The object of Criminal Law is more inclined towards the reformation of the
offender than to punish him. Instead of keeping an accused with hardened
criminals in a prison, the court can order personal freedom on promise of good
behaviour and can also order a period of supervision over an offender. This is
the concept behind ‘probation’. Black’s law dictionary defines ‘probation’
as‘allowing a person convicted of some minor offence (particularly juvenile
offenders) to go at large, under a suspension of sentence, during good
behaviour, and generally under the supervision or guardianship of a ‘probation
It is believed that imprisonment decreases the capacity of an
offender to readjust to the normal society after the release and association
with professional delinquents often has undesired effects on him and his life
thereafter. Probation is a socialized penal device which has come up as the
result of modification, over a period of time, of the doctrine of deterrence
into the principle of reformation; a development that paved the way to the
introduction of clinical approach and the principle of individualization in the
handling of offenders.
According to a report of the United Nations, Department of Social Affairs,
‘Release of 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 Probation of Offenders Act, 1958, is based on the concept that young
offenders can be saved from becoming habitual offenders by treating them
amicably and providing them with a chance to reform rather than dumping them
into jails. The probation officer insists on the problem or need of the offender
and tries to solve his problem and sees to it that the offender becomes a useful
citizen of the society.
Statutory Provisions Dealing With Probation
The earliest provision to have dealt with probation was sectionS.562 of the
Code of Criminal Procedure, 1898. 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 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
The Probation of Offenders Act, 1958 and S.360 of the Code of Criminal
Procedure, 1973 exclude the application of the Code where the Act is applied.
The Code also gives way to state legislation wherever they have been enacted.
The object ofS.360 CrPCis 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.
The Hon’ble Supreme Court in Jugal Kishore Prasad v. State of
,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.”
While dealing with this Act, the three most important provisions that need to be
highlighted are sections 3, 4 and 6. We will now see each of these sections one
Power of court to release certain offenders after admonition.—When any person is
found guilty of having committed an offence punishable under section 379 or
section 380 or section 381 or section 404 or section 420 of the Indian Penal
Code, (45 of 1860) or any offence punishable with imprisonment for not more than
two years, or with fine, or with both, under the Indian Penal Code, or any other
law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other
law for the time being in force, the court may, instead of sentencing him to any
punishment or releasing him on probation of good conduct under section 4 release
him after due admonition.
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
Provided that the court shall not direct such release of an offender unless it
is satisfied that the offender or his surety, if any, has a fixed place of abode
or regular occupation in the place over which the court exercises jurisdiction
or in which the offender is likely to live during the period for which he enters
into the bond.
(2) Before making any order under sub-section (1), the court shall take into
consideration the report, if any, of the probation officer concerned in relation
to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of
opinion that in the interests of the offender and of the public it is expedient
so to do, in addition pass a supervision order directing that the offender shall
remain under the supervision of a probation officer named in the order during
such period, not being less than one year, as may be specified therein, and may
in such supervision order, impose such conditions as it deems necessary for the
due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the
offender, before he is released, to enter into a bond, with or without sureties,
to observe the conditions specified in such order and such additional conditions
with respect to residence, abstention from intoxicants or any other matter as
the court may, having regard to the particular circumstances, consider fit to
impose for preventing a repetition of the same offence or a commission of other
offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to
the offender the terms and conditions of the order and shall forthwith furnish
one copy of the supervision order to each of the offenders, the sureties, if
any, and the probation officer concerned.
Restrictions on imprisonment of offenders under twenty-one years of age.—(1)
When any person under twenty-one 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 if
the court passes any sentence of imprisonment on the offender, it shall record
its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to
deal under section 3 or section 4 with an offender referred to in sub-section
(1) the court shall call for a report from the probation officer and consider
the report, if any, and any other information available to it relating to the
character and physical and mental condition of the offender.
Important Case Laws on Sections 3, 4 & 6 of The Probation of Offenders Act
In Keshav Sitaram Sali v. State of Maharashtra
, it was held by the Supreme
Court that in a case of petty theft the High Court should have extended the
benefit of either section 360 of the Code of Criminal Procedure or sections 3
and 4 of the Probation of Offenders Act to the appellant instead of imposing a
sentence of fine on him.
In Basikesan v. State of Orissa
, a youth of 20 years was found guilty of an
offence punishable under section 380 of Indian Penal Code, 1860 and no previous
conviction was proved against him. It was held by the court that the offence
committed by the accused was not out of deliberate preparation or design but it
was a fit case for application of section 3 and he be released after due
In Daulat Ram v. State of Haryana
, it was held that the object of section 6
is to ensure that juvenile offenders are not sent to jail for offences which are
not so serious as to warrant imprisonment for life, with a view to prevent them
from contamination due to contact with hardened criminals of the jail.
Therefore, the provision should be liberally construed keeping in view the
spirit embodied therein.
The question of age of the person is relevant not for the purpose of determining
his guilt but only for the purpose of punishment which he should suffer for the
offence of which he is found guilty. Therefore, where a court found that
offender was not under the age of 21 years on the date when court found him
guilty, sub-section (1) of section 6 will not apply
Salient Features of The Probation of Offenders Act, 1958
The Probation of Offenders Act (Act No. 28 of 1958) contains elaborate
provisions relating to probation of offenders, which are made applicable
throughout the country. We will now observe the salient features of the Act:-
·The Probation of Offenders Act, 1958 is intended to reform the amateur
offenders by providing rehabilitation in society and to prevent the conversion
of youthful offenders into obdurate criminals under environmental influence by
keeping them in jails along with hardened criminals.
·It aims to release first offenders, after due admonition or warning
with advice, who are alleged to have committed an offence punishable under
Sections 379, 380, 381, 404 or Section 420 of the Indian Penal Code and also in
case of any offence punishable with imprisonment for not more than two years, or
with fine, or with both.
·This Act empowers the Court to release certain offenders on probation
of good conduct if the offence alleged to have been committed is not punishable
with death or life imprisonment. However, he/she should be kept under
·The Act insists that the Court may order for payment by the offender
such compensation and a cost of the proceedings as it thinks reasonable for loss
or injury caused to the victim.
·The Act provides special protection to persons under twenty-one years
of age by not sentencing them to imprisonment. However, this provision is not
available to a person found guilty of an offence punishable with life
·The Act provides freedom to the Court to vary the conditions of bond
when an offender is released on probation of good conduct and to extend the
period of probation not to exceed three years from the date of original order.
·The Act empowers the Court to issue a warrant of arrest or summons to
the offender and his sureties requiring them to attend the Court on the date and
time specified in the summons if an offender released on probation of good
conduct fails to observe the conditions of bond.
·The Act empowers the Court to try and sentence the offender to
imprisonment under the provisions of this Act. Such order may also be made by
the High Court or any other Court when the case comes before it on appeal or in
·The Act provides an important role to the probation officers to help
the Court and to supervise the probationers put under him and to advise and
assist them to get suitable employment.
·The Act extends to the whole of India except the State of Jammu and
Kashmir. This Act comes into force in a State on such date as the State
Government may, by notification in the Official Gazette, appoint. It also
provides liberty to State Governments to bring the Act into force on different
dates in different parts of that State.
Duties of A Probation Officer
Sec 14of the Act deals with the duties of a probation officer. It states:-
A probation officer shall, subject to such conditions and restrictions, as may
be prescribed -
(a) enquire, in accordance with any directions of a court, into the
circumstances or home surroundings of any person accused of an offence with a
view to assist the court in determining the most suitable method of dealing with
him and submit reports to the court;
(b) supervise probationers and other persons placed under his supervision
and, where necessary, endeavour to find them suitable employment;
(c) advise and assist offenders in the payment of compensation or costs
ordered by the
(d) advise and assist, in such cases and in such manner as may be prescribed,
persons who have been released under section 4;
(e) perform such other duties as may be prescribed.
Offences In Which Probation Cannot Be Granted
We will now deal with those cases where probation cannot be granted:-
1) In Ahmed v. State of Rajasthan
, it was held that the benefit of this
Act cannot be extended to a person who has indulged in an act which has resulted
into an explosive situation leading to possibilities of communal tension.
2) In State of Maharashtra v. Natverlal
, the Supreme Court declined to
accord to the accused found guilty, the benefit of Probation of Offenders Act
because smuggling of gold not only affects public revenue and public economy,
but often escapes detection.
3)Again in Smt. Devki v. State of Haryana
, it was held that the benefit
of Section 4 would not be extended to the abominable culprit who was found
guilty of abducting a teenage girl and forced her to sexual submission with
4)In 2015, a Supreme Court bench consisting of Justices Pinaki Chandra
Ghose and Uday Umesh Lalit has ruled that the benefit of Probation of Offenders
Act cannot be extended to accused involved in crimes against womenThe
accused, Sri Chand was alleged to have lured a 12 year old girl, who was grazing
buffaloes in the jungle, and taking her into a room wherein she was forcibly
undressed and the offense of rape was committed on her. The court while giving
the judgment relied on cases like Azhar Ali v. State of West
and State of Himachal Pradesh v. Dharam Pal
It is a settled law that nobody can claim benefit under the Act as a matter of
right. It was observed inState of Sikkim v. Dorjee Sherpa And Orsthat
the Court should not take technical views in certain cases and should take into
consideration some other aspects such as possibility of losing the job, for
invoking the provisions of Probation of Offenders Act even in serious offences.
It has further been contended that the Court should also take into consideration
that the convicts belonging to middle class families without any criminal
antecedent often become victim of circumstances because of undesirable company
and other evil influences available to such young generation.
The provisions of Probation of Offenders Act, 1958 normally cannot be applied to:-
· ACB cases
· Section 304 of the Indian Penal Code,
· NDPS Cases
· Section 304-Aof the Indian Penal Code
· Section 325 of the Indian Penal Code
· Sections 409, 467, 471 of the Indian Penal Code
· Kidnap and abduction
· Habitual offenders.
To conclude, it can be said that the measure of alternative punishment i.e.,
probation and the objective of theory of reformative punishment would be
achieved only if the judiciary and the administration work together. 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 importance. The reform and rehabilitation process have to be
worked out in context of existing social conditions to achieve the ultimate
objective to reclaim back those offenders to orderly society.
1.Lectures On Criminal Procedure By Rv Kelkar
2. The Code On Criminal Procedure By Ratanlal Dhirajlal
Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633.
 Keshav Sitaram Sali v. State of Maharashtra, AIR 1983 SC 291.
Basikesan v.State of Orissa , AIR 1967 Ori 4.
 Daulat Ram v. State of Haryana, 1972 SC 2434.
Ramji Nissar v. State of Bihar; AIR 1963 SC 1088.
Ahmed v. State of Rajasthan , AIR 1967 Raj 190
State of Maharashtra v. Natverlal, AIR 1980 SC 593.
 Smt. Devki v. State of Haryana,AIR 1979 SC 1948.
State of Rajasthan v Sri Chand
 Azhar Ali v. State of West Bengal (2013) 10 SCC 31
State of Himachal Pradesh Vs. Dharam Pal (2004) 9 SCC 681
Commandment 20 BK. ITB Police v. Sanjay Binjola, AIR 2001 SC 2058
State of Sikkim v. Dorjee Sherpa And Ors, 1998 CriLJ 2685
State of Gujarat v. VA Chauhan, (AIR 1983 SC 359)
 Vajja Srinivasu alias Srinu v. State of Andhra Pradesh, (2002) 9 SCC 620
Dalbir Singh v. State of Haryana, (AIR 2000 SC 1677)
Smt. Devki alias Kala v. State of Haryana, (AIR 1979 SC 1948)
Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117