The system of probation involves conditional suspension of punishment.
An offender may be released on probation either after the sentence is passed in his case or without passing of a sentence. The probation is a status of a convicted offender during the period of suspension of his sentence in which he is given liberty conditioned on good behaviour and the State helps him in such an instance of good behaviour.
Thus, the suspension of sentence may refer either to the suspension of sentence if the offender is released after the sentence or the suspension of imposition of sentence if he is released without passing a sentence depending on the discretion of the Court.
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The offender may be released on probation after the suspension of his sentence on the following conditions:
(i) His case may be considered as really hopeful when judicial leniency is expedient;
(ii) Probation may be intended to serve a positive role as a method of guidance, assistance and supervision of the probationer so that he may rehabilitate himself for the normal law-abiding life.
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Although probation to some extent has relation with suspended sentence, all suspended sentences are not probation. The probation must carry with it some degree of suspension which is not necessary in case of suspended sentence.
As regards the suspended sentence, judges are restricted by statute in invoking it. In some cases imposition of sentence is suspended while in others its execution is suspended. Some suggest that the suspension of imposition of sentence is preferable because it contains lesser stigma attached.
Distinguishing probation from suspended sentence, Sir Leon Radzinowicz, in his book ‘The Growth of Crime’ observes that probation is far more ambitious and adaptable idea than discharge or suspended sentence. Under probation, the Court prescribes no sentence, but instead requires the offender to be under supervision of a probation officer and maintain contact with him for a prescribed period.
The probationer becomes liable to sentence for original crime only when he fails to keep the requirements or commits another offence. Thus, probation is essentially selective, designed only for those who have prospects to reform but not an easy ‘let-off’ or a form of leniency as alleged by certain critics. The system of probation is the outcome of the efforts of ‘clergy’ and an American John Augustus, a shoe-maker of Bostan.
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John Augustus was the ‘father of probation’. He bailed out 1946 persons during his lifetime keeping in his position by suspending sentences of offenders who had a previous record of good behaviour.
In U.S.A., probation was introduced into Federal Courts by specific statute in 1925. The legal precedent for the suspended sentence for good behaviour can be traced in the case of Forsyth v. Court of Session.