DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA
PROJECT TITLE: PROBATION
SUBMITTED TO:
MS. SOMA BATTACHARIYA
SUBMITTED BY:
ANAND ANKUR ROLL NO. 2013022 SEMESTER: IV; SECTION: A
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ACKNOWLEDGEMENT I
would
like
to
take
this
opportunity
to
thank
MS. SOMA
BATTACHARIYA for his invaluable support, guidance and advice. I would also like to thank my friends who have always been there to support me and the library staffs for working long hours to facilitate me with required materials going a long way in quenching my thirst for education. Last but not the least, my parents, who made me able to be here and complete my work.
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INDEX 1. INTRODUCTION 2. MENAING OF PROBATION 3. HISTORICAL PERSPECTIVE OF PROBATION LAW IN INDIA 4. LAW OF PROBATION IN INDIA 5. OBJECT 6. RELEASE ON PROBATION OF GOOD CONDUCT 7. FIRST OFFENDERS 8. RELEASE AFTER ADMONITION 9. BREACH OF RECOGNISANCES 10. PROBATION OF OFFENDERS ACT EXCLUSIVE OF EACH OTHER 11. PROBATION LAWS IN US 12. CONCLUSION 13. BIBLIOGRAPHY
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“Hate the sin not the sinner”.
- Mohandas Karamchand Gandhi
Introduction 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. 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 of 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 Nation 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. Meaning of probation 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 that is used by the magistracy where guilt is established but it is considered that imposing of a prison 4
sentence would do no good. Imprisonment decreases the convict’s capacity to readjust to the normal society after the release and association with professional delinquents often has undesired effects. Historical perspective of probation law in India In India, probation received statutory recognition for the first time in 1898 through Section 562 of the Code of Criminal Procedure, 1898. Under the provision of this section, the first offender convicted of theft, dishonest misappropriation or any other offence under the Indian Penal Code punishable with not more than two years imprisonment could be released on probation of good conduct at the discretion of the Court. Later, the Children Act, 1908, also empowered the court to release certain offenders on probation of good conduct. Similar provisions existed in the Children Act, 1960 which were repealed consequent to passing of the Juvenile Justice Act, 1986. This Act was further substituted by the Juvenile Justice (Care & Protection of Children) Act, 2000. The Central Government appointed a committee in 1916 to consider the provision of the Criminal Procedure Code. Particularly, it suggested revision of Section 562 and extension of its provisions to other cases also. The scope of probation law was extended further by the legislation in 1923. Consequent to Indian Jail Reforms Committee’s Report (1919-20), the first offenders were to be treated more liberally and could even be released unconditionally after admonition. The first offenders were classified under two categories, namely:— (i) Male adult offenders over twenty-one years of age; and (ii) Young male adult offenders under twenty-one years of age and female offenders of any age. The release of offenders on probation could be extended not only to offences under the Indian Penal Code but also to offences falling under special enactments. To cope up with the extended probation, a number of Remand Homes, Rescue Homes,
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Certified Schools and Industrial Schools were established in Bombay, Madras and Calcutta. The Government of India in 1931, prepared a draft of Probation of Offenders Bill and circulated it to the then Provincial Governments for their views. However, the Bill could not be proceeded further due to pre-occupation of the Provincial Governments. Later, the Government of India in 1934, informed the local governments that there were no prospects of a central legislation being enacted on probation and they were free to enact suitable laws on the lines of the draft Bill. Consequently some of the Provinces enacted probation laws which assumed considerable importance because they introduced for the first time provisions regarding pre-sentence enquiry report of probation officer, supervision by paid and voluntary probation officer and compensation for injury caused to a person by the offender’s delinquent act. The probation laws enacted by Provinces, however, lacked uniformity. After the Indian independence, certain concrete steps were initiated to popularise probation as a correctional measure of treatment of offenders. A Probation Conference was held in Bombay in 1952 on the advice of Dr. Walter Reckless, the United Nations Technical Expert on Correctional Services. This Conference was a milestone in the progress of probation law in India. The noted American criminologist, Dr. Walter Reckless addressed the Conference as a U.N. technical expert and gave valuable suggestions on Prison Administration in India. Consequently, All India Jail Manual Committee was formed to review the working of Indian jails and suggest measures for reform in the system. The Committee in its Report of 1957 pointed out that there was no liaison between the government, the probation personnel, the police, and the prison administrators in implementation of the probation law. The Committee also highlighted the need for a central law on probation with greater emphasis on release of offenders on probation of good conduct so that they are reclaimed as self-reliant members of society without being subjected to deleterious effects of prison life.
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Law of probation in India Section 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. S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation. 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. 360. Order to release on probation of good conduct or after admonition.(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for 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 behavior: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
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(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under the sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
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(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehensions. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. Object Section 360 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 more 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 be good citizens. It is not intended that this section should be applied to experienced men of the world who deliberately flout the law and commit offences. In Jugal Kishore Prasad v. State of Bihar1, the Supreme Court explained the rationale of the provision: “The object of the provision is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.”
1 (1972) 2 SCC 633 9
Release on probation of good conduct Section 360(1) Having regard to the age, character or antecedents of the offender, and the circumstances in which the offence was committed, if the court convicting the accused person considers it expedient to release the offender on probation of good conduct (instead of sentencing him at once to any punishment), it may direct the offender to 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 fix and in the meantime to keep the peace and be of good behaviour. Such a release is permissible only if the following conditions are satisfied:
There is no previous conviction proved against the offender.
When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of which he or she is convicted is not punishable with death or imprisonment for life.
When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with fine only or imprisonment for a term of seven years or less.
First offenders The expression first offender refers to an offender who has no previous conviction to his credit, apart from the offence in question. It is also necessary that the offence committed by him for the first time must be one of those mentioned in section 360, CrPC. First offenders under this section are entitled to indulgence on the ground of their age, character or antecedents and to the circumstances in which the offence is committed. The object of this section is to avoid sending the first time offender to
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prison for an offence, which is not of a serious character and thereby running the risk of turning him into a regular criminal. First offenders according to sub-section (1) fall under two classes:
When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of which he or she is convicted is not punishable with death or imprisonment for life.
When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with fine only or imprisonment for a term of seven years or less.
Offenders with any precious conviction or those found guilty of any offence punishable with death or imprisonment for life are totally beyond the purview of the section. From this section it is clear that it tries to reform the criminals by treating them leniently only in those cases where there is no serious danger or threat to the protection of the society. For application of this section it is necessary that the offender must not have been convicted previously so as to bring him in the category of the first offender. On fulfilment of the above conditions, if the court by which the offender is convicted considers it expedient that the offender should be released on probation of good conduct, it may, instead of sentencing him at once to any punishment, order him to be released on bond with or without sureties. The offender may be required to furnish a bond to appear and receive sentence whenever called upon during such period not exceeding three years as the court may direct. The offender shall be directed by the court to keep the peace and be of good behaviour if he is released on probation under this section. In Md. Syad Ali v. State of Guj. 2, when the accused was a first offender and his age was below 21 years but the court had not applied its mind to the application of section 360, it was held that it was a fit case for granting probation.
2 1989 Cr.L.J. 2063 11
No offender can as a matter of right, on fulfilling the conditions laid down in this section, claim to be released on probation of good conduct. It is a discretionary power given under this section to the court.
Release after admonition Section 360(3) Having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, the court may, after convicting the accused person, release him after due admonition. Such a release is permissible only if the following conditions are satisfied:
There is no previous conviction proved against the accused person.
The offence of which he has been accused of is either theft, theft in a building or dishonest misappropriation or is punishable under the IPC with not more than 2 years’ imprisonment or is one punishable with fine only.
Subsection (3) is applicable only in respect of the specified offences and such other offences under the IPC that are not punishable with more than two years’ imprisonment. Under this sub-section the court has got the discretion to release the offender after admonition instead of sentencing him to any punishment. Section 360(4) An order under s. 360 directing release of the convicted offender on probation of good conduct or release after due admonition may be made by an appellate court or by the High Court or court of session when exercising its powers of revision.
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Section 360(5) The High Court or the Court of Session may, on appeal or when exercising its powers of revision, set aside such order and in lieu thereof pass sentence on such offender according to law. But the High Court shall not inflict a greater punishment than might have been inflicted by the court by which the offender was convicted. Breach of recognisances Section 360(8) & Section 360(9) In case the offender fails to observe the conditions of his recognizance, the court which convicted the offender or any court which could have dealt with him in respect of his original offence may issue a warrant for his apprehension and when brought before it may either remand him in custody until the case is heard or admit him to bail with a sufficient surety and after hearing the case, pass sentence. Probation of Offenders Act exclusive of each other Section 360 itself makes it quite clear that it shall not affect the provisions of the Probation of Offenders Act. According to Section 18 of POA read with section 8(1), General Clauses Act, 1897, Section 360 of the Code would cease to apply to the States or parts thereof in which the POA is brought into force. However, the offender can be still released after admonition or on probation of good conduct under sections 3 and 4 POA which is wider in its scope than the provisions of section 360. In that case also, the court will have to use discretion on the same lines as in cases under section 360. Chhanni v. State of Uttar Pradesh3, is a case relating to applicability of section 360, Cr.P.C. In the instant case it was held that provisions of the two statutes regarding probation have significant differences and they cannot coexist. Hence, provisions of section 360 are wholly inapplicable in areas where Probation of Offenders Act is made applicable. The difference between the two statutes is that section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any 3 2006 Cr.L.J. 4068 (SC) 13
person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of section 4 of the probation of offenders act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Therefore the court held that the provisions in the two statutes with significant differences could not be intended to co-exist at the same time in the same area. The order under this section follows a conviction and can be substituted for a sentence. 361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. Probation laws in US The administrative structure of probation varies widely from state to state. In some states, probation and parole are combined. There are state-administered probation systems and locally-administered system. In New York, probation is locally administered under the general supervision of the state. The New York State Probation commission was created in 1097. Until the late 1920s, the Commission coordinated probation work in various parts of the state, encouraging statewide development of probation services, planned and promoted standards of practice, and guidelines for monitoring local probation services. In 1917, a State Division of Probation was established within the NYS Department of Corrections, and in 1928 the Office of the Director of Probation was created. The State's Division of Probation remained within the Department of Corrections until
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1970, when it was organized as a separate state agency within the Executive Department. The Director of the NYS Division of Probation then became a gubernatorial appointee, directly accountable to the governor. As a result of additional statutory changes, local probation departments, which prior to the early 1970s were responsible to the judiciary, followed the NYS Division of Probation's lead. In 1974, all local probation directors were made accountable to their respective chief county officials, or, in the case of New York City, the mayor. In 1984, the Classification/Alternatives Law expanded the authority of the state division. The name was changed to the New York State Division of Probation and Correctional Alternatives. At present, the New York City Department of Probation is second only in size to its counterpart in Los Angeles County. The Sentencing Guidelines permit a court to impose a sentence of probation if the minimum term of imprisonment specified in the sentencing table is zero months. If the minimum term of imprisonment for the offences is from one to six months, the court may order probation provided that either intermittent confinement, community confinement, or home detention is imposed as a condition of probation. The court may not grant probation if the minimum term for the offense is grater than six months. The Guidelines also limit the discretion of the court in determining the length of a probationary period. Sentencing Reform Act requires that a defendant not commit another crime or possess a controlled substance while on probation. If a sentence of probation results from a felony conviction, the court must also impose a fine, restitution, or community service as a condition of probation. The Act also permits a court to impose discretionary conditions that are reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the goals of sentencing. The Sentencing Guidelines contain a list of standard conditions that are recommended in all cases of probation and a list of special conditions that should be imposed in certain circumstances. Furthermore, the court has discretion to impose any other condition
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that will accomplish the goals of probation. In all cases, the court must provide the probationer with written notice of the probation conditions and may, after a hearing, modify the conditions of probation. Under the Sentencing Reform Act, probation may be revoked at any time before the end of the probationary period for any violation of a probation condition that occurs during that period. The Sentencing Guidelines specify that, depending upon the nature of the violation, the sentencing court may revoke probation and impose a prison sentence, continue probation with additional conditions, or continue probation with the current conditions. In Beardenv. Georgia4, the Supreme Court limited a court's ability to revoke probation, holding that a court cannot automatically revoke probation because the probationer is unable to pay restitution.
4 461 U.S. 660 (1983) 16
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