is a lack of interest for social service among the probation personnel. Lack of properly qualified personnel, want of adequate supervision and excessive burden of casework are attributed as the three major causes of inefficiency of the probation-staff.

Suggestions To Make Probation Service Fulfill Its Purpose

A few suggestions have been given in the paper which may be implemented at the legislative and the administrative level, which would make probation effective in India.

Changes that could be brought about in the law are enumerated below. These changes are mostly applicable to the Probation of Offenders Act as it is more widely applicable than S.360 of the Code.

Due importance must be given to the reports of the probation officers by making necessary amendments in section 4(2) and section 6(2) of the Act. Probation must be based on thorough investigation into the case history of the offender and the circumstances associated with his crime. United Nations Standard Minimum Rules for Non-Custodial Measures also provides that the judicial authority must avail of such a report.

Recidivists have often proved a failure in the process of probation. It has, therefore, been generally accepted that probation should only be confined to the cases of juveniles, first offenders and women offenders. Though S.360 of CrPC lays down that only first offenders will be granted this benefit, if they are not below 21 years of age, no such condition has been laid down in the Act. Necessary amendment may be done to incorporate the same.

It must be made mandatory for offenders to be placed under supervision of a probation officer, by amendment under S.4(3) of the Act, as that would best serve the philosophy of probation. If the officer feels that the offender would not commit a crime, he could then submit to the court an application for the offenders discharge. Also, it has been left to the discretion of the Probation Officer to decide and inform the Court about necessity to vary an order of probation or to discharge the probationer, so there must be a complaint mechanism provided is a probationer wants to complain against a decision concerning the implementation made by the implementing authority, or the failure to take such a decision.

The proviso to S(4) of the Act lays down that probation would be granted only after the offender or his surety, have fixed place of abode or regular occupation. A large segment of offenders consists of the poor, the illiterate and the unskilled. It would not be possible for them to fulfill the conditions in all cases, hence the proviso should be amended to not make it mandatory, and leave it at the jurisdiction of the Court. Amendment could be made to The Code of Criminal Procedure to include the provisions for pre-sentence report and supervision.

To make the judiciary more responsive, an amendment could be brought about in The Probation of Offenders Act which would make it mandatory for the judiciary to lay down the grounds as to why the benefit of probation must not be given, on the lines of S.361 of the Code.

The provisions under the Probation of Offenders Act and the Code of Criminal Procedure could be amended to be similar to the Juvenile Justice (Care and Protection of Children) Act, where more detailed procedures are laid down, like for the setting up of observation homes, report of the probation officer.
Changes could be brought about in the way administration deals with probation. Some of them are enumerated below.

India, being a developing country cant spend heavily on correctional measures, as its emphasis would be more on economic improvement. Due to lack of economic resources most developing countries violate the UN Standard Minimum Rules. It wouldn't be possible for India to adopt all of the measures prescribed by the UN, but India could adopt a few of the measures.

The first among them must be to have trained probation personnel. This isn't there today because the task of the probation officers is not given much importance in India. It is considered to be a mere formality, but if utilized well they would be most effective. The quality of probation service must be improved by making the service conditions of the probation staff more lucrative. This will attract well-qualified and competent persons to the profession. The probation personnel ought to be specially trained so that they can discharge their duty as probation officer competently.

A nation-wide uniform scheme of training for probation personnel with emphasis on social-work and rehabilitative techniques would serve a useful purpose to improve the efficacy of probation service in India. Guidelines for the training of Probation officers as have been laid down in the United Nations Standard Minimum Rules for Non-Custodial Measures, may be followed to the extent possible.

South Africa, though a developing country makes it necessary that desired entrants have degrees in criminology, psychology, or social work. There are also monitoring staff who work parallel to probation officers. Loans are offered for full and part-time study and short courses. Thus it is no excuse that probation may be implemented only in the developed and rich countries.

Further an increased investment on correctional services for the poor, illiterate and unskilled would be most productive not only in reducing crime but also in improving the quality of life among the strata the come from and are ultimately to return to. The Kerala Government has provided for an After Care Programme to rehabilitate probationers. They are given an assistance upto Rs.10,000/- per head. By utilizing this amount they can engage in small scale income generating activities. The amount of assistance is. If the amount is insufficient for meeting the expenses this can be attached with some bank loan. Such services could be extended to the rest of India.

Further, this system must be extended to rural courts where there is general lack of social agencies to undertake the task of rehabilitation of offenders. Rural delinquents may be more responsive to this correctional method of treatment than the urban offenders because of their relatively simple life-style. In developing probation and aftercare services it should be ensured that women and children are specially assisted.

In U.S., Prediction Tables are compiled to plan probation strategies. Such tables may help in anticipating the probable result of correctional treatment on different offenders. There, they have proved immensely helpful in estimation of offenders personality for individualized treatment. For example, a juvenile delinquent from a broken home would be less responsive to treatment than a person from a good family background.

The present system in parts of the country, where the offender only has to present himself before the probation officer on a regular basis would not suffice.
At present the work of probation is assigned to different departments in different States. In some states probation service is placed under the Social Welfare Department while in others in functions under the Panchayat Department or the Home Department. It is advisable to have an independent Department of correctional Services on the pattern of the state of Gujarat at the national level to exclusively deal with rehabilitation of offenders, of which probation is one of the techniques.

An attitudinal change, must be sought and brought about among the judicial officers towards the significance of the probation system, this would make the concept more workable and beneficial. Probation in India as of today is mostly at the States initiative. Instead a central policy towards probation must be formulated.

Conclusion
The object of the criminal justice system is to reform the offender, and to ensure the society its security, and the security of its people by taking steps against the offender. It is thus a correctional measure. This purpose is not fulfilled only by incarceration, other alternative measures like parole, admonition with fine and probation fulfill the purpose equally well.

The benefit of Probation can also be usefully applied to cases where persons on account of family discord, destitution, loss of near relatives, or other causes of like nature, attempt to put an end to their own lives.

Its aim is to reform the offender and to make him see the right path. This can be achieved as has been said previously, not only by legislative action but also by sincerity on the part of the administration. In some parts of the country it is being implemented in the right spirit. The example of Kerala and Andhra Pradesh have been described in the project.

The success of probation is entirely in the hands of the State Government and the resources it allots to the programmes. Resources are needed to employ trained probation officers, to set up homes for those on probation and also for their training besides others.

Thus while concluding it can be said that the concept of Probation would be effective only where the judiciary and the administration work together there must be a common understanding between the Magistrate (or) Judge and the Probation Officer. Probation would be effective only when there is a sincere attempt made to implement it. It would be of great benefit for a country like India, where the jails are often overcrowded, with frequent human rights violations which would harden the human inside a person. Probation is an affirmation of the human inside every being and it must be given de importance.

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