Introduction
In earlier times, the rule that was emphasised was eye for an eye. It means if a person was killed, was death. But today, the situation has changed. This retributive theory has been taken over by the reformative theory. If a person is killed in today, various factors are taken in consideration while announcing a punishment for him. He may in rare of rarest case be sentenced to death penalty. The aim is to bring the offender back to the society as a law abiding citizen. A person who has committed a non-heinous crime must be shown some leniency. The term probation simply means a person instead of spending time in jail serves a time outside being subject to certain rules and regulations. He is subject to the orders of some authority. The object of probation is to reform a person. It helps him to learn some skills whether vocational or professional, so that he can secure a normal life afterwards. It is just in a form of remedy to save the person from the mental agony. There are certain cases when after serving sometime in the jail the person is left on probation on account of good conduct. A small mistake might change the situation if he makes a mistake and bring him back to square one. It is the discretion of the court to grant the probation or not and it is bound to record its reasons for the same. The rules can be seen in the Code of Criminal Procedure, Juvenile Justice Act 2000 and it has its own special legislation Probation of Offender’s Act 1925.
Origin of the concept
The origin of the concept of probation can be seen from the times of English Criminal Law in the middle Ages. The punishments that were given at that time seemed stricter as the offence committed was a minor one. The concept of pardon has evolved since against such inhumane behaviour. Finally, a temporary release was allowed on account of good behaviour. John Augustus also known as the Father of Probation made a remarkable history as he did a commendable job in the field. His work initially involved around the alcohol abusers but later only this was not so. His insight on the subject revealed around that a person can be changes of his habits by the process of due understanding and kindness. The jail sentence won’t help this type of offenders. They need to be rehabilitated and need moral guidance.The very first law in regard to probation came to enactment in 1859 after he died, to mark his efforts. The law came to be major spread out in various states. Juvenile courts were also being established. Taking of security for good behaviour emerged. The decision came to an in the Killet’s decision where it was held that granting probation is just a remedy. By facing so much of opposition by the federal courts and conferences, the Act was enacted but it was not until 1925.The act was signed by the President Calvin Coolidge. Finally, probation had its own set of conditions. A probation officer was to be appointed for the smooth functioning. The unnecessary pre-trial detention was also an obstacle and to curb that in 1982 President Ronald Reagan signed the Pre-Trial Services Act of 1982.
Kinds and Conditions of probation
Broadly, probation can be of two types formal and informal. A formal one includes a closed supervision by a probation officer whereas informal includes the reporting to a court, for court fees or such other payments. A formal probation is generally granted when the person is charged with an offence that involves violence and the informal is granted for a person charged with less heinous crime. Other types of probation may involve community service or may be subject to specific conditions. This may involve drug tests; register himself as a sexual offender. This is guruanted so that the crime is not repeated. Last type is the shock probation. As the word suggests, it might come as a shock to the offender as being consistently sent to jail. This may help in following the conditions of probation. As we have already seen probation is subject to certain conditions. The conditions are enumerated as follows:-
- Community service
- Court appearance as and when required
- Reporting to the probation officer as and when required
- Drug test
- Can’t object to searches without warrant
- Not to be found at places of criminal acts
- No subsequent crime
There is some special kind of conditions also which involve
- House arrest
- Register as a sexual offender
- Attend drug treatment program
- Making obligation to fulfil family obligations
The order of probation may vary depending upon the jurisdiction and nature of offence for which a person has been committed to conviction. It will also depend upon the type of probation. The judge enjoys a discretionary power when the probation is an informal one but when it is a formal one, the probation officers opinion becomes significant.
Legal provisions for Probation
Before 1974, S562 of CrPC used to provide for probation. But after 1974, the provisions are dealt by S360 of the Code which lays down the rule as such:- If a person above 21 years of age has committed an offence for which punishment is either fine or imprisonment for a period of 7 years or less or if a person who is below the age of 21 years of age or it is a woman who has committed has an offence for which punishment prescribed is not death or imprisonment for life, and such persons are first time law-breakers, the court while exercising its discretion as per the facts and circumstances of the case, having being considered age and character of the person in question, if the court feels that the probation on account of good conduct is necessary: the court may do so after having being received bonds with or without sureties and not pronounce him any sentence. We have already seen the conditions for the same. Any Magistrate can’t pass such orders if he is not vested such powers. He shall forward the accused to the court that is specially empowered to do so. If any further evidence is required, it may procure so. If a person has committed any offence which is not that trivial in nature, the court may after giving warning may release him. The orders are subject to appeal and the appellate court is not bound by the decision of such lower court but it cannot announce a punishment that is more than punishment of that original jurisdiction could pronounce. The rules relation to sureties would be applicable as mentioned in Section 121,124 and 373.
In case of Infringement
In case of violation of the conditions, the court may issue a warrant and have a fair hearing. It may subject him to custody until the case is heard before the court. S361 is obligatory in nature and makes a judge to record the reasons when he decides not to grant probation. The Probation of Offenders Act 1958 lays down for the appointment of probation officers and the rules of probation. Section 4 lays down the release of a person if he is accused of an offence that is not punishable with death sentence or life imprisonment on submitting bonds and to keep the good behaviour for period which can’t exceeded 3 years.
Section 6 puts a burden on the judge if he decides not to grant probation to a person below the age of 21 years. The aim behind this provision is that no such injury should happen to a person that he might not ever return to the society. The aim is to reform such person. The Juvenile Justice Act also make provisions for the children to provide them good homes and learning of moral values. The report that is presented by a probation officer has to be considered by a judge. It acts as a guide to the judge. The aim behind the pre-sentence report is to acquaint the judge about the background of the accused. The rehabilitation is necessary and the court has the power to subject him to the conditions as deemed fit. There is no central policy on the subject of probation but the State policy is the one on which it depends; Centres can be setup by the state government for their rehab and reformation. Various states like Kerala, Andhra Pradesh and Karnataka has setup advisory committees and care programs for the upliftment of such people.
Both the provisions mentioned in the CrPC and the Act is such that where the POA has it applicability and jurisdiction, CrPC doesn’t. The scope of POA is much wider than the provisions given in CrPC.
Benefits and Criticism to Probation
When in a particular case probation is granted what benefits accrue. The person is saved from the mental torture that he might have been gone through if sentenced to jail. A chance to learn and make something of him, lead a normal life is given to him. It tries to make him sufficient and a law abiding citizen rather than being revengeful to the society and holding something against the State. He is given an opportunity to socialise and earn a living. He is tended so that he doesn’t pose a burden to the society. However, it has been criticised too as being opposed to public policy and natural justice. It shows a lenient approach toward the law breakers and therefore shouldn’t be adopted. The answers to such criticism lies down in the stringent provisions laid down in the Act as well as the Code, the provisions make it abundantly clear the person who have committed an offence of non-serious nature and are first time law breakers are no threat to the public.
A loophole that can be seen is the non-obligation of the report that is filed by the probation officer. This might lead to serious consequences. The aim is not punish them but to correct them. The implementation of the lower court is to improve as the person seeking the relief of probation if has to suffer for such claim up to High Court or the Supreme Court, he is already much distressed by the system. Only suggestion in this regard is that the report must be duly prepared and considered by the judge. The provisions of CrPC should include the pre-sentence report and supervision safe homes and care centres should be ensured. Some provisions if made mandatory would ensure success of the concept of probation, India would suffer economically if it plays more emphasis on such measures but at least it should take a step. The problem of lack of trained personals should also be sought. The feeling of working for social cause should gain more importance. Proper incentives should be given to them.
Conclusion
So far discussed about the provisions and rules, we need to understand the logic behind this. Our society is dynamic in nature. We need to make certain changes to cop-up with that. The aim or the object is not to impose harsher punishments on the offender, but to reform him into a law abiding citizen. By granting such remedies, we can actually achieve that. The prison being so overcrowded today is not helping us in any way. If an offender turns into a public-safe person, what is the harm? Not giving him a chance to correct himself is also against public policy. A first time offender, child or a woman who won’t pose a threat to public in their future lives, and on account of good behaviour will help us to a society which is liveable and carefree. Everyone’s is free. The persons who have done a serious harm to the society obviously shouldn’t be given such opportunity as they continue to be a threat to the public.
By-
Vanshika Garg
(Amity Law School, Noida)
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