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A Comparative Study Of Probation And Parole

The criminal justice system plays a critical role in dispensing punishment to people who engage in criminal activity. Different explanations exist for why and how offenders are punished. Retributive theory, preventative theory, deterrent theory, and reformative theory are the four primary theories of punishment. The most common kind of punishment is imprisonment, which is thought to be both preventative and deterrent.

However, there has been a change in how society views punishment. Now, many academics believe that a reformative model of punishment is required because our main goal should be the rehabilitation and reformation of criminals. Many academics and legal experts believe that punishments like beatings and incarceration harden the minds of little offenders, especially first-timers. As a result, it is essential to provide offenders an opportunity to make amends in some circumstances. In India's criminal justice system, both parole and probation are accepted as means of correction and rehabilitation.

Meaning of probation

The Latin word "probare," which meaning "to test" or "to prove," is the root of the English word probation. It is an alternate, non-custodial form of punishment. If it is determined that incarceration is not in the offender's best interests, the offender may be released into the community and placed under probation officers' supervision rather than being put in jail.

The Probation of Offender Act of 1958 and the Code of Criminal Procedure, both from 1973, are the two main pieces of Indian law that address probation. Probation was first provided for under Section 562 of the CrPC of 1898. After multiple changes, Section 360 now includes the provision. Before the revised CrPC took effect in 1973, the Indian Parliament passed the Probation of Offenders Act in 1958, which includes some measures not covered by the CrPC.

Provisions under Code of Criminal Procedure:

The sections of the Criminal Procedure Code (CrPC) that address probation are 360 and 361. The provisions of Sections 360 and 361 do not impact the legality of the provisions of the Probation of Offenders Act, the Children Act of 1960, or any other similar law, according to Section 360(10).

Probation is covered in Section 360(1) of the Code of Criminal Procedure

For purposes of this Section:
  1. Any person who is not under the age of twenty-one and is found guilty of a crime that carries a sentence of seven years in prison or a fine
  2. Any person who is below the age of 21 or women who is convicted of the offence that is not punishable with death penalty or life imprisonment and she must not be convicted in the past
  3. When called by the court during the designated period, the court may release the offender on the condition that they behave well or with good conduct and enter into a bond with or without sureties to complete their sentence if called.

In Phul Singh v. State of Haryana (1979), the court ruled that a person in his twenties who has committed a serious crime like rape cannot be awarded probation on the basis of good behaviour.

If the court denies probation, Section 361 of the CrPC, the Probation of Offenders Act, the Children Act, or any other applicable statute must be specifically cited in the decision as to why the offender was not granted probation.

Probation of Offenders Act, 1958

Sections 3 and 4 of this Act provide for release on admonition and probation for good behaviour, respectively, with terms that are identical to those in Section 360 of the CrPC.

According to Section 5 of the Act, the court may, if it deems it appropriate, order the offender to compensate the victim for any losses or harm they have suffered, including the expense of the legal proceedings.

Offenders under the age of 21 are covered by Section 6 of the Act. The following is stated in this Section:
  • The court must first determine if the criminal is under the age of 21 before using Sections 3 or 4 of the Act. The court must request the probation officer's mandatory report in order to do that.
  • The court may decide whether or not the provisions are applicable after obtaining the report.
  • If the court denies probation, it must provide a clear explanation for why.
  • The probation officer's report is intended to be private, according to Section 7 of the Act. Only when dealing with criminals under the age of 21 is such a report required.

The Act is still applicable even though the new CrPC was passed after it, especially as Section 360(10) expressly acknowledges the Act's legitimacy. We could therefore conclude that offenders are entitled to the advantages of both the Act and the CrPC. The doctrine of harmonious construction states that the legislature would not have intended to enter into a contract with itself. As a result, the Act's ability to be enforced would not be compromised by the adoption of the new Code.

Advantages and disadvantages of Probation

The probationary process has the advantages listed below:
  1. It aids in avoiding the impact of incarcerated criminals on first-time offenders.
  2. It safeguards and helps young offenders become better.
  3. It assists in avoiding overcrowding in jails.
  4. It gives a criminal a second chance to contribute to society normally.

The following are the drawbacks of the probationary system:

  1. It enables criminals to avoid punishment from the law.
  2. It sends the wrong message to those planning crimes that they can get away with it.

Meaning of parole

The French expression "je donne ma parole," which translates to "I give my word," is where the word "parole" comes from. The goal of parole, like probation, is to give the prisoner a second chance. However, parole is a type of release that is only available to criminals who are serving their jail sentence.

The Prisons Act, 1894 and the Prisoners Act, 1900 define the parole requirements in India. However, because state governments are free to enact their own parole rules, there isn't a fully unified system of parole laws in India. The criteria for parole differ slightly from state to state.

Refusal of parole

Offenders who fall under the following categories are not eligible for parole:
  1. Who do not hold Indian citizenship
  2. Convicted of offences that endanger national security.
  3. For offences against the state; found guilty.
  4. Prison discipline rules being broken.

Types of Parole

Custody parole and normal parole are the two basic types of parole.

Custody parole
Emergency parole is another name for custody parole. For instances like the passing of close family members like grandparents, parents, siblings, children, and spouses, the marriage of a family member like a sibling, son, or daughter, etc., it is allowed for a period of fourteen days.

Regular Parole

Regular parole is given to offenders who have completed at least one year of their sentence and is typically issued for a maximum of one month.
It is granted for the following justifications:
  1. Due to any significant illness among family members.
  2. An accident or family member's demise.
  3. When the prisoner's wife has delivered the child.
  4. To keep up family relationships.
  5. When a natural disaster has caused substantial harm to his family's property and way of life.
  6. To submit a petition for extraordinary leave.

The Superintendent of the jail typically asks a report from the police station that arrested the inmate when a petition for release is filed. The report is presented to the Deputy Secretary, Home (General), State Government, along with all the requisite paperwork for the rationale of the parole request and the Superintendent's recommendation, and he makes the final decision on whether or not to grant parole to the offender.

In some states, the District Magistrate receives the aforementioned documents after they are forwarded to the Inspector General of the Prison. On advice from the state government, the District Magistrate determines whether or not parole must be given.

Advantages and disadvantages of Parole:

The granting of parole has specific goals and purposes, as stated in the instances of Budhi v. State of Rajasthan (2005) and Charanjit Lal v. State (1985).

According to the rulings, the following are the merits or purposes of providing parole:

  • It makes it possible for inmates to maintain contact with their loved ones and community.
  • They can participate in significant family issues and work through personal issues with its assistance.
  • It provides them with a momentary reprieve from the negative repercussions of being in prison.
  • It succeeds in achieving the goal of the prisoner's rehabilitation and reformation.
  • It motivates inmates to behave well while incarcerated.

Disadvantages are:
  • To have a good behaviour and conduct in imprisonment is not necessarily a guarantee for release
There can political interference and the one who have good political connections can get parole easily

Distinction Between Probation And Parole:

  1. Offenders who are released into the community under supervision as opposed to being imprisoned are given probation. However, parole is just a short-term release for inmates, and it comes with rules they must abide by.
  2. The Probation of Offenders Act and the Code of Criminal Procedure govern probation in India. However, we are unable to locate a consistent and detailed set of guidelines for parole. The state governments are permitted to set their own parole guidelines, which results in variation in parole criteria across the country even though it is recognised by the Prisons Act and Prisoners Act.
  3. The sentence imposed by the court on guilty parties is known as probation. Parole is merely a plan for the short-term release of inmates.
  4. While parole is given while incarcerated, probation is an alternate type of punishment given in place of jail. No, parole is not a substitute for incarceration.
  5. The court issues a sentence of probation. The nature of probation is judicial. In India, the District Magistrate or the Deputy Secretary of the State's Home Ministry make the majority of the decisions about parole. The majority of parole is quasi-judicial in nature.
  6. Prior to being imprisoned, the convict is given probation, and after serving a minimal amount of time behind bars, the prisoner is granted parole.
  7. Offenders who have previously served time in jail or been found guilty are not eligible for probation. Prison-serving convicts are eligible for parole.
  8. An offender who has been released on probation gets resentenced to jail for a specific amount of time if he violates any probationary requirements. However, breaking the terms of parole leads a felon back to jail, where their previous sentence of incarceration resumes.
  9. The initial phase of an offender's correctional process is probation. However, parole comes after a term of punishment for the perpetrator
  10. Since a person on probation is not receiving a prison sentence, there is less stigma associated with them. However, a parolee would experience prejudice after he was let back into society.
In conclusion, but not as 'rights' per per, both parole and probation are acknowledged as legitimate forms of rehabilitation and correction in India's criminal justice system. It aids in lessening the harmful impacts of incarceration on prisoners and lessens the damaging influence of hard-core criminals on other prisoners' minds. However, it can give many people with bad intents the impression that the criminal justice system is lenient and that they won't face any consequences.

Written By: Aditya Raj, B.A.LL.B, Central University of South Bihar

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