Essay on Judicial Trend of Probation System in India !
The role of courts in bringing about rehabilitation of offenders need not be over-emphasised. The final verdict as to whether an offender deserves to be admitted to the benefit of release on probation or not, lies with the court. Obviously, the decision as regards the release of an offender on probation is to be taken only after his guilt is proved. Probationary disposition being a post-conviction process, depends largely upon the probability of the offender to reform himself. Therefore, the Judge has to use his discretion in the matter most judiciously.
Socio-legal researches on probation reveal that the factors which influence judicial sentencing, by and large, include age, sex or maturity of the offender, his family and educational background, nature of crime and the circumstances under which offence is committed and previous criminal record of the offender, if any.
ADVERTISEMENTS:
Experience has shown that youth, unblemished previous record, immaturity etc. are generally good grounds for leniency while recidivism, violence, sex-perversiveness, etc. are sufficient to warrant severe punishment. These are, however, mere generalisations and do not in any way fetter judicial discretion in sentencing the offender.
The Judge while considering the punishment can hardly afford to overlook the modem correctional trends in the field of penology. His decision therefore, plays a vital role in deciding the future of the offender.
A survey of the available case-law on probation would reveal that before 1970’s the courts were hardly responsive to changing trends in modem correctional penology due to lack of adequate professional training in rehabilitative measures. This contention finds support in some of the observations made by judicial elites of the country. Thus, Mr. Justice S. M. Sikri, the former Chief Justice of the Supreme Court of India, in his inaugural address on the eve of Probation Year on May 7, 1971, inter alia, observed:
“Not only the probation officers should be convinced of the advantages of the probation but the Judiciary and the Bar must become its votaries. Unfortunately, at present very little serious attention is paid to this aspect by the Judiciary or the Bar.”
ADVERTISEMENTS:
Again, Mr. Justice V. R. Krishna Iyer, former Judge of the Supreme Court, expressing his views on probation and other correctional services in the National Correctional Conference on the Probation and Allied Measures held in October, 1971 at New Delhi observed:
“Twenty-five years of freedom have not freed out judiciary from the obsolescent British Indian penology, bearing on suppression of crime. And it is time for our magistracy to bend to the winds of social changes”
Similar views were expressed by Mr. Justice K. Sadashivan of the High Court of Kerala while addressing the National Conference on Probation in October, 1971. He reiterated the need for the judges and the magistrates to be solicitous to implement the penal reforms envisaged by the law of probation which is a correctional measure.
Commenting on the theme of probation law, Mr. Justice P. B. Gajendragadkar, the former Chief Justice of India, observed:
ADVERTISEMENTS:
“Probation, in its proper perspective should lead us to the consideration of a much larger problem of basis of our jurisprudence and our administration of criminal law on human, scientific and rational lines………. punishment is no longer regarded as reformative or retributive, but is regarded as rehabilitative.”
Expressing concern for the problem of releasing offenders on probation, Mr. Justice О. C. Reddi of Andhra Pradesh High Court pinpointed the need for Judges and magistrates to acquaint themselves with the latest techniques of treatment of offenders, in particular with the system of probation. He warned that mere knowledge about the provisions of probation law is not enough but the magistracy should have a deeper insight into the problems relating to probation and the probationer.
Once again, Justice V.R. Krishna Iyer offered a very dismal picture of judicial trend towards probation and observed:
“The 20th century approach to crime and punishment is, for us, of Gandhian vintage but runs counter to the traditional theory of harsh deterrence writ large in the Indian Penal Code and the Criminal Procedure Code. The ghosts of Macauley and men of his ilk haunt our criminal courts still, so much so, that probation fairs ill in the law courts. Twenty-five years of freedom have not freed our judiciary from the obsolescent British Indian ideology bearing on suppression of crime.
It must be stated that while disposing of the offender on probation the Judges are confronted with the crucial task of striking a balance between the protection of society on the one hand and the correction of offender on the other. The magistracy cannot afford to dispose of the convict without taking into consideration the nature and gravity of the offence and potentialities for reformation of the criminal.
Thus it would be seen that though probation as a treatment reaction to crime presupposes greater emphasis on the offender than the offence, in practice it involves equal importance to offence as well. This contention finds support in a number of judicial decisions of the courts.
In Ranjit Singh v. The State, the High Court of Patna awarded a sentence of six years’ simple imprisonment and a fine of rupees one thousand to the accused for the offence of forgery under Sections 467, 468, 471 and 420 of the Indian Penal Code. Denying the benefit of release on probation to the accused the Court observed that the case deserved no compassion keeping in view the nature and gravity of the offence and the standing of accused as a pleader having a lucrative practise.
Again, in Kamaroonissa v. State of Maharashtra the Supreme Court confirmed the sentence of accused, a girl below 21 years of age who was convicted for theft and observed that it was not desirable to admit her to the benefit of probation. The Court reiterated similar view in Prem Ballabh v. The State.
A review of case law relating to probation of offenders in India would indicate that the courts seem to have exercised utmost caution in interpreting the provisions of probation law and have generally kept in the forefront the public policy and impact of offender’s act on society.
In Sunna v. State the accused aged twenty years was found guilty of an offence under section 380, I.P.C. for committing theft of a bicyle and some clothes. The Court ordered his release after admonition under Section 3 of the Probation of Offenders Act, 1958 because there was no previous conviction of the accused and the theft was committed due to sudden temptation without any premeditation.
In Uttam Singh v. Delhi Administration, the appellant was convicted under section 292, I.P.C., for being in possession of three packets of playing cards and some obscene photographs. He was sentenced to six months’ rigorous imprisonment and a fine of rupees five hundred. Having regard to the age of the accused (he was then 36), and the circumstances of the case, the Supreme Court refused to allow him the benefit of release on probation as he was a potential danger to society.
In Abdul Qayum v. State of Bihar, the appellant aged sixteen years pick-pocketed rupees fifty-six. Despite probation officer’s favourable report for release on probation, he was sentenced to six months’ rigorous imprisonment by the trial court because of his association with a seasoned pick-pocket. On appeal, however, the Supreme Court directed the trial court to place him under probation.
The Supreme Court has always taken a stiff line of approach in dealing with the offenders found guilty of premeditated offences. Thus in Somnath Puri v. State of Rajasthan the Supreme Court dismissing the appeal observed that the benefit of probation law cannot be invoked in case of offence of fraudulent misappropriation falling under Section 409, I.P.C. and Section 5(2) of the Prevention of Corruption Act, 1947 now Act of 1988 and the High Court of Rajasthan was justified in maintaining the sentence of the appellant passed by the trial court.
In yet another case, the Supreme Court ruled that an accused though under 21 years of age cannot be released on probation if found guilty under Sections 326 and 149, I.P.C. which is a premeditated offence punishable with imprisonment for life.
Again, in case of Sanchu Ray v. State of Assam, where the accused was about 19/20 years of age and had no previous criminal antecedents, was sentenced to one year’s rigorous imprisonment. Keeping in view the fact that the accused was of a tender age and the offence was committed ten years ago, the Supreme Court directed him to be released on probation of good conduct with a bond of Rs. 1,000/- with one surety of like amount.
In a criminal appeal, i.e., Raju Singh and others v. State of Madhya Pradesh, the appellants were convicted under Sections 325/34 and 148 I.P.C., the criminal act having been committed long back in 1985. There was no previous conviction against the appellants and they had already been in jail for one month.
The High Court of Madhya Pradesh held that in view of the long pendency of the case and harassment to the appellants for almost a decade, and the antecedents and sentence awarded to them, the appellants deserve to be enlarged under Section 4 of the Probation of Offenders Act, 1958, on probation on execution of a bond of good conduct of Rs. 3,000/-each with two sureties in the like amount for a period of one year. The appeal was thus dismissed with modification in the sentence and directing the appellants to appear before the ACJM Bemetra on March 30, 1995 to execute the bond.
The benefit of release on probation is specifically denied to cases involving sex perversity. Thus, disposing of an appeal involving an offence under section 377, I.P.C., the Supreme Court observed that having regard to the gravity and nature of the unnatural offence which involved sex perversity, the High Court was right in disallowing the benefit of probation to the accused although he had no previous conviction against him. The sentence of accused was therefore, upheld but modified and reduced to six months instead of three years.
The Supreme Court took a strict view of the case involving sex-perversity and refused to allow the benefit of release on probation to the accused in Smt. Devki v. State of Haryana. In this case, the petitioner was found guilty of abducting a teenage girl of 17 years and forcing her to sexual submission with commercial object and was convicted and sentenced by the trial court for three years’ imprisonment. The sentence was confirmed by the High Court. On appeal, the Supreme Court, refused to allow the benefit of probation to the accused keeping in view the moral turpitude and heineousness of the offence.
Again, in Krishna Chandra v. Harbans Singh, the accused, an educated young man was found guilty of having committed house-trespass in his neighbour’s house and committed rape on the said neighbour’s wife. The Court held that the offender cannot be admitted to the benefit of probation keeping in view the nature of the offence and depravity of the offender.
The decision of the Supreme Court in Phul Singh v. State of Haryana, is a pointer to the consistency of judicial trend in disallowing the benefit of probation to offender’s guilty of offences violating sex or morality. In the instant case, the accused Phul Singh, a youth of 22 years of age without any previous criminal record was overpowered by sex urge and entered his next door neighbour’s house in broad day light and committed rape on latter’s twenty-four year’s wife who was alone in the house.
The victim complained to her mother, thereupon the accused was presented and sentenced to four years’ rigorous imprisonment by the Sessions Court. The High Court confirmed the sentence. On appeal, the Supreme Court upheld the sentence but reduced it from 4 to 2 years thus blending deterrence with correctional approach.
The Court observed that despite the fact that the accused was young offender, that he had no previous criminal record, that he had committed the crime in a fit of momentary impulse and was repentant for his act, that he was related to victim’s family who were ready to forgive the molester keeping in view his relationship with them, no leniency can be shown to the accused in cases of such “lust-loaded criminality”.
The judicial attitude has been against allowing the benefit of probation law to persons who are educated and experienced in life and deliberately flout law with impunity. The reason being that if such persons were to be released on probation, the very purpose with which the Probation of Offender’s Act was enacted, would be defeated. This view finds support in Nabin Chandra Das v. State, wherein the petitioner was a grown up man and a journalist who not only used obscene language but assaulted a public servant in a public place.
The Court observed that the conduct of the petitioner who was expected to show greater sense of responsibility manifested a very mischievous disposition. Therefore, the provisions of the Probation of Offenders Act cannot be applied to such a case considering the circumstances of the case including the nature of the offence and character of the offender.
In Siya Saran v. State of Madhya Pradesh, the accused dissatisfied by treatment given to his brother in the Government hospital by the Assistant Surgeon, first insinuated the doctor about the improper manner of treatment meted out to his brother and then gave him a fist blow on his face with the result that a tooth of the doctor was dislocated and his lip was cut.
The appellant was tried and found guilty under Sections 333 and 506, Part II of the IPC and was sentenced to three years’ and two years’ rigorous imprisonment respectively for the aforesaid offences. His appeal to the High Court was dismissed therefore, he appealed to the Supreme Court.
The Counsel for the appellant pleaded that since the appellant had well settled in life by taking up the job of a Gram Sevak, he should be released on probation under Section 6 of the Probation of Offenders Act. The Supreme Court rejected the appeal and observed that the behaviour of the appellant cannot be easily condoned as it would adversely affect the morals of doctors and nurses working in hospitals and they would be left prone to such untoward incidents if the appellant was granted the benefit of probation.
It may, however, be stated that the Courts have shown considerable leniency in extending the benefit of probation to offenders guilty of theft, assault etc. with a view to offering them an opportunity to reform and rehabilitate themselves. Thus in Rajoo v. State of Rajasthan, the High Court of Rajasthan allowed the benefit of release on probation to two accused convicted for offences under Section 323 of the Indian Penal Code.
The Supreme Court in Hansa v. State of Punjab allowed the release of appellant on probation of good conduct although he was found guilty of having committed the offence of causing grievous hurt under Section 325, I.P.C. which is punishable with maximum sentence of seven years. The Court in this case observed that having regard to the circumstances of the case and the nature of the offence as also the character of the offender, it was expedient to allow him the benefit of Section 4 of the Probation of Offenders Act, 1958.
In yet another case i.e., State of Maharashtra v. Ramji Ranchandra Rokade and another, three accused found guilty of offences under Section 353, I.P.C. were admitted to the benefit of release on probation by the High Court of Bombay. In this case, the accused, a cook employed in a Rest House, along with his two sons assaulted a labourer who they alleged had spoiled the drinking water.
While the quarrel was going on, the complainant a constable on duty came there and intervened. According to the complainant, the three accused gave him blows and abuses, while the version of the accused was that the complainant intervened and gave them blows. The accused were convicted under Section 353, I.P.C. but were allowed the benefit of probation because they had no previous conviction against them.
Again, the Supreme Court in Prakash v. State of Madhya Pradesh ordered the release of appellant (accused) who was found guilty and convicted for an offence under Section 324, IPC, on probation of good conduct keeping in view the nature of his offence, the circumstances and antecedents of the offender. In this case, the accused was an employee of the municipality, was a first offender and his offence was not premeditated and the injury caused to the victim was not grave or serious. The Supreme Court ruled that these grounds were sufficient to entitle the accused to be released on probation.
In yet another case, namely, Rajender Dutt v. State of Haryana, the accused, a subordinate employee was found guilty of causing grievous hurt to his superior officer and convicted under Sections 334 and 353 of the Indian Penal Code. He had assaulted the said official due to erroneous belief that he was instrumental in getting the accused transferred elsewhere. The Supreme Court refused to allow the benefit of probation to the accused as his act was premeditated and could not be said to have been done in excitement or in emotional distress.
In the case of Mohammad alias Bitiya v. State of Rajasthan, the appellant was charged under Section 302, I.P.C. but the Sessions Judge convicted him under Section 304, Part II, of the Indian Penal Code and sentenced him to four years’ imprisonment. Against this order, the State as also the appellant preferred appeals but both the appeals were dismissed.
On verification of the age of the appellant, he was found to be less than 21 years of age on the date of occurrence of crime. In view of this fact, the Supreme Court directed that the appellant be released on probation on executing a bond to the satisfaction of the concerned magistrate for the period of two years.
In Mohd Monir Alam v. State of Bihar, there was a sudden fight between the parties who were closely related to each other during demarcation of land on 26th Feb. 1992 which was being conducted by the Revenue Amin in the presence of the police havildar and other officials. The appellant assaulted the deceased during the free fight and was convicted under sections 304, Part II read with Section 149, IPC and sentenced to three years imprisonment.
On appeal, the High Court of Patna modified the conviction from one under Section 304 Part II and 323 simpliciter to one under section 304 Part II read with Section 149 IPC and thus in fact confirmed the judgment of the trial court. In appeal against this judgment of the High Court, it was pleaded on behalf of the appellant that the appellant had secured a very prestigious employment (in 1997) and he should be released on probation of good conduct under section 4 of the Probation of Offenders Act, 1958.
The Supreme Court noted from the documents on record that the appellant had secured a doctorate and was employed as a Senior Asstt. Professor in the Department of Strategic & Regional studies, University of Jammu and had expertised in this subject and had also portrayed his association with other prestigious organisations worldwide in the field of strategic studies.
Therefore, his conduct and attainments justified his release on probation. As such, the court dismissed the appeal but directed that the appellant be released on probation under Section 4 of the Probation of Offenders Act on terms to be settled by the Trial Court.
In Member alias Gudda v. State of Madhya Pradesh,’ the appellant caused 19 injuries to the complainant and was convicted under Section 323, I.P.C. and sentenced to R.I. for one month and a fine of Rs. 500/-. In default of payment of fine, he was to undergo two months’ further R.I. An appeal was filed against this order.
The High Court of Madhya Pradesh held that it was not known to the Court as to who had caused extra injuries whether it was the appellant or the absconding accused named Vakeel. Be that as it may, there is no dispute that the appellant is a first offender and there has been no previous criminal record. He is therefore, entitled to the benefit of Section 3 or 4 and 5 of the Probation of Offenders Act, 1958. He should, however, pay a sum of Rs. 5,000/- as compensation to the victim who suffered as many as 19 simple injuries.
The High Court of Madhya Pradesh in Raju and others v. State of M.P., decided that the benefit of first offender may not be available to an accused who caused simple hurt to the complainant without any dispute and was convicted for an offence under Section 323, I.P.C. because award of sentence is not mandatory for an offence under this section and it may be punishable only with payment of fine.
Taking into consideration the totality of the circumstances, the Court held that accused persons who are rustic villagers deserve to be let-off on payment of fine only without extending the benefit under Section 3, 4 or 6 of the Probation of Offenders Act, 1958. Each of the accused was ordered to pay fine of Rs. 1,000/- within thirty days and in default, undergo R.I. for 6 months. If the fine is recovered, Rs. 3,000/- will be paid to complainant as compensation.
In the case of Sitaram Paswan and another v. State of Bihar, the accused was convicted and sentenced to imprisonment for three months under section 323 IPC and for six months under Section 324 read with Section 34 of IPC. The convict had voluntarily caused simple hurt by using lathis and fists.
The defence counsel pleaded that the accused had no previous conviction and was young therefore, looking to the nature of the offence and circumstances of the case and the character of the offender, he should be allowed the benefit of Section 4 of the P.O. Act and released on probation.
The Supreme Court, while confirming the conviction of the appellant (accused) directed that he be released on probation on his entering into a bond for Rs. 10,000/- within three weeks from the order of the Court. However, the conviction of other appellant who made assault by using sword was not interfered with by the Court as his case was not a fit case for release on probation.
The Supreme Court in Masarullah v. State of Tamil Nadu, allowed the benefit of Sections 4 and 6 of the Probation of Offenders Act to the appellant who was convicted under Sections 452 and 379 of the Indian Penal Code. Taking a lenient view, the Court observed that the appellant belonged to a middle class respectable family but unfortunately he fell in bad company of undesirable elements and the criminal influence of movie accentuated the dormant criminal propensity in him and he committed the crime. Under the circumstances, the accused deserved to be treated leniently and therefore, ordered to be released on probation of good conduct.
In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others, the Supreme Court held that in case of offences under Sections 324 and 452 read with Section 34 I.P.C. (i.e., beating and trespass); the accused may be released on probation by directing them to execute a bond of good behaviour for one year. In this case, the incident of assault (marpeet) took place in a fit of anger during the course of a dispute between neighbours.
The complainant was beaten by the accused persons causing her four simple injuries. All the parties were well educated and also distantly related. The incident was more than ten years old. The accused persons were sentenced to one month imprisonment with a fine of Rs. 500/- each. The High Court maintained the conviction but in appeal, the Supreme Court deemed it a fit case for the accused to be released on probation and allowed the appeal.
In Jawahar v. State of West Bengal, the appellant was guilty and convicted for the offence under Section 454 (lurking house trespass with intention to commit theft) of the Indian Penal Code because he entered the watch repairing shop and was caught stealing red-handed by the informant with the help of some other witnesses.
The trial Court, after applying its mind whether the petitioner should be given advantage of probation law under Section 360, Cr PC declined to allow the benefit of probation to the accused because the accused had dared to enter into the locked shop in open day light. He therefore, deserved to be punished under Section 454, IPC despite his age being little less than 18 years at the time of occurrence (i.e. 4.9.91) and there was no antecedent report against him.
The appeal was rejected by the appellate court and the sentence of the accused for one year and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month, was maintained. In a further appeal, the High Court of Calcutta modified the sentence imposed against the petitioner and directed that he be released on probation for two years on his entering into a bond of Rs. 3,000/- with two sureties of like amount each, one being his father or near blood relation. The Court assigned following reasons for admitting the accused to the benefit of release on probation:—
1. That the accused was aged only about 18 years on the date of commission of the offence;
2. That the occurrence took place in day-light;
3. That the door of the watch repairing shop was so loose that anyone could manage entry into it without breaking open the lock and key; and
4. That no theft had actually been committed as the accused was apprehended while perpertaing the offence.
The Court found it to be a fit case in which benefit of Section 6 of the Probation of Offenders Act could be allowed to the accused.
The crucial question involved in the case of Sudesh Kumar v. State of Uttarakhand, was related to interpretation of Section 6 of the P.O. Act which provides that when any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment 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 circumstances 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 release him on probation. In such case, he shall record his reason for not allowing the benefit of release on probation to the offender.
While interpreting Section 6 of the P.O. Act, a three-judge Bench of the Supreme Court in Daulat Ram v. State of Haryana, observed that the object of the section being to see that young offenders are not sent to jail for the commission of less serious offences because of grave risk of their attitude to life to which they are likely to be exposed as a result of their close association with hardened and habitual criminals, who may happen to be inmates of the jail.
Another three-judge Bench of the Supreme Court reiterated the same principle in Satyabhan Kishore v. State of Bihar, and held that Section 6 lays down an injunction as distinguished from discretion under Sections 3 and 4 not to impose a sentence of imprisonment on an offender, unless reasons are recorded.
In Masarullah v. State of Tamil Nadu the two Judge Bench of the Apex Court held that in case of an offender under 21 years of age, the Court for the purpose of determining the exact age will take into consideration the date of commission of the offence and not the date on which he is found guilty and sentence was passed against him.
However, the Supreme Court in Sudesh Kumar v. State of Uttarakhand, noted that the two Judge Bench in Masarullah case had overlooked an earlier decision of a larger Bench of four Judges given in Ramji Missar v. State of Bihar, wherein the crucial date to be taken into consideration for determining the age of 21 years would be the date of conviction and passing of the sentence by the trial Court and not the date of commission of the offence and this ruling of the Court still holds the field.
Therefore, although the accused was less than 21 years on the date of commission of offence in the case before it, he was above the age of 21 years on the date of conviction and punishment by the trial Court. Hence, there is no question of his being allowed the benefit of Section 6 of the Act for release on probation. More so, when he did not raise this plea before the trial court and the High Court and was raising the issue for the first time before the Supreme Court.
Interestingly, the counsel for the appellants argued that while considering pari materia provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000 the age of Juvenile to be taken into the consideration is date of commission of the offence and not the date when he is produced before the competent authority or Court and therefore, the provisions of Section 6 of the Probation of Offenders Act, should also be construed in the same light.
But the Apex Court clarified the position on these two Acts and held that provisions of Juvenile Justice Act being benevolent and meant for the care, protection, treatment, development and rehabilitation of juveniles, they ought to be given an interpretation which would advance the cause of this beneficial legislation.
But as against this, the purpose of the Probation of Offenders Act for applying the relevant provisions (i.e., Sections 3, 4 and 6) to the accused are different and cannot be said in pari materia with those of Juvenile Justice Act, 2000.
Therefore, Section 6 of the Probation of Offenders Act would apply to the accused who is under 21 years of age on the date of imposition of punishment by the trial Court and not on date of commission of the offence. If on the date of conviction and sentence by the trial Court, the accused is below 21 years of age, the provisions of Section 6 of the P.O. Act will be fully applicable.