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CHAPTER 5

Policies of Probation Benefits And Probation

Philosophy in Penal System

5.1 Introduction

S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that

the judge would consider the report of the probation officer before

deciding on whether to grant probation. S. 14 of the said Act lays down

the duties of the Probation Officers.1

The pre-sentence report of the Probation Officer is the fundamental

document for the guidance of the Court whether to grant the benefit of

probation to the accused or not. The object of the pre-sentence report is

to appraise the court about the character of the offender, exhibit his

surroundings and antecedents and throw light on the background which

prompted him to commit the offence and give information about the

offenders conduct in general and chances of his rehabilitation on being

released on probation.2

The judge may also pass a supervision order under section 4(3) of

the Act, whereby the offender is placed under the supervision of a

probation officer and certain conditions are imposed upon him. This is

mostly in the form of regular visits to the supervising officer. Some of the

conditions which must be followed have been laid down in S. 4(4). On the

application of the probation officer such conditions may be varied- S. 8(2)

and also the offender may be discharged- S. 8(3). If the offender fails to

follow the conditions laid down by the Court, the original sentence

against him may be revived S. 9.3

1 The probation of offender act 1958, section 4. 2 Websites used – https://www.revisor.leg.state.mn.us/status. 3 Probation of offenders act 1958.

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The Juvenile Justice (Care and Protection of Children) Act, 2000

provides for the report of a probation officer or a recognized voluntary

organization to be considered before passing a sentence. The Magistrate

appointed as a member of the Board constituted under this Act must

know something of child psychology. The Board would pass orders

against a juvenile. The Act provides for the setting up of Observation and

Special Homes by the State Government where the juvenile could be

placed. Here the rehabilitation and social integration of the child would

take place. It also provides for an After care programme which would

take care of the delinquent child after he has been discharged from these

homes, based on the report of the Probation Officer. The Probation

officers appointed under the probation of Offenders Act would also

function under the Juvenile Justice (Care and Protection of Children)

Act.4

Probation in India is mostly dependent on the policies of the State

rather than a uniform Central Policy. In Karnataka a State level

Probation Advisory Committee has been constituted with High Court

Judge as Chairman with official and non-officials as members. A District

level Probation Advisory Committee has been constituted in each district

consisting of the District and Sessions Judge as Chairman with official

and non-officials as members. After Care Programmes have been set up

to improve the lives of those released on probation. The After Care

Programme, in Kerala, is intended to rehabilitate released prisoners and

probationers coming under the supervision of District Probation Officers.

By utilizing this amount they can engage in small scale income

generating activities. The amount of assistance is Rs.10,000/- per head.

If the amount is insufficient for meeting the expenses this can be

attached with some bank loan. Department of Juvenile Welfare and

Correctional Services was set up in Andhra Pradesh in 1990. It gives the

4 The Juvenile Justice (Care and Protection of Children) Act, 2000

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following probation services taking care of probationers released by the

courts and ex-convicts, released juveniles, after-care work, counseling

and guidance to reform themselves and not to revert to crime and for

their rehabilitation through Govt. Welfare Agencies.5

An Order S. 360 Then provides that in certain cases, if a person is

convicted of certain offences and it appears to the court that having

regard the age, character, or antecedents of the offender, and also to the

circumstances in which the offence was committed, it is expedient that

the offender showed be released on probation on good conduct instated

of sentencing him. The court may divert him to be released on bond, with

or without sorties to appear and receive the sentence when called upon

during such period (which cannot exceed three years) as the court may

direct and in the mean while to keep the peace and be of good

behaviour.6

However the above direction can be exercised by the court only of

the following condition exist namely –7

1. A person not under 21 years is convicted of an offence

punishable with fine only or with imprisonment for 7 years or

less.

2. A person under 21 years or a woman of any age is convicted

of an offence not punishable with death or life imprisonment.

3. No previous conviction is proved against the offender.

Before diverting the release of an offender as above, the court must

be satisfied that such a person or his society, of any, has a fixed place of

resident or a regular occupation in the place in which the court is

situated or in which the offender is likely to live during the relevant

period.

5 Ahmad Siddiqui – Criminology, chapter Probation. 6 Section 360 of criminal procedure code 1973. 7 Political law times etd. Oct. 2008, page 74.

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If the court is satisfied that the offender has failed to observe an of

the condition of his recognition it may issue a warrant for his arrest.

Source - Sita Ram Vs Malkiat Singh A.I.R. 1956, 138.

5.2 Provisions of Probation in Indian Law

Section S.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, 1974.9 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 fro 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 behaviour.

S.361 makes it mandatory for the judge to declare the reasons for

not awarding the benefit of probation.10 The object of probation has been

laid down in the judgment of Justice Horwill in In re B. Titus : S. 562 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 mature

8 A.I.R. 1956, 13 9 The code of Criminal procedure 1973. 10 Section 361 of criminal procedure code 1973.

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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 make good citizens. In such cases, a

term of imprisonment may have the very opposite effect to that for which

it was intended. Such persons would be sufficiently punished by the

shame of having committed a crime and by the mental agony and

disgrace that a trial in a criminal court would involve.

In 1958 the Legislature enacted the Probation of Offenders Act11,

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.

Section 4 of the Act provides for probation.

S.4 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

behaviour.

11 Probation of Offenders Act, 1958.

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S. 6 of the same Act lays special onus on the judge to give reasons

as to why probation is not awarded for a person below 21 years of age.

The Court is also to call for a report from the probation officer before

deciding to not grant probation.

The provision under the Code and the Act are similar, as they

share a common intent, that, punishment ought not to be merely the

prevention of offences but also the reformation of the offender.

Punishment would indeed be a greater evil if its effect in a given case is

likely to result in hardening the offender into repetition of the crime with

the possibility of irreparable injury to the complainant instead of

improving the offender.

Yet there are a few differences, which have been enumerated

below. S.4 of Probation of Offenders Act S.360 of The Cr.P.C.12

Any person may be released on probation, if he has not committed

an offence punishable with death or imprisonment for life.(No distinction

is made on ground of sex or age) Any person not under 21 years of age13,

if convicted of an offence punishable with imprisonment for not more

than 7 years or when any person under 21 years of age or any woman is

convicted of an offence not punishable with death or imprisonment for

life may be released on probation. It is not necessary that the person

must be a first offender. This section applies only when no previous

conviction is proved against the offender.

Any magistrate may pass an order under this section. Magistrate of

the third class or of the second class not specifically empowered by the

state government had to submit the proceeding to Magistrates of the first

class or Sub-Divisional magistrates. Supervision order may be passed

12 Section 4 of Probation of Offender Act, 1958. 13 Code of Criminal Procedure, Section 360.

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directing that the offender shall remain under the supervision of a

Probation Officer. No such provision.14

Besides these two enactments, the Juvenile Justice (Care and

Protection of Children) Act, 2000 also provides for the release of children

who have committed offences to be released on probation of good

conduct and placed under the care of any parent, guardian or other fit

person, on such parent, guardian or other fit person executing a bond,

with or without surety, or any fit institution as the Board may require,

for the good behaviour and well-being of the juvenile for any period not

exceeding three year.

5.3 Basis of obtaining probation benefits:-

(i) Normal rule is to release the offender on probation –

The legislative policy that the benefit of probation should be liberally

given is made abundantly clear by provisions of Sec. 361 of the Code of

Criminal Procedure, 1973 which lays down that where an offender could

have been dealt with under Sec. 360 of the Code of Criminal Procedure,

1973 or under the provisions of the Probation of Offenders Act, 1958, etc.

and has been so dealt with, the Court shall record in its judgment the

special reasons for not having done so. The normal rule, therefore, is that

having regard to the relevant considerations, the Court should ordinarily

release the offender on probation and where the Court decides against

probation, it is required to state its special reasons for doing so.15

(ii) Offenders not to be jailed for trifling offences

The Courts while inflicting conviction and sentence should be

guided by the provision of Sec. 360 of the Code of Criminal Procedure,

1973 and Probation of Offenders Act, 1958. It is not desirable to send

young boys in jail for trifling offence without giving them opportunity and

14 Dalbir Singh V/s State of Haryana AIR 2000 SC, 1677. 15 Harbans Sigh v. State of Punjab, 1990 (1) A.I.Cr. L.R. 851 at pp. 852-853 (P.&H.).

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the Court shall ensure that all reformative measures should be taken to

rectify the conduct of young persons if involved in any offence.16

(iii) Considerations for granting probation spelled out –

Before releasing the appellant on probation, the Court shall also take

into consideration the age, character, antecedents of the offender and the

circumstances in which the offence was committed. After considering

these factors if the Court forms an opinion that it will be appropriate to

release the offender on probation, then he should have been dealt with

either under sub-section (1) of Sec. 4 of the Probation of Offenders Act,

1958 or under Sec. 360 of the Code of Criminal Procedure, 1973.17

(iv) Extending the benefit of the provisions of Probation of Offenders

Act, when obligatory –

The manner in which the occurrence is stated to have taken place

itself shows that it is due to sudden loss of self control. In such

circumstances and when the punishment imposed by the lower Court is

only imprisonment till the rising of the Court for the first accused and

fine only for the other accused, the Court is under a legal obligation to

consider to extend the benefits available either under Sec. 360 of the

Code of Criminal Procedure, 1973 or under the provisions of the

Probation of Offenders Act, 1958.18

(v) No distinctions called for between accused pleading guilty or not

guilty in granting probation –

The instant case is a peculiar one. Two persons were charged with

the offence of misappropriations. One pleaded guilty to the charge and

was released on probation on his payment of the misappropriated

amount. The present petitioner did not plead guilty to the charge thereby

16 Swapan Das v. State of Tripura, 1996(1) GAu. L.R. 305 at p. 306. 17 Virender Kumar v. State of Haryana, 2004(3) A.I.Cr.L.R. 539 at p. 541 (P.&H.):2004(2) R.C.R. (Cr.) 775 at p. 776. 18 Sampath v. State rep. by Sub-Inspector of Police, 2000(2) L.W. (Cr.) 861 at p. 863 (Mad.).

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the trial was brought to its logical conclusion and he was found guilty of

the charge leveled against him. Simply because he wanted to be tried is

no ground to deal with him differently from the way the other person was

dealt with on his plea of guilt and on payment of the misappropriated

amount. As transpiring from the Probation Officer's report together with

the annexure accompanying it, the present petitioner has already paid

up the misappropriated amount. It is not necessary to deal with him

differently from his co-accused in the matter of sentence.

Selection of Offenders for Probation19

Selection is suitable cases for being placed on probation and parole

and subsequent follow up through competent supervision of the

probationers and parolees are the two basic elements of any effective

program of probation or parole.

The report of probation officer is primary importance as an aid to

the court for making decision regarding the release on probation.

An ideal report should give information regarding family history

and personal, social and economic factors of the offenders and a plan for

correctional treatment of the offender.

If the recommendation is for the grant of probation, In short the

probation officer has to evaluate the personally of the offender. The court

has to make the decision after taking into consideration the probation

officer's report and nature and circumstances of offences.

The most important consideration is to appraise the risk involved

to the society in releasing the offenders and whether the risk is worth

taking in the context of the offender's personally and the community

large.

To some extent the job is done by the legislative by laying down

that probation shall not be granted in some serious offenders which give

punishable death or life imprisonment.

19 Ahmad Siddiqui – Criminology.

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The legislative may also lay down some guiding principles in terms

of the age of the offenders making probation more-desirable in case of

younger offenders. For instance, the probation of offenders act in India

provides.

Benefit of probation when to be granted

In the instant case, probation was refused to the accused convicted

under Sec. 9 of the opium Act. The High Court observed that giving the

benefits of Sec. 4 of the Probation of Offenders Act, 1958, in a particular

case does not imply that all persons-accused of the similar offence will

automatically be given the benefit of the same provision. one cannot lose

the sight of totality of facts. When illegal traffic in such substances is

organised in such manner, the structure of the society could not be

allowed to crumble. More so when these substance are the health

hazard.20

In the instant case, the accused was convicted for an offence

punishable under Sec. 47(a) of the Bihar and Orissa Excise Act.

Regarding the consideration of the benefit under provisions of the

Probation of Offenders Act, 1858, the Trial Magistrate has held that

having regard to the nature of offence for which the accused stands

convicted, he was not ready to deal with under the provisions of

Probation of Offenders Act. According to the counsel for the petitioner,

this much is not suffering is not giving the benefit to the accused under

the provisions of the Probation of Offenders Act, 1958. The Trial

Magistrate should also look to the character of the accused and the

documents of the case. The submission is that unless the report from the

Probation Officer is called for, no such opinion can be found by the

Magistrate. Thus according to the learned counsel for the petitioner the

report of the Probation Officer is a must.

20 Jaddmani Seth v. State, 1994 (II) O.L.R. 599 at p. 601.

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A-Benefit of Sec. 3 of the Act -

In the instant case, the deceased was working as "Centering Mistri"

for the purpose of construction of a government road. Wire running from

the place where work was going of II KVA which can only be connected

from the Electric Station and it is not the power and to switch it off

without information to the Executive Engineer or any other person of the

Electricity department. The allegation was that the electric line is

disconnected seems to be improbable and unlikely. Therefore, the Court

does not find that the appellant deliberately told a lie in order to get his

work done. Hence, sentence altered and the family of deceased would not

be entitled to pay interest on the amount of fine i.e. Rs. 1 lakh imposed

against appellant.21

B-Extension of the benefit of Probation of Offenders Act to the

accused Government Servant who had no previous criminal history

Considering the fact that appellant No.1 is a Government servant

and the others being young men and that there was no previous

conviction against them and further as there appears to be no pre-

mediation, this court feels that ends of justice will be better served if the

provisions of the probations of offenders Act is extended to the appellants

and their conviction may not be considered as 'moral turpitude.'22

C- Availability of benefit of the probation offenders Act

The incidence occurred about 12 years back and no doubt, the

accused petitioners revisionist as well the victim belong to the same

village and the interested persons have come forward deposing about the

assault and about inflicting of injuries to the victim and also the fact that

the said accused have never been involved in any of the offence and they

21 Kuber Modi v. State of Orissa, 2009 (3) East. Cr. C. 41 at pp. 41, 42 (Pat.) 22 Kuber Swain v. State of Orissa, 2009 (75) A.I.C. 838 at p. 841 (Orissa); Mohinder Singh v. State of Punjab, 2009 (1) A.I. Cr. L.R. 599 (P. & H.)

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have never been convicted or sentenced previously and also keeping in

view the nature of injuries inflicted and the type of trauma the victim

have undergone. It is difficult to extend the benefit of Probation of

Offenders Act.23

D- Benefit of Sec. 360 of Cr. P.C.

In the instant case, the appellant Nos.2 and 3 who were convicted

for offence punishable under Sec. 323 of I.P.C. and were sentence to

undergo rigorous imprisonment for one year. However, considering the

long passage of time and the period of sentence imposed was appropriate

to extend to appellant Nos.2 and 3 the benefits of Sec. 360 of Cr. P.C. on

entering into bonds of such amount as may be fixed by the learned Trial

Judge.24

E- Score of Sec. 3 and 4 of the Probation of Offenders Act-

Enforcement of Probation of offenders Act excludes the applicability

of Secs. 360 and 361 of Cr. P.C.-

The scope of Sec. 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. Section 360 of the Code

does not provide for an role for Probation offices in assisting the courts in

relation to supervision and other matters while the said Act does make

such a provision. While Sec. 12 of the said Act states that the person

found guilty of an offence and dealt with under Sec. 3 or sec. 4 of the

said Act shall not suffer disqualification, if any, person attached to

conviction of an offence under any law, the code does not contain parallel

provision. Two statues with such significant differences could not be

intended co-exist at the same time in the same area. Such co-existence

would lead to anomalous results. The intension to retain the provisions

23 Bhajan Singh v. State of H.P., Cr. L.J. 2008 Cr. L.J. 4702 p. 4708 (H.P.). 24 Nasiruddin Khan v. State of Bihar, (2009) 2 S.C.C. (Cr.) 775 at p. 777.

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of Sec. 360 of the Code and the provisions of the said Act, as applicable

at the same time in a given area, cannot be gathered from the provisions

of Sec. 360 or other provision of the Code. Therefore, by virtue of Sec.

8(1) of the General Clauses Act, where the provisions of the said Act have

been brought into force, the provisions of Sec. 360 of the of the Code are

wholly inapplicable.

Railway Property (unlawful possession) Act, 1966 –

Whether benefit of probation can be extended to persons. –

Provisions of Sec. 360 of the Code of Criminal Procedure and Sec.

4 of the Probation of Offenders Act, 1958 are not mandatory in nature.

The exercise of the power there under is purely discretionary are even if

under Sec. 361 of the Code of Criminal Procedure the Court has to give

reasons for not extending the benefit of Sec. 360 or the Probation of

offenders Act to the accused. Discretion not to be used lightly especially

when accused if found guilty of offence for which minimum sentence is

provided. It is not a rule of universal application that an accused who

has faced protracted criminal proceedings should forthwith be released

on probation of good conduct. Each case has to be judged on its own

merits. Gravity of the offence, manner and circumstances under which

the offence was committed and the character of the offender are some of

the factors which should also be taken into consideration while ordering

the release of the convict on probation of good conduct. The benefit of

probation should not be granted to those matured persons who

deliberately flout the law or such persons were to be released on

probation very object with which the Act was enacted would be

defeated.25

25 Virendra Singh v. State, 1991 J.C.C. 212 at p. 215 (Del.).

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Application of the provisions under Sec. 3 of the Act –

The question that arises for consideration is whether the learned

Magistrate was justified in law in accepting the prayer of the petitioners

to release them on probation having found them guilty under Sec. 3 (a) of

the Railway Property (Unlawful Possession) Act, 1966. The question

relating to applicability of the provisions of the probation of offenders Act,

1958 to the offence punishable under the Railway Property (unlawful

Possession) Act, 1966, came up for decision before the Supreme Court in

Nirmal Lal Gupta v. State of Orissa.26 In interpreting Cls. (a) of Sec. 3

of the Railway property (Unlawful Possession) Act, 1966 their Lordship

held as follows:

Clauses (a) gives a choice to the Court to either award

imprisonment or impose fine, or both. It is the choice of the Court hwich

determines whether the imprisonment alone should be awarded or fine

alone be imposed or both should be awarded. It is thus obvious that it is

not obligatory on the Court to always award imprisonment as a

punishment. Once it is so understood it is difficult to comprehend that a

minimum sentence alone there under is impossible to which the

Probation of Offenders Act would not be applicable."

The learned Magistrate, therefore, did not commit any illegality in

directing release of the petitioners on particular.27

Nature of Offence and character of offender relevant -

It is clear that it is the nature of the offence and character of the

offender, which is subject matter of consideration in order to arrive at a

conclusion whether it is expedient to release him on probation of good

conduct or not. When both parties are living in same village and litigation

is pending between them and daily they have an intention of harm being

caused by one another, it cannot be said that it was an innocent act,

which all of a sudden took shape of injury being caused. Therefore, it is

26 1995 Supp. (2) S.C.C. 713. 27 Awadesh Alias Awadish v. State, 90 (2000) C.L.T. 5 at pp. 7,.8.

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not a fit case in which it may be said that the conduct of the accused

justifies for being given the benefit of Sec. 4 of the probation of Offenders

Act.28

Of Offences causing hurt by dangerous weapons or means (Sec. 324

of the I.P.C.) - Petitioner was convicted - No special reasons have been

assigned by the Appellate Court in this case for not applying the

provisions of the probation of offenders Act, which was mandatory for the

Court to record in its judgment for not giving the benefit under Sec. 360

of the Code of Criminal Procedure, 1973, compelling the Court to hold

that it is impossible to reform and rehabilitate the offender. The

applicant being an employee in the Municipality, a first offender deserves

to be given the benefit of probation under Sec. 360 of the Code of

Criminal Procedure, 1973 as the incident was not pre-planned nor the

injury caused was of serious nature. Therefore, in the circumstances of

the case and having regard to the nature of the offence as also the

character of the offender, it is expedient to release the applicant on

probation of good conduct.29

Conviction under Sec 325 of the Indian Penal Code - Released on probation

considering the age below 21 years - The maximum sentence provided

under Sec. 325 of the Indian Penal Code is 7 years. The prayer of the

revisionists for being given the benefit of Sec. 4 of the Probation of

offenders Act, 1958 seems to be justified in law. Consequently, the said

prayer of the revisionists is allowed and having regard to the

circumstances of the case, nature of the offence as also the character of

the offenders, it is a fit case to release them on probation for a period of

one year from the date of their release on filing a personal bound each to

the satisfaction of the Trial Court, i.e. the Court of Judicial Magistrate Ist

Class, Patti, with one surety each to the satisfaction of the said Court,

within two weeks. The sentence of imprisonment shall remain suspended

28 Nanhakoo v. State of U.P., 2004 (14) A.I.C. 355 at p. 357 (All.) 29 Prakash v State of Madhya Pradesh, 1993 (1) C Cr. J. 175 at p. 176 (M.P.)

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during the period of probation. During the period of probation the

revisionists shall keep peace and be of good behavior. In the case of

breach of any conditions of the bond, the revisionist shall appear before

the Trial Court to receive the sentences and in that case the sentence

already undergone shall be remitted.30

Effect of Sec. 19 of this Act on the applicability of Sec. 360, Cr. P.C.

Section 19 clearly provides that subject to the provisions of Sec.

18, Sec. 562 of the (old) Code of Criminal Procedure, 1898shall cease to

apply to the States or parts thereof in which this Act is brought into

force. On the interpretation of Secs. 18 and 19 of this Act the Apex Court

has held that so far as Sec. 360 of the Code of Criminal Procedure, 1898

is concerned on and from the date of extension and enforcement of the

provisions of Probation of Offenders Act, 1958 to a State powers under

Sec. 562 of the old Code of Criminal Procedure, 1898 and after its repeal

and replacement powers under Sec. 360 of the present Code, cannot be

invoked or applied at all in that State, the view to the contrary is not

legally sustainable.31

After this verdict of the highest Court of the land no other

authority or reasoning is required to say that after the enforcement of the

Probation of Offenders Act, 1958 in any State Sec. 360 of the Code of

Criminal Procedure, 1973, ceases to apply there. Even otherwise Secs. 3

and 4 of Probation of Offenders Act both contain non-obstante clause

having overriding effect. Even Sec. 360, sub-section (10) of the Code of

Criminal Procedure, 1973 accepts the supremacy of this Act and

provides that nothing in this section shall affect the provisions of the

Probation of Offenders Act. In this way too Sec. 360 of the Code of

Criminal procedure, 1973 for all practical purposes should be deemed to

be redundant or non-existent where this Act is in force and in the States

30 Gurbachan Singh v. State of Punjab, 1997 (4) A.I. Cr. L.R. 116 at pp. 116, 117 (P.&H.) 31 State through S.P. v. Ratan Lal Arora, 2004(2) J.C.C. 1053 at p. 1056 (S.C.)

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where Sec. 360 of the Code is not in force for the compliance of Cl. (a) of

Sec. 361 of the Code of Criminal Procedure that Courts have to consider

the applicability of the provisions of Probation of Offenders Act, 1958

only.

Some Courts however, inadvertently or otherwise still applying Sec.

360 of the Code of Criminal Procedure irrespective of the fact whether

Sec. 360 is in force in a particular State or not.

If one looks to the provisions of Cl. (a) of Sec. 361 of the Code of

Criminal Procedure there seems to be no real difficulty. What is intended

by this section simply is that in the ordinary course the Court is

expected to give the benefit either under Sec. 360 of the Code of Criminal

Procedure or under the provisions of the Probation of Offenders Act,

1958 and not under both. This section nowhere provides that giving the

benefit under Sec. 360 of the Code of Criminal Procedure ceases to apply

by virtue of the provisions of Sec. 19 of this Act, no benefit under it can

be given to any accused under the law. The view taken to the contrary is

thus not in accordance with law.

Cases under Essential Commodities Act:

Learned counsel appearing for the appellant convicted under Sec.

7 of the Essential Commodities Act, submits that the accused has no

criminal antecedent. He is the first offender and this is merely a technical

violation of the order requiring taking of licence for dealing in edible oil

seeds etc. Accordingly, he submits that the learned Special Judge

instead of sentencing the accused to undergo Rigorous Imprisonment for

one year and imposing a fine of Rs. 1000 ought to have extended the

benefit of Probation of Offenders Act, 1958. He has drawn the attention

of the Court to the further fact that the incident happened on 9th

January, 1986 and the order of conviction and sentence was recorded by

the learned special Judge on 31st October, 1986. The accused carried on

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appeal to the Orissa High Court in the same year and this appeal is

pending before the Court so long. He, therefore, submits that having

considered this circumstance as well, the Court should extend the

benefit of Probation of Offenders Act, 1958 to the accused. Having

considered the submissions made by the learned counsel for the accused

and in consideration of the fact that the appeal by accused remained

indispose off so far.

Railway Property (unlawful possession) Act, 1966 –

Whether benefit of probation can be extended to persons. –

Provisions of Sec. 360 of the Code of Criminal Procedure and Sec.

4 of the Probation of Offenders Act, 1958 are not mandatory in nature.

The exercise of the power there under is purely discretionary are even if

under Sec. 361 of the Code of Criminal Procedure the Court has to give

reasons for not extending the benefit of Sec. 360 or the Probation of

offenders Act to the accused. Discretion not to be used lightly especially

when accused if found guilty of offence for which minimum sentence is

provided. It is not a rule of universal application that an accused who

has faced protracted criminal proceedings should forthwith be released

on probation of good conduct. Each case has to be judged on its own

merits. Gravity of the offence, manner and circumstances under which

the offence was committed and the character of the offender are some of

the factors which should also be taken into consideration while ordering

the release of the convict on probation of good conduct. The benefit of

probation should not be granted to those matured persons who

deliberately flout the law or such persons were to be released on

probation very object with which the Act was enacted would be

defeated.32

32 Virendra Singh v. State, 1991 J.C.C. 212 at p. 215 (Del.).

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Accused convicted and fought litigation for 20 years - He had a good

career and was dismissed from service - He is entitled to the benefit of the

Probation of Offender Act - In the instant case, the litigation has been

going on for the last 20 years and has been fought tenaciously through

various Courts. It was also told that the appellant who has had a good

career throughout but for this one aberration has since been dismissed

from service on account of his conviction. Therefore, while dismissing the

appeal it was held that the ends of justice would be met if the appellant

be released on probation under Sec. 4 of the Probation of Offenders Act,

1958 on conditions to be imposed by the Trial Court.33

No reduction of sentence and benefit of Sec. 4 of the Probation of Offenders

Act in matters of conviction under Secs. 279 and 304-A of the Indian Penal

Code - All those who are manning the sterring of automobiles,

particularly professional drivers, must be kept under constant reminders

of their duty to adopt utmost care and also of the consequences befalling

them in cases of dereliction, one of the most effective ways of keeping

such derivers under mental vigil is to maintain a deterrent element in the

sentencing sphere.34

The plea about the benefit of probation is not found to be

acceptable in view of the nature of the offence. The accused was about 35

years of age at the time of the accident. There appears no specific reason

for which he may be allowed the benefit of probation. The learned

counsel for the accused has not been able to show any such

circumstances which would entitle the accused to get the benefit of

probation.35

The criminal trial has been hanging on his head like Damocles'

sword for the last 7 years. Accused cannot, however, be released on

33 Paul George v. State of N.C.T. of Delhi, 2008 (2) R.C.R. (Cr.) 478 at p. 482 (S.C.) : (2008) 4 S.C.C. 185. 34 Ranbir singh v. State (N.C.T. of Delhi), 2009(1) J.C.C. 466 at p. 471 (Delhi.). 35 Balwant Singh v. State of Haryana, 1999(1) R.C.R. (Cr.) 54 at p. 56 (P.&H.).

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probation of good conduct as road accidents area on the increase. It is

the duty of the drivers of the heavy vehicles to be careful and

circumspect when they are on highways, while driving, more so when

they are on internal roads. They have to be extra careful, cautious and

circumspect so far as safety of the children, pedestrians and scooterists

etc. is concerned. In this case petitioner brought about the death of a

child aged 10 years by dashing Swaraj Mazda with him when he was on

a point where Swaraj Mazda has no occasion to have been. It is, thus,

not a case where the provisions of Probation of Offenders Act, 1958 or

Section 360 of the Code of Criminal Procedure, 1973 should be brought

into play to the aid of the accused. Releasing such an accused on

probation of good conduct would be putting premium on his criminal

negligence.36

Learned counsel for the petitioner submitted that the petitioner

deserves to be released on probation of good conduct inasmuch as he is

about 50 years old and has been facing the vagaries of the trial for the

last 7 years and he is the sole bread winner of the family comprising his

wife and two minor children. This trial has been hanging on his head like

Damocles' sword for the last 7 years. Petitioner does not deserve to be

released on probation of good conduct as if he had been careful,

circumspect and cautious while driving the truck on a highway, this

ghastly tragedy which is attributable clearly to the rash, negligent and

careless driving of the truck by the petitioner affected three human lives

from the face of this earth in the twinkling of an aye. Petitioner ought to

have known that highways are meant to be used no by truck drivers

alone but by pedestrians, cyclists, scooterists, car drivers etc. Road

accidents are on the increase. Release of the petitioner on probation of

36 Ramesh Kumar v. State of Punjab, 1999(1) R.C.R. (Cr.) 506 at p. 508 (P.&H.).

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good conduct will work only as a let off and it would not have any

salutary effect on him.37

Petitioner faced the agonies of criminal trial before the learned

Magistrate for four years. After he was convicted by the learned

Magistrate, he sought to try his luck before Additional Sessions Judge.

His fate hanged in the balance for about 1-1/4 years before the learned

Additional Sessions Judge where after his appeal was dismissed. He has

thus faced the agonies of criminal trial for five years. It is the duty of the

Court to assure the accused speedy trial. If the Court is not able to

assure the accused speedy trial, it should how some consideration in the

matter of sentence. It was submitted that the petitioner should be

released on probation of good conduct. He cannot be released on

probation of good conduct as his negligence affected three lives from the

horizon. If he had been careful and circumspect in the driving of the bus

this accident could have been averted. Some consideration should,

however be shown to the accused because he has been facing the agonies

of the criminal trial for the last about five years. Trial of this case has

been hanging on his head like Damocles' sword. His sentence was

reduced.38

Accused found guilty of offence under Sec. 304-A of the I.P.C. for

carrying passengers in open truck and causing accident - Not

entitled to benefit of Sec. 4 –

Looking to the facts and circumstances of the case, the manner in

which the death of the deceased was caused, the fact that the accused

was carrying the passengers in flagrant violation of rules in an open

truck which was not meant for carrying passengers and in order to curb

37 Nirmal Singh v. State of Punjab, 1999(2) R.C.R. (Cr.) 322 at p. 323 (P.&H.). 38 Mohinder Singh v. State of Punjab, 1999 (2) R.C.R. (Cr.) 18 at p. 19 (P.&H.).

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such practices, it was held that it is not a fit case in which the benefit of

Probation of Offenders Act, 1958 should e extended to the accused.39

The offence under Sec. 304-A of the Indian Penal Code comes

within the purview of the provisions under the Probation of Offenders

Act, 1958. In the instant case, having regard to the facts and

circumstances of the case, benefit of the Probation of Offenders Act, 1858

cannot be given to the accused, even though in case arising out of

offence under Sec. 304-A of the Indian Penal Code, benefit of probation

could be given. The request made for giving benefit of the Probation of

Offenders Act, 1858 to the accused was not accepted.40

Accident caused by rash and negligent driving causing death - Request for

probation turned down - Those who are starring must bear in mind that

they have to drive vehicles safely so as to see that lives of the passengers

and persons on the road are not endangered because of rash and

negligent driving on public road. It is not a case of just an accident or an

error of judgment. If that would have been so, there would have been no

question of sentencing the accused. Here, the accused was driving in a

rash and negligent manner. Though brakes were required to be applied

for avoiding an accident, the accused has not applied the brakes. Under

the circumstances, benefit of probation cannot be granted.41

In the instant case, the reasons which have been given by the

learned Additional Sessions Judge, Ropar, are not only unconvincing but

against the recognised dictum of the Hon'ble Supreme Court. No doubt,

the object of the law is not only to punish an offender but also to reclaim

him but the point for determination is whether to extend the benefit of

probation. Probation should not have granted when the respondent was

responsible for taking the lives of 3 persons while driving the bus in a

39 Munna Khan v. State of M.P., 2004 Cr. L.J. 525 at p. 529 (Chhatis.). 40 Bharat Pandharinath v. State of Maharashtra, 2004 Cr. L.J. 205 at p. 207 (Bom.); contra Manohar Lal v. State of Punjab, 2004(1) R.C.R. (Cr.) 656 at p. 657 (P.&H.). 41 State of Gujarat v. Abdul Karim C. Mansur, 1999(3) 40 Guj. L.R. 1905 at p. 1912.

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rash and negligent manner and was responsible for a head-on collision

resulting into the death of 3 persons. The persons who drive the heavy

vehicles especially on public highways, shall be very careful to ensure

that other persons have also the right to use the public way.

Day in and day out one come across accidents on the public

highways at the hands of negligent persons like the respondent. Such a

person does not deserve the benefit of probation irrespective of the fact

that he might lose the job and his conviction and sentence may prove a

hardship to his family. In such like cases if probation becomes a matter

of routine on the part of Subordinate Courts, the spirit of justice will flee

from the law Courts itself. There is no substitute to human life. It cannot

be bartered away by giving probation. No one can fix any rigid

parameters by stating that in all cases under Secs. 279/304-A of the

Indian Penal Code the probation should not be granted to any person at

all. There can be cases where the actor of negligence can be attributed to

the deceased or the family of the deceased might have been suitably

compensated by the MACT or by the accused. A very large family of the

accused can also be one of the considerations in granting probation in a

case under Sec. 304-A of the Indian Penal Code where there is one death

and the family of the victim is properly compensated. The illustrations

given above are not exhaustive but only enumerative. So far as the

present case is concerned Mrs. Sabina, Additional Sessions Judge,

Ropar, has sent all the legal propositions on this subject in the wind. The

order cannot be condoned or sustained from any angle.42

Rash and negligent driving of the trucks by them resulted in loss of

one human life and injuries to others. Release on probation of good

conduct is sometimes taken as let off and not in the spirit in which the

42 State of Punjab v. Gurbachan Singh, 1999(2) A.I.Cr. L.R. 407 at p. 408 (P.&H.).

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Probation of Offenders Act, 1958 was enacted and Secs. 360/361 of the

Code of Criminal Procedure, 1973 were incorporated.43

Benefit of probation not available to person convicted under Secs.

279/304-A of the I.P.C. - The benefit of Probation of Offenders Act, 1958

or that of Sec. 360 of the Code of Criminal Procedure, 1973 should not

be extended to those convicts who are responsible for commission of the

offence under Secs. 279/304-A of the Indian Penal Code as a human life

is lost in the process of rash and negligent act committed by the accused.

The scales of justice are supposed to be kept at par lest the faith of the

people may be evaporated from the criminal justice. Once the offence is

proved it is the duty of the Criminal Courts to ward punishment

according to the law. Therefore, the order of the Additional Sessions

Judge granting probation of the respondent was set aside and it was held

that the petitioner shall serve the substantive sentence of 8 days.44

(xiii) A word of advice and direction from the Apex Court - Role of

trial Courts in cases of deaths by road accidents - In the case noted below,

the Apex Court has observed as follows:

"Bearing in mind the galloping trend in road accidents in India and

the devastating consequence visiting the victims and their families,

Criminal Courts cannot treat the nature of the offence under Sec. 304-A

of the Indian Penal Code as attracting the benevolent provisions of Sec. 4

of the probation of offenders Act, 1958. While considering the quantum

of sentence, to be imposed for the offence of causing death by rash or

negligent driving of automobiles, one of the prime considerations should

be deterrence. A professional driver pedals the accelerator of the

automobile almost throughout his working hours. He must constantly

43 Mohan Singh v. State (Union Territory, Chandigarh), 1999(2) A.I.Cr. L.R. 411 at p. 413 (P.&H.). 44 State of Punjab v. Tilak Raj, 2002 (4) R.C.R. (Cr.) 855 at p. 856 (P.&H.); State of Himachal Pradesh v. Varinder Singh, 2002 (2) R.C.R. (Cr.) 487 at p. 492 (H.P.).

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inform himself that he cannot afford to have a single moment of laxity or

inattentiveness when his leg is on the pedal of a vehicle in locomotion.

He cannot and should not take a chance of thinking that a rash driving

need not necessarily cause any accident or even if any accident occurs it

need not necessarily result in the death ensures he might not be

convicted of the Court. He must always keep in his mind the fear psyche

that if he is convicted of the offence or causing death of a human being

due to his callous driving of vehicle he cannot escape from jail sentence.

This is the role which the courts can play, particularly at the level of Trial

Courts, for lessening the high rate of motor accidents due to callous

driving of automobiles."

Thus, bestowing serious considering on the arguments addressed

by the learned counsel for the appellant the Apex Court expressed its

inability to lean to the benevolent provision to Sec. 4 of the Probation of

Offenders Act, 1958.45

5.4 Probation Law and Judicial Attitude

The first thing to be taken note or her is that the use of probation

has not been made as adequately and properly by the lower courts in

India as is possible under the probation offenders act and CrPC.

In Musakhan v/s state of Maharashtra A.I.R.* 1958.46 The

supreme court pointed out that though the provisions of sec. 6 of the

probation offenders act were mandatory. The court's did not appear to

make wise use of probation provision which was necessary to protect our

younger generation from be coming professional criminals and there fore,

a menace to society.

45 State of M.P.v Narendra Kumar Haridas deshlahare, 2001 (1) A.I. Cr. L.R. 747 at p. 748. (S.C.) 46 Musakhan v/s state of Maharashtra A.I.R.* 1958

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So far as higher utility is concerned some what greater enthusiasm

in fovouring probation laws is noticeable.

Ratan lal v/s State of Punjab AIR 197747 is a good example of

liberal approach were subba Rav gave retrospective applicant to the govt.

retrospective application to the probation of offenders. Act which had

been notified in a application to the probation offender act which district

a few months after the conviction of the repellent.

In Abdul Quaem V/s state of Bihar48 the appellant was only 16

year of age at the time of his conviction for the offence of the theft of Rs.

56/- which he had committed by pick repeating. He was given six

month's rigorous imprisonment and a probation order was refused in

spite of the fact that the probation officer had recommended it. The trial

court observed:-

In spite of his recommendation I do not feel in dined to extend the

benefit of the provisions of the probation of offenders act to the accused

payment. But here lose wet deserve the benefit of sec. 4 of the act.

The appeal and the revision petition having been rejected by the

Patna High court. The appellant finally came to supreme court which

upheld the appeal and divested the trial court to place him on probation

on the ground covered in following observation.

The Decision in Uttam Singh V/s state of Delhi49 is, on the other

hand, somewhat heart and debatable nature. The appellant was

convicted under sec. 292 1 PC for being in possession for the purpose of

sale, three packet of playing cards with obscene photograph and

sentenced to six month rigorous imprisonment and a fine of Rs. 500/-.

5.5 Public Welfare Offences and Probation

The Judiciary has taken shifting stands in administering probation

law to public welfare offences such as food adulteration, smuggling and

47 Ratan Lal V/s State of Punjab AIR 1977. 48 Abdul Quem V/s State of Bihar, AIR 1972, SC 21. 49 Uttam Singh V/s State of Delhi, AIR 1977 (1), SCC 103 pg.

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violation of customs and excise laws, etc. A chronological survey of the

cases relating to public welfare offences would bear testimony to the fact

that till early seventies the courts responded favourably to the inclusion

of these offences within the purview of the probation law and were quite

liberal in admitting such offenders to the benefit of probation regardless

of the age and nature of the offence. This trend is clearly discernible

from the case law discussed in the succeeding pages.50

In public Prosecutor V. Nalan Suryanarayanamurthy51, the High

Court of Andhra Pradesh taking a strict view held that in a case where

the activity of the accused was distinctly anti-social, it would not be

expedient to release the offender on probation. The accused in this case

was found guilty of the offence under Section 7 read with Section 16 of

the prevention of food Adulteration Act, 1954.

The Supreme Court took a firm stand in disallowing the benefit of

probation to cases involving smuggling activities. Thus in Maharasthra

V. Natwar Lal52, the Court refused to extend the benefit of probation Act

to a Act, 1962 because smuggling of gold not only affects public revenue

and public economy but it is also a menace to society.

The above contention also finds support in the Supreme Court

decision in State of Maharashtra V. Kapoor Chand Kesarmal Jain53. In

this case the appellant aged 24 years at the time of occurrence of crime,

was tried for the offence of smuggling of gold and convicted by the trial

court. On appeal, the High Court ordered the appellant to be released on

probation for the reason that the gold recovered from his possession had

already been confiscated and that the had stood trial for a long period of

more than seven years and that he was financially not in a position to

pay the fine imposed on him. The State of Maharashtra, however went in

50 Criminology and penology, Chapter Probation of Offenders – Dr. N.V. Paranjape, 10th Ed. reprinted 2000, pg. 324. 51 AIR 1972 (2), APLJ 313 pg. 52 AIR 1980, SC 593. 53 AIR 1981, SC 927.

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appeal to the Supreme Court against this judgment of the High Court.

Allowing the appeal, the Supreme Court observed that keeping in view

the nature of the offence, the character of the accused and the

circumstances under which the offence was committed it was not

desirable to allow the benefit of probation law to such professional

offenders.

An appraisal of the aforesaid case involving socio economic

offences would reveal a remarkable change in the attitude of courts

towards these crime. The courts, while accepting in principle the need

for liberal application of probation law, have not lost sight of the dangers

involved in mild treatment of socio-economic offenders. These offenders

in matters of punishment because of peculiar nature of their offence and

the consequence flowing therefrom. These offences being injuriouis to

public at large, need to be tackled sternly. Commenting on this aspect,

Mr. Justice V.R. Krishna Iyer, the former Judge of the Supreme Court of

India observed:

"Economic offences are often subtle murders practised on the

community, sabotaging the national economy. They have to be

tackled with a new seriousness.54

(vii) Cases under Central Reserve Police Force Act:

It is not disputed that for an offence punishable under Sec. 10 of

the Central Reserve Police Force Act, 1949, the sentence provided is one

year with fine entitling the respondent to claim the benefit of Sec. 3 of the

Probation of Offenders Act. It transpires that both the Appellate as well

as the High court, after passing the order of conviction and sentence and

having regard to the circumstances of the case including the nature of

the offence and character of the offender, thought it is expedient to take

a lenient view and instead of sending him to jail opted to pass a sentence

till the rising the Court. And in this context directed that the order of

54 V.R. Krishna Iyer – Law, freedom and change (1975), pg. 88.

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conviction and sentence would not adversely affect the service career of

the accused. The revision filed against the order in appeal impugning the

aforementioned directions was dismissed by the Allahabad High Court

with the observation that such directions could be issued by the

Appellate Court under Cl. (e) of Sec. 386 of the code of Criminal

Procedure. Against the said finding the matter was taken to the Supreme

Court by filing S.L.P. on behalf of the respondent it was conceded that

the Appellate Court or High Court had no jurisdiction to pass the

impugned order in terms of Sec. 386 of the Code of Criminal Procedure

and submitted that the impugned order may be treated to have been

passed under the Probation of Offenders Act, 1958.

5.6 Discretion of Court

Suspension of sentence or probation cannot be demanded as a

matter of right, but generally rests within the sound discretion of the

Court.

A suspension of execution of sentence or probation under statutory

authority, comes as a privilege or act of grace, and cannot be demanded

as a matter of right,55 or on certain terms,56 The granting or refusing of

55 Berman v. U.S., N.Y. 58 S.Ctr. 164:302 U.S. 211:82 L.Ed. 204, reversing C.C.A., U.S. v. Berman, 88 f. 2d. 645, certiorarigranted, Berman v. U.S., 57S. Ct. 924: 301 U.S. 675: 81 L.Ed., 1336, Escoe v. Zerbst, Kan., 55S.Ct. 818:295 U.S. 490: 79 L Ed. reversing C.C.A., 74 F. 2d. 924, certiorari granted 55 S Ct. 640:294 U.S. 704:79 L Ed. 1240:U.S. ex rel. Demarois v. Farrell, C.C.A., Minn. 87 f. 2d. 957, motion denied Demarosis v. Farrell, 58 S Ct. 31:302 U.S. 683:82 L Ed. 527; re-hearing denied 52 S.Ct. 135:302 U.S. 775:82 L Ed. 600; Burns v. U.S. Cal., 59 F. 2d 721, certiorari granted 53 S.Ct. 92:287 U.S. 585:77 L. Ed. 511, and affirmed 53 SCt. 154:287 U.s. 216:77 L.Ed. 266; People v. Hainlire, 28 P. 2d 16: 219 Cal. 532; People v. Leach, 71 P. 2d 594: 22 Cal. Ap 2d. 525; People v. Blankenship, 61 P. 2d. 352: 16 Cap. App 2d. 70 So. 609:138 La 682; State ex rel Jenks v. Municipal Court of City of St. Paul, 266 N.W. 433: 197 Minn 141; Copper v. State, 168 So. 53: 175 Miss 718: Ex parte Mounce, 269 S.W. 385:307 Mo 40: People v. Kastel, 17 N.Y.S. 2d 418:172 Misc 784; State v. Uttke, 234 N.W. 79:60 N.D. 377; State v. skinner, 238 N.w. 149: 59 S.D. 68. 56 People v. Blankenship, 61 P. 2d 352: 16 Cal. App. 2d. 606, Waiver of right - An application for a suspension of sentence in order to enable accused to prosecute error is a waiver of any right to apply at a later date for an indefinite suspension or a

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the suspension of execution of sentence,57 or the granting or refusing of

probation,58 in case covered by the stature generally rests within the

sound discretion of the court.

This discretion is to be exercised primarily for the benefit of

organized society, and only incidentally for the benefit of accused,59 and,

although it may appear unnecessary to inflict the punishment for the

purpose of preventing a repetition of the crime by accused, a suspension

may be refused where it would be an invitation to persons similarly

situated to commit similar crimes.60 Sentence may be suspended and

accused placed on probation when it appears to the satisfaction of the

Court that the ends of justice, and the best interests of the public as well

as accused, will be served thereby,61 and, although no hard and fast rule

suspension during good behaviour, subject to the terms of probation provided by law-State v. Vourron, 18 Ohio N.P.N.S. 581. 57 Ex parte YOung, 10 P 2d. 154:121 Cal. App. 711; State v. Fjolander, 147 N.W. 273: 125 Minn 529; cooper v. State, 168 So. 53:175 Miss 718; State v. Uttke, 234 N.W. 79:60 ND. 377; State v. Skinner, 238 M.w. 149:59 S.D. 69. 58 Birnbaum v. U.S., CCA Md., 107 F. 2d. 885: 126A.L.R. 1207; Pernatto v. U.S., C.C.A.N.J., 107 F. 2d. 372; Evans v. District Jduge of U.S. for Western Dsitrict of Tennessee, C.C.A. Tenn, 12 F. 2d. 64; People v. Superior Court in and for Imperial Country, 284 P. 451:208 Cal. 692; People v. Yuen, 89 P. 2d. 438: 32 Cal. App. 2d. 151, hearing denied 90 P. 2d 291: 32 Cal. App. 2d 151, certiorari denied Yeun v. People of State of California, 60 S. Ct. 115; People v. Henry, 72 P. 2d. 915: 23 Cal App. 2d. 155; People v. Leach, 71 P. 2d. 594: 22 Cal. App. 2d 525; People v. Hopper, 66 P. 2d. 459: 20 Cal. App. 2d. 108; People v. Blankenship, 6 P. 2d. 352: 16 Cal. App. 2d. 606; People v. Dunlop, 150 P. 389: 27 Cal. App. 460; Rode v. Baird, 148 N.E. 406: 196 Ind. 335, denying re-hearing 144 N.E. 415: 196 Ind. 335; Petition of Gabis, 134 N.E. 267: 240 Mass 465; People v. Good, 282 N.w. 920: 287 Mich 110; People v. Fischer, 212 N.W. 70: 237 Mich. 504. Much latitude is allowed to District Judges in enforcing the Federal Probation Act; Reeves v. U.S., C.C.A. Iowa, 35 F. 2d 323; Riggs v. U.S., C.C.A.W.Va., 14 E. 2d 5, certiorari denied 47 S.Ct. 110: 273 U.S. 719: 71L Ed. 857 and Riggs v. Workman, 47 S.Ct. 110: 273 U.S. 719: 71 L.Ed. 857. Refusal of probation held not abuse of discretion. (1) Where the sentences were not harsh or excessive, and the record clearly indicated that defendants were guilty and disclosed no valid reason on which they could base a plea for probation - People v. Yuen, 89 P. 2d 438:32 Cal. App 2d. 151, hearing denied 90 P. 2d. 291:32 Cal. App. 2d 151, certiorari denied Yuen v. People of State of California, 60 S.Ct. 115. 59 State v. Skinner, 238 N.W. 149:59 S.D. 68; State v. Zolantakis, 259 P. 1044. 70 Utah 296: 54A. L.R. 1463. Not inherently judicial power - State v. Skinner, 238 N.W. 149:59 S.D. 68. 60 Commonwealth v. Greaser, 14 Pa. Dist. & Co., 618. 61 U.S. v. Levy, D.C. Wash 49 F. 2d. 811; U.S. v. Gargano, D.C. La 25 F. 2d. 723; Archer v. Snook, D.C.Ga, 10 F. 2d 567. "Ends of justice", and hence "best interests of the

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as can be land down as to the type of offender who may be considered for

probation, the act generally is designed to benefit those who through

ignorance, youth, inexperience, or weakness of will have been guilty of

infarctions of the law,62 and it should not be extended to mature persons

who commit premeditated crimes,63 or, except in very rare cases, to

hardened, habitual criminals.64 No fact or circumstance which is not in

consonance with the purpose of the act, to effect a reform and avoid the

contamination of time in prison, will be considered as a ground for

probation.65 It is not a ground for probation that a majority of the jurors

who convicted accused recommended leniency,66 or that accused is in

imperfect health, unless it is shown that imprisonment might result in a

dangerous condition or in a condition that might be fatal,67 or that

accused convicted of possessing illegal drugs was possibly guilty only as

accessory,68 or that accused convicted of embezzlement, was insolvent or

that hardship would result to his family.69

As a general rule, the power to grant a suspension of execution of

sentence or place accused on probation should be exercised strictly in

public", within probation law require preservation of proper balance between rights of all people to have laws enforced and constitutional rights of individuals - U.S. v. Nix., D.C. Cal. 8 F. 2d 759. 62 U.S. v. Johnson, D.C. Cal. 56 F. 2d 658; U.S., Nix. D.C. Cal. 8 F. 2d 759 at p. 760. "Congress in passing the Probation , had in mind particularly juvenile offenders, youthful offenders, first offenders, and offenders whose release on probation will not endanger the public, and where there is reason to believe that the individual will make a serious effort to overcome the abnormalities sand difficulties which brought him into Court. In general, the offence contemplated ..... would be largely those of a more or less minor character, or those induced by youth, inexperience, mental abnormalities, physical abnormalities, ignorance, poverty, superstition, jealously, or heat of passion" - U.S. v. Daniels, D.C. Cal. 27 F. 2d. 335. 63 U.S. v. Johnson, D.C. cal. 56 F. 2d. 668; U.S. v. Young, D.C. Cal. 17 F. 2d. 129. 64 U.S. v. Nix, D.C. Cal. 8 F. 2d. 759. 65 U.S. v. Johnson, D.C. Cal. 56 F. 2d. 658; U.s. v. Nix, D.C. Cal. 8 F. 2d.759. 66 U.S. v. Nix, D.C. Cal. 8 F.2d. 759. 67 U.S. v. Johnson, D.C. Cal. 56 F. 2d. 658; U.S. v. Meagher, D.C. Mont. 36 F. 2d 824; U.S. v. Davis, D.C. La. 17 F. 2d. 777. 68 U.S. v. Davis, D.C. La. 17 F. 2d. 777. 69 U.S. v. Meagher, D.C. Mont., 36 F.2d. 824.

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uniformity with the statutory provisions,70 although the order granting

suspension or probation will not be held invalid because of a mere

informality or irregularity therein.71

A suspension or probation be continued from time to time,72 and

ordinarily may be granted, only after due notice and hearing,73 which

may on publication by pronouncement in open Court or on the records

thereof.74 All of the facts and circumstances of the crime and the of the

character and life of accused, irrespective of whether they are disclosed

by the evidence in the case or by other proper means, may be considered

by the Court in the determining whether to grant or deny probations,75

but if accused did not testify and explain his connection with the charge

during the Trial he cannot explain his part in the transaction on his

application for probation.76 Such acts and circumstances, however, do

no affect the Court's jurisdiction to hear and determine an application for

70 Ex parte Slattery, 124 P. 856: 168 cal. 176; People v. Wallach, 47 P. 2d. 1071:8 Cal. App 2d 129; Ex parte Clark, 234 P. 109:70 Cal. App 643; Ex parte Thornberry, 254 S.W. 1087: 300 Mo. 661; Howe v. State ex. rel Pyne, 98 S.W. 2d. 93:170 Tenn. 571. 71 Ex parte Slattery, 124 P. 856: 163 Cal. 176; People v. Wallach, 47 P. 2d. 1071: 6 Cal. App. 2d.129. Failure to certify-Duty of clerk of Court to certify commitment and order of suspension of sentence to state board of prison commissioners is purely ministerial, and failure to perform duty, and failure of board to prescribe any rules for accused during probationary period, could not effect accused's status-State v. District Court of First Judicial District in and for Lewis and Clark Country, 233 P. 974:72 Mont. 374. 72 Alcorn v. Fellows 127 A. 911: 102 Conn. 22. A placing on probation generally requires an extensive investigation to be made by competent officers of the Government - U.S. v. Nix, D.C. Cal. 8 F.2d. 759. 73 State ex rel Clum v. Municipal Court of Cleveland, 5 N.E. 2d 489: 132 Ohio St. 147, affirming 5 N.E. 2d. 944: 53 Ohio App. 512. 74 Alcorn v. Fellows 127 A. 911: 102 Conn. 22. Entry on file in Judge's own home without notice or hearing is not sufficient - Alcorn v. Fellows, 127 A. 911: 102 Conn. 22; Oral orders suspending sentences where those accused pleaded guilty, were not valid or conclusive - State v. Card, 268 P. 869: 148 Wash 270: 59 A. L.R. 519. Oral remarks of Judge to Sheriff, in passing sentence on accused, to "watch after her, and, if he had further trouble to take her to if she is a chain gang" cannot be construed as placing her on probation-Conley v. Pope, 131 S.E. 168:161 Ga 462. Jutice's seizure and destruction of mittimus and declaration that jail sentence pronounced by him was suspended and country jail outside geographical limits of his Criminal Jurisdiction and without notice or hearing did not suspend sentence- Alcorn v. Fellows, 127 All. 911:102 Conn. 22. 75

People v. Freithofer, 284 P. 484: 103 Cal. App. 165. 76 U.S. v. Nix, D.C. Cal. 8 f. 2d. 759.

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probation on its merits,77 for is such jurisdiction affected by the principle

that all concerned in the commission of a felony are regarded as

principals.78

An order suspending the major part of the sentence has been held

equivalent to placing accused on probation, but a mere finding that

sentence should be imposed and that such sentence should be

suspended does not operate to suspend the sentence before it is

pronounced.79

The granting of probation generally is no part of the Trial of the

cause,80 into in any way incident thereto, as respects the power of a

Judge sitting as a Special Judge.81 Under some statues however the

suspension of sentence or probation is included in and becomes a part of

the judgment,82 but under a statutory provision that disposition of the

matter of probation must precede the imposition and execution of

sentence, a suspension of sentence and probation order cannot be made

as a part of the order of sentence,83 and a statutory provision that as a

condition of probation the probationer may be required immediately to

serve a period of jail imprisonment has no bearing on the validity of such

order, since the suspended sentence imposed purports to be a final

sentence.84

77 People v. Freithofer, 284 P. 484: 103 Cal. App. 165. 78 Ibid. 79 Sheffild, In re, 63 P. 2d. 829: 18 Cal. App. 2d. 199. 80 Varish v. State, 163 N.E. 513: 200 Ind. 358. A finding of guilt, starting the sentence that should be imposed and that such sentence should be suspended during good behaviour and continuing the cause for judgment, is merely a finding and not a judgment and sentence does not begin to run from the date thereof, and therefore it does not operate to suspend a sentence before that sentence is pronounced, as the recital in the finding purporting to suspend the execution of the sentence need not be followed in the subsequent judgment - Varish v. State, 163 N.E. 513:200 Ind. 358. 81 State ex rel. Gentry v. Montgomery 297 S.W. 30:317 Mo. 811; State ex rel. Browning v. Kelly, 274 S.W. 731: 309 Mo. 465. 82 State ex rel. Browning v. Kelly, 27 S.W. 731:309 Mo. 465. 83 People v. Good, 282 N.W. 920: 287 Mich. 110. 84 Ibid.

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The refusal of an application to enter nunc pro tunc an order of

suspension adjudicates conclusively that no such order was made; and

such an adjudication cannot be impeached collaterally, but if erroneous

the proper remedy is to prosecute error there from.

A Magistrate must exercise great care in selecting cases of probation:

1. To place persons on probation where the circumstances do not

justify it imposes an unfair burden on the Probation Officer and

brings discredit on the system;

2. In addition to consideration the past history and past and present

surrounding of the offender, a magistrate must take into account

the offence which has brought the offender before the Court;

3. Where an offender has already been placed on probation without

successful result, a Magistrate should act with great caution before

again placing him on probation;

4. If the offender does not really stand in need of a period of

supervision on probation, or if the offence is trivial and may e

considered as finally closed, it will probably be found better to

dismiss the case or to inflict a nominal punishment; since it is, of

course, undesirable to burden Probation Officer with unnecessary

cases.85

Probation should be applied in special cases and for special

reasons.86An accused cannot as of right claim the benefit of this section.

The exercise of power under the section is entirely in the discretion of the

Court.87 The exercise of discretion given to the Court under this section

needs a considerable sense of responsibility and the Courts should not

85

Emperor v. Alia, A.I.R. 1930 Lah. 259 at p. 260:31 Cr. L.J. 348. 86

Akhtar Munr v. Emperor, A.I.R. 1937 Pesh 51:238 Cr. L.J. 610:168 I.C. 783. 87

Surendra Nath Banerjee v. Dhirendra Nath Dhar, A.I.R. 1929 Cal. 785 at p. 785; Emperor v. Ahmad Haji

Sadik, A.I.R. 1941 Sind 109:42 Cr. L.J. 630:194 I.C. 833.

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allow themselves to be misled into the use of this section by misplaced

leniency and sympathy.88

Since, the sword of sentence remained hanging over the head of

the petitioners since the year 1986 till date and they have already

suffered a lot on account of the criminal proceedings pending against

them and they have already undergone one month and fifteen days of

sentence, therefore, there is no justification to send them again in the jail

in the peculiar circumstances of the case and lenient view deserves to be

taken in their favour.89

Courts must appreciate the desirability of avoiding sending an

offender to prison for an offence which is not a of a serious character,

and thereby running the risk of turning him into a regular criminal. In

applying the provisions of this section it is better to err (if err one must)

on the side of liberty.90 IN the case of an offender under fifteen the Court

may deliver him to his parents with or without sureties for his future

good behaviour.91 Before passing an order under this section the Trial

Court should guard against the danger to the public and danger to the

accused himself that may result from misplaced leniency and

sympathy.92

Burglary is a serious offence. It is seldom that a burglary is

detected. Whenever such a case is detected the person concerned must

be given a deterrent sentence.93 Where an offender is found to have

deliberately committed perjury intending to screen the offender, a

Magistrate is not right in dealing with him under this section. Perjury is

far too rife for any such leniency.

88

Emperor v. Jhangi, A.I.R. 1933 Sind 44 at p. 44:34 Cr. L.J. 420:27 S.L.R. 34:142 I.C. 544. 89

Raghunath v. State of Haryana, 2007(4) R.C.R. (Cr.) 784 at p. 785 (P.&H.). 90

Mohammed Hanif v. Emperor, A.I.R. 1942 Bom. 215 at pp. 215, 216: 43 Cr.L.J. 754:44 Bom. L.R. 456. 91

Abdul Aziz v. Emperor, A.I.R. 1917 All. 420 at p. 421:14 A.L.J. 1158:17 Cr. L.J. 524:I.L.R. 30 All. 141. 92

Daryalal v. Emperor, A.I.R. 1925 Sind 75 at p. 76:18 S.L.R. 61:82 I.C. 152. 93

Emperor v. Sardara, A.I.R. 1932 Lah. 258 at p. 258:33 Cr. L.J. 500:33 P.L.R. 218.

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Since the offence of Sec. 409 of the Indian Penal Code is

punishable with imprisonment for life or imprisonment and fine,

therefore, the accused should not be released on probation of good

conduct.94 The Act cannot be applied to grave offences such as arson

under Sec. 436 of the Indian Penal Code, which is punishable with

transportation for life.95 So is the position in cases under Sec. 394 of the

Indian Penal Code.96

Section 4 of the Act does not apply to a person who is convicted of

an offence punishable with death or imprisonment. The offence under

Sec. 376 of the Indian Penal Code, is punishable with imprisonment for

life.97

The application of this section is not illegal if the offence is one

punishable only under Sec. 304(2) of the Indian Penal Code, but it was

held inappropriate in Public Prosecutor v. Madathi.98

To apply this section to all first offences of drunkenness is neither

the intention of law nor will it be consistent with the sense of

commonsense. Nor can all first offenders claim action under this section.

Thus a man committing murder for first time cannot invoke the aid of

this section, nor can normally offences under Probation of Offenders Act,

1958 can be properly dealt with under the present section. There will, of

course, be exceptional cases, as for instance, when a father or mother

makes a son or daughter just past 14 years or even 18 years drunk. But

in all such cases, the antecedents of the offenders and the circumstances

of the offence must be considered individually and not in a kind of

omnibus fashion.99

94

State v. Sheo Shankar, A.I.R. 1956 All. 326 at p. 328. 95

Subbaratnam. In re, A.I.R. 1940 Mad. 663 at p. 666:50 Cr.L.J. 950. 96

Emperor v. Bakhsha, A.I.R. 1934 Lah. 131 at p. 132:36 Cr.L.J. 105. 97

Mustaq v State, A.I.R. 1954 All. 580 at p. 582:1954 A.W.R. (H.C.) 454. 98

A.I.R. 1942 Mad. 415 at p. 416:1942 M.W.N. 169:201 I.C. 444:(1942) 1 M.L.J. 224. 99

Kunda Papanna, In re, A.I.R. 1953 Mad 877 at p. 878:(1953) 1 M.L.J. 492.

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The present section should not be applied to the case of people

discovered with cocaine and other dangerous drugs upon them in

defiance of the Excise Act, it being almost certain that in all these cases

the occasion on which they have been discovered in possession of

cocaine is not really the first time they have been in such possession.100

5.7 Applicability of the Act- The New Challenge

Modern criminal jurisprudence recognizes that no one is a born

criminal and that a good many crimes are the product of socio-economic

milieu. The present trend in the field of penology is that effort should be

made to bring about correction and reformation of the individual

offenders and not to resort retributive justice.4

In a case of protracted criminal proceedings the Supreme Court

was of the view that as the matter pertains to the year 1965 and as the

appellant since then has had to face protracted criminal proceedings, it

would not seem proper to send the appellant to jail. It was considered to

be a fit case in which the order of the Additional Sessions Judge by

which he directed that the appellant be bound down under Sec. 4 of the

Probation of Offenders Act, 1958 be restored.5

The benefit of U.P. Children Act, 1952 should not be refused on

technical grounds. So, instead of Probation of Offenders Act, 1958, the

benefit of U.P. Children Act, 1952 ought to have been afforded to the

accused.6

(i) Offences under Drugs and Cosmetics Act :

It is true that offences under the Drugs and Cosmetics Act are

menace to public health. The Act takes a serious note of the widespread

anti-social evil practised by some people in infringing the provisions of

100

Emperor v. Timman, A.I.R. 1930 All. 19 at p. 19(1): 31 Cr.L.J. 32. 4 Rajoo v. State of Rajasthan, 1977 Cr. L.J. 837 at p. 843 (Raj.). 5 Ghanshyam Das v. Municipal Corporation of Delhi, 1975 Cr. L.J. 753 at p. 753: A.I.R. 1975 S.C. 845. 6 State of U.P. v. Surjeet Singh, 2005(3) R.C.R. (Cr.) 283 at p. 285 (All.).

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the Act and it was in this view of the matter that the Legislature

prescribed the minimum imprisonment for one year which can extend

upto ten years as contemplated by Sec. 27 (a) of the Act. The Act was

already on the Statute Book when the Probation of Offenders Act was

passed in 1958. The Legislature at the time of passing the Probation of

Offenders Act was aware of the provisions of Sec. 27 (a) (ii) of the Drugs

and Cosmetics Act. The Legislature in its wisdom chose not to apply the

provisions of the Probation of Offenders Act in respect of cases

enumerated in Sec. 18 of the Probation of Offenders Act and in a case

where the offender was found guilty of having committed an offence

punishable with death or transportation for life. In the premises it was

held that the provisions of Sec. 4 of the Probation of Offenders Act were

available to the Court when the Court thought that instead of sentencing

the offender to punishment it was expedient to release on probation of

good conduct on entering into a bond.3

In the instant case also the accused was convicted for offence

under Drugs and Cosmetics Act. He faced trial for 15 years.

Consequently, granting the benefit of Probation of Offenders Act, 1958,

the substantive sentence awarded to the petitioner was set aside by the

High Court and instead he was ordered to be released on probation for a

period of one year of his entering into a bond in the sum of Rs. 5000 with

one surety in the like amount to the satisfaction of the Trial Court. The

petitioner was also ordered to pay a sum of Rs. 5000/- as costs of the

proceedings. The bonds to be submitted would be without the

supervision of Probation Officer.4

(ii) Offences under (State) Excise Acts :

Dealing with a case under Karnataka Excise Act, Karnataka High

Court held that there can hardly be any doubt that despite the fact that a

3 State (Delhi Administration) v. Om Prakash, 1975 Cr. L.J. 177 at pp. 180, 181. 4 Pawan Kumar Bansal v. State of Haryana, 2004 (2) R.C.R. (Cr.) 325 at p. 327 (P. & H.).

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minimum sentence of three months' of Rigorous Imprisonment and a fine

of not less than Rs. 100 is prescribed by the Karnataka Excise Act for a

person found guilty of the offence under Sec. 32 of the Karnataka Excise

Act, the Court can still resort to the provisions of the Probation of

Offenders Act, 1958, if the conditions required for the application of

those provisions exist.1

In a case of conviction under Sec. 61 (f) of the Tamil Nadu Excise

Act, in regard to the question sentence it was submitted that the accused

was a first offender, that he was the only bread-winner of his poor family

and therefore, the Court may be pleased to invoke the provisions of the

Probation of Offenders Act, 1958. Having regard to this facts and

circumstances of the case and the submissions on his behalf, the Madras

High Court set aside the sentence of imprisonment imposed on him and

instead directed that he be released under Sec. 4(1) of the Probation of

Offenders Act, 1958.2

Considering a case under Punjab Excise Act, Punjab High Court

has held that the Probation of Offenders Act, 1958 is meant for the

offenders in whose case, there is likelihood of some reformation but if the

petitioner seemed to be dealing on a large scale in the anti-revenue and

illegal activity and a huge quantity of 144 bottles of denatured spirit was

found in the possession of the petitioners, it cannot be said that it is a fit

case to release the petitioners under the provisions of the Probation of

Offenders Act, 1958.3

Petitioner was convicted under Sec. 61 of the Punjab Excise Act

regarding the recovery of 70 bottles of illicit liquor - Allowing his prayer

for probation the Punjab and Haryana High Court held that this Court

in the case of Gurmail Singh and Others v. State of Punjab4, ordered

the release of the accused on probation in a case relating to an

1 Rahmatulla v. State, 1978 Cr. L.J. 106 at p. 111 (Knt.). 2 Oil, In re, 1976 Cr. L.J. 1339 at pp. 1339, 1342. 3 Inderjit Diwan Chand v. State of Punjab, 1978 Cr. L.J. 1327 at p. 1328. 4 2003(1) R.C.R. (Cr.) 196.

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offence under Secs. 326/324 of the Indian Penal Code on the ground

that the accused therein had remained on bail for 12 years. In the case

in hand, it is not in dispute that the petitioner has undergone travails of

the criminal Trial and prosecution from the date of the occurrence i.e.

18th July, 1985. The revision petition was admitted on 29th October,

1990 and the petitioner was ordered to be admitted to bail to the

satisfaction of Chief Judicial Magistrate, Amritsar. The revision petition

has been pending in this Court since then. In these circumstances and

keeping in view the sentence imposed upon the petitioner, High Court

was of the view that it would not be just and proper now to send him to

jail after such a long span of time.5

The accused was caught red handed when he was moving his hand

in a drum containing 100 kilograms of lahan. The occurrence took place

21 years ago. There is no incriminating report against the conduct of the

petitioner during the period of more than 16 years when he has availed

the concession of bail. The accused was directed to be released on

probation on his furnishing bond in the sum of Rs. 10,000 with one

surety of the like amount.6

In the case in hand, it is not shown that the petitioner has been a

previous convict. Besides, it is appropriate to note that a period of ten

years has elapsed and the co-accused of the accused petitioner namely

Mukhtiar Singh has already died. In the circumstances, the Punjab and

Haryana High Court took the view that no useful purpose would be

served in now directing the petitioner to undergo the remaining portion of

the sentence. The petitioner was convicted under Sec. 61(1) (c) of the

PUnjab Excise Act by the learned Additional Sessions Judge, Kapurthala,

5 Bachittar Singh v. State of Punjab, 2006(1) R.C.R. (Cr.) 729 at p. 730 (P. & H.). 6 Saheb Singh v. State of Haryana, 2006 (1) R.C.R. (Cr.) 735 at p. 736 (P.&H.); Gurbax Singh v. State of Haryana, 2006(2) R.C.R. (Cr.) 645 at p. 646 (P.H.); Sham Lal v. State of Punjab, 2006(2) R.C.R. (Cr. 647 at p. 648 (P.&H.); Ajmer Singh v. State of Punjab, 2006(1) R.C.R. (Cr.) 847 at p. 848 (P.&H.); Karnail Singh v. State of Punjab, 2005(2) R.C.R. (Cr.) 253 at p. 254 (P.&H.).

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on 20th May, 1993 and his sentence of imprisonment was suspended by

the High Court on 17th June, 1993. Therefore, he has undergone about

one month of imprisonment.

For the foregoing reasons and the fact that the co-accused of the

petitioner has since died also that the petitioner has been undergoing the

travails of trial for such a long period, it would be just and proper that he

be released on probation to be of good behaviour for a period of one

year.1

Minimum punishment of one year is prescribed if one is convicted

under Sec. 61(1) (c) of Excise Act for running a working still. Further the

facts that petitioner was found in possession of 10 drums, each

containing 150 kgs of lahan, as also that he happens to be a previous

convict, are in itself enough, not to extend the benefit of provisions

contained in the Probation of Offenders Act to the petitioner.2 In some

what similar case probation was refused in Anokh Singh v. State of

Punjab.3

Accused was justifiably convicted under Sec. 61(1)(c) of the Punjab

Excise Act by the Courts below. He was 30 years of age at the time of

commission of the offence. He was not a previous convict. Ends of the

justice would be squarely met if he be released on probation of good

conduct. He was put up on trial in the year 1984 and his case was heard

by the High Court in the year 2000. During this span of 16 years,

vagaries of this trial must have been hanging heavy on him. Keeping in

view that he is a first offender and also the vagaries of this trial have

been hanging heavy on him for the last 16 years. He should be released

1 Buta Singh v. State of Punjab, 2004(4) A.I. Cr. L.R. 339 at p. 342 (P.&H.). 2 Dalip Signh v. State of Punjab, 2001 (1) A.I. Cr. L.P. 149 at p. 150 (P.&H.). 3 2001(2) R.C.R. (Cr.) 337 at p. 339 (P.& H.).

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on probation of good conduct under Sec. 4 of the probation of offenders

Act, 1985.4

Probation was refused in the instant case under Sec. 61 of the

Punjab Excise Act. the Punjab and Haryana High Court observed that

the sole point which survives for determination is what sentences should

be awarded to the petitioner after a lapse of 16 years as the recovery was

effected in the year 1984.Probation was denied to the petitioners by the

learned Additional Sessions Judge on the ground that a huge quantity of

charges has been recovered from them. In the opinion of the High Court

too the petitioners are not undergone by them shall suffice the purpose

of interest of justice. According, the sentence of the petitioners is reduced

to already undergone.101

Keeping in view the old age of the accused appellant, he would

certainly be entitled to be released on probation of good conduct,

especially when he is not a previous convict and is a first offender.

merely because Legislature has provided the minimum sentence under

the provisions of the Act, would not be sufficient to disentitle the accused

appellant of being granted the benefit of probation, in view of the law laid

down by the Full bench of the Punjab and Haryana high Court, in the

case of Joginder Singh v. State of Punjab.102 In the said authority it was

held by the Full Bench of the Court, in a case under the Punjab Excise

Act, that the prescribed minimum sentences under the provisions of the

said Act, would not operate as a bar to the applicability of the provisions

of Sec. 360/361 of the Code of Criminal Procedure. Similarly, in a case

under the Essential Commodities Act, the High Court, in the case of

Niranjan v. State of Haryana, had ordered the release of the accused

4 Banta Singh v. State State of Punjab, 2000 (3) R.C.R. (Cr.) 766 at p. 767 P. & H. (H.C.); Ajit Singh v. State of Punjab, 2000 (3) A.I. Cr. L.R. 588 at pp. 589, 590 (P. & H.) 101 Umed Singh v. State of Haryana, 2000 (2) R.C.R. (Cr.) 723 at pp. 724-725 (P. & H.) 102 1980 C.L.R. 196 (P. & H.)

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appellant on probation on the ground that the accused has to face

protracted criminal proceedings.

In view of the above, the ends of justice would be fully met in case

the accused appellant Sant Lal is ordered to be released on probation,

instead of giving him the substantive sentences. According while

upholding the conviction of the accused appellant under Sec. 7 of the

Act, it is directed that accused appellant Sant Lal shall be released on

probation of good conduct, on his furnishing personal bond in the sum of

Rs. 2000/- with one surety in the like amount to keep peace and be of

good behaviour for a period of six months and to receive the sentences as

and when called upon to do so during the said period of six months.103

According was convicted under Sec. 61(1)(c) of the Punjab Excise

Act. His learned counsel submitted that the petitioner is a first offender.

He has been leading a good course of conduct before. His character and

antecedents are clean. It is not an offence involving moral turpitude. So,

he should be given an opportunity to reform himself and follow the path

of rectitude. In the opinion of the High Court the accused should be

given one opportunity to reform himself and follow the path of rectitude

as possession of illicit liquor is not an offence involving moral turpitude.

At best it is an offence affecting the revenue of the State. Petitioner is

stated to be old also. Keeping in view that the petitioner is first offender

and has been leading good course of conduct before, he is ordered to be

released on probation of good conduct under Sec. 4 of the probation of

Offenders Act, 1958.104

No doubt the petitioner has been convicted for the offence under

Sec. 61(1)(c) of the Punjab Excise Act, but keeping in view the fact that

he was less than 21 years of age at the time of the commission of the

103 Sant Lal v. State of Haryana, 1999 (2) A.I. Cr. L.R. 562 at pp. 653, 654 (P & H.); Shyam Lal v. State of Haryana, 2010 (1) R.C.R. (Cr.) 303 at p. 308 (P.&H.) 104 Nand Singh v. State of Punjab, 1999 (1) R.C.R. (Cr.) 285 at p. 286 (P. & H.)

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offence, and keeping in view the object of the probation of offenders Act,

1958 and Sec. 360 of the code of criminal procedure, 1973 which

provisions have been enacted with an object not only to convict the

offender but also to reclaim him, the sentences of the petitioner is

modified and he is extended the benefit of the probation of offenders act

and the petitioner is ordered to be released on probation of good conduct

under Sec. 4(1) of the probation of offenders Act, 1958.105

(i) Offences under Gold Control Act and Central Excise Act:

The punishing provisions of the Gold Control Act and the Customs Act

have been enacted with the aim of eradicating the anti-social evil of

smuggling gold into India. With that view deterrent punishments are

provided in both the Acts. Therefore, having regard to the nature of the

offence and the circumstances of the case, the Andhra Pradesh High

Court did not consider it a fit case where he accused should be given the

benefit of the provisions of the Probation of Offenders Act, 1958.106

Opinion of Ex-Justice of Supreme Court

Mr. Justice Sarv Mittra Sikri, the former Chief Justice of the

Supreme Court of India, in his inagural address at the eve of probation

year on ay 7, 1971, inter alia, observed:107

"Not only the probation officers should be convinced of the

advantage 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".

Again, Mr. Justice V.R. Krishna Iyer, Former Judge of the Supreme

Court, Expressing his views on probation and other correctional services

105 Roor Singh v. State of Punjab, 1998 (1) A.I. Cr. L.R. 367 at p. 368. (P.&H.) 106 Public Presecutor, Andhra Pradesh v. Veerpal Singh, 1974 Cr. L.J. 437 at pp. 439, 440; Arvind Mohan Sinha v. Amulya Kumar Biswas, 1974 Cr. L.J. 883 at p. 887. 107 Social Defence quarterly vol. VII, no. 25 (July 1971) pg. 6-7. Published by Central Bureau of correctional services, New Delhi.

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in the National Correctional Conference on the probation and Allied

Measures held in October, 1971 at New Delhi Observed:108

"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 our magistracy bends to the winds of social

changes……"

Accused convicted and fought litigation for 20 years - He had a

good career and was dismissed from service - He is entitled to the benefit

of the Probation of Offender Act - In the instant case, the litigation has

been going on for the last 20 years and has been fought tenaciously

through various Courts. It was also told that the appellant who has had

a good career throughout but for this one aberration has since been

dismissed from service on account of his conviction. Therefore, while

dismissing the appeal it was held that the ends of justice would be met if

the appellant be released on probation under Sec. 4 of the Probation of

Offenders Act, 1958 on conditions to be imposed by the Trial Court.109

No reduction of sentence and benefit of Sec. 4 of the Probation of Offenders

Act in matters of conviction under Secs. 279 and 304-A of the Indian Penal

Code - All those who are manning the starring of automobiles,

particularly professional drivers, must be kept under constant reminders

of their duty to adopt utmost care and also of the consequences befalling

them in cases of dereliction, one of the most effective ways of keeping

such derivers under mental vigil is to maintain a deterrent element in the

sentencing sphere.110

The plea about the benefit of probation is not found to be

acceptable in view of the nature of the offence. The accused was about 35

years of age at the time of the accident. There appears no specific reason

108 Ibid vol. VIII, 27 (January 1972), pg. 26-27. 109 Paul George v. State of N.C.T. of Delhi, 2008 (2) R.C.R. (Cr.) 478 at p. 482 (S.C.) : (2008) 4 S.C.C. 185. 110 Ranbir singh v. State (N.C.T. of Delhi), 2009(1) J.C.C. 466 at p. 471 (Delhi.).

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for which he may be allowed the benefit of probation. The learned

counsel for the accused has not been able to show any such

circumstances which would entitle the accused to get the benefit of

probation.111

The criminal trial has been hanging on his head like Damocles'

sword for the last 7 years. Accused cannot, however, be released on

probation of good conduct as road accidents area on the increase. It is

the duty of the drivers of the heavy vehicles to be careful and

circumspect when they are on highways, while driving, more so when

they are on internal roads. They have to be extra careful, cautious and

circumspect so far as safety of the children, pedestrians and scooterists

etc. is concerned. In this case petitioner brought about the death of a

child aged 10 years by dashing Swaraj Mazda with him when he was on

a point where Swaraj Mazda has no occasion to have been. It is, thus,

not a case where the provisions of Probation of Offenders Act, 1958 or

Section 360 of the Code of Criminal Procedure, 1973 should be brought

into play to the aid of the accused. Releasing such an accused on

probation of good conduct would be putting premium on his criminal

negligence.112

Learned counsel for the petitioner submitted that the petitioner

deserves to be released on probation of good conduct inasmuch as he is

about 50 years old and has been facing the vagaries of the trial for the

last 7 years and he is the sole bread winner of the family comprising his

wife and two minor children. This trial has been hanging on his head like

Damocles' sword for the last 7 years. Petitioner does not deserve to be

released on probation of good conduct as if he had been careful,

circumspect and cautious while driving the truck on a highway, this

ghastly tragedy which is attributable clearly to the rash, negligent and

111 Balwant Singh v. State of Haryana, 1999(1) R.C.R. (Cr.) 54 at p. 56 (P.&H.). 112 Ramesh Kumar v. State of Punjab, 1999(1) R.C.R. (Cr.) 506 at p. 508 (P.&H.).

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careless driving of the truck by the petitioner affected three human lives

from the face of this earth in the twinkling of an aye. Petitioner ought to

have known that highways are meant to be used no by truck drivers

alone but by pedestrians, cyclists, scooterists, car drivers etc. Road

accidents are on the increase. Release of the petitioner on probation of

good conduct will work only as a let off and it would not have any

salutary effect on him.113

Petitioner faced the agonies of criminal trial before the learned

Magistrate for four years. After he was convicted by the learned

Magistrate, he sought to try his luck before Additional Sessions Judge.

His fate hanged in the balance for about 1-1/4 years before the learned

Additional Sessions Judge where after his appeal was dismissed. He has

thus faced the agonies of criminal trial for five years. It is the duty of the

Court to assure the accused speedy trial. If the Court is not able to

assure the accused speedy trial, it should how some consideration in the

matter of sentence. It was submitted that the petitioner should be

released on probation of good conduct. He cannot be released on

probation of good conduct as his negligence affected three lives from the

horizon. If he had been careful and circumspect in the driving of the bus

this accident could have been averted. Some consideration should,

however be shown to the accused because he has been facing the agonies

of the criminal trial for the last about five years. Trial of this case has

been hanging on his head like Damocles' sword. His sentence was

reduced.114

Benefit of probation not available to person convicted under Secs.

279/304-A of the I.P.C. - The benefit of Probation of Offenders Act, 1958

or that of Sec. 360 of the Code of Criminal Procedure, 1973 should not

113 Nirmal Singh v. State of Punjab, 1999(2) R.C.R. (Cr.) 322 at p. 323 (P.&H.). 114 Mohinder Singh v. State of Punjab, 1999 (2) R.C.R. (Cr.) 18 at p. 19 (P.&H.).

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be extended to those convicts who are responsible for commission of the

offence under Secs. 279/304-A of the Indian Penal Code as a human life

is lost in the process of rash and negligent act committed by the accused.

The scales of justice are supposed to be kept at par lest the faith of the

people may be evaporated from the criminal justice. Once the offence is

proved it is the duty of the Criminal Courts to ward punishment

according to the law. Therefore, the order of the Additional Sessions

Judge granting probation of the respondent was set aside and it was held

that the petitioner shall serve the substantive sentence of 8 days.115

Application of the act is barred in some cases

1. The prevention of food adulteration act, 1954

2. The narcotic drugs and psychotropic substances act, 1985

3. The scheduled casts and scheduled tribes (prevention of atrocities)

act, 1989

4. The central excise act, 1944

5. Prevention of corruption act, 1988

Application of act is barred in some cases:

Some enactments expressly bar or restrict the applicability of this

Act or/and Sec. 360 of the Code of Criminal Procedure, some such

enactments are enumerated below:

1. The Prevention of Food Adulteration Act, 1954:

There was divergence of opinion on the point as to whether the

provisions of the Probation of Offenders Act, 1958 was applicable to

cases under the Prevention of Food Adulteration Act between the various

High Courts. The question came up for consideration before the Supreme

Court in the under-noted case3 and it held:

115 State of Punjab v. Tilak Raj, 2002 (4) R.C.R. (Cr.) 855 at p. 856 (P.&H.); State of Himachal Pradesh v. Varinder Singh, 2002 (2) R.C.R. (Cr.) 487 at p. 492 (H.P.). 3 Ishar Das v. State of Punjab. (1952) 2 Cr. L.J. 874 at p. 878 (S.C.).

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"The provisions of Probation of Offenders Act point to the

conclusion that their operation is not excluded in the case of persons

found guilty of offences under the Prevention of Food Adulteration Act.

Assuming that there was reasonable doubt or ambiguity, the principle to

be applied in construing a penal Act is that such doubt or ambiguity

should be resolved in favour of the person who would be liable to the

penality.4

It has also to be borne in mind that the Probation of Offenders Act, 1958

was enacted in 1958 subsequent to the enactment in 1954 of the

Prevention of Food Adulteration Act, 1954. As the Legislature enacted the

Probation of Offenders Act, 1958 despite the existence on the Statute

Book of the Prevention of Food Adulteration Act, 1954 the operation of

the provisions of Probation of Offenders Act, 1958 cannot be whittled

down or circumscribed because of the provisions of the earlier

enactment, viz., Prevention of Food Adulteration Act, 1954. Indeed, the

non-obstante clause sin Sec. 4 of the Probation of Offenders Act, 1958 is

a clear manifestation of the intention of the Legislature that the

provisions of the Probation of Offenders Act, 1958 is a clear

manifestation of the intention of the Legislature that the provisions of the

Probation of Offenders Act, 1958 would have effect notwithstanding any

other law for the time being in force."

The Supreme Court in a later case, sounded a note of caution

and observed:

“The benefit could be given could be given of the provisions of the

probation of offenders Act, 1958 to persons who are found guilty of

offences under the probation of offenders Act, 1958. However,

adulteration of food is a menace to public health. The act, 1958 has been

enacted with the aim of eradicating that antisocial evil and for ensuring

purity in the articles of food. In view of the above object of the Act, 1958

4 See Maxwell on Interpretation of Statutes, p. 239, 12th Ed.

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and the intention of the Legislature as revealed by the fact that a

minimum sentences of imprisonment for a period of six months and a

fine or rupees one thousand has been prescribed, the Court should not

lightly resort to the provisions of the probation of offenders Act, 1958 in

the case of persons above 21 years of age found guilty of offences under

the Act, 1958.116

The central excise Act, 1944. Section 9-E of the central excise

act, 1944 runs as follows:

“9-E. Application of Sec. 562 of the code of Criminal

procedure, 1898 and of the probation of offenders Act, 1958.-(1)

Nothing contained in Sec. 562 of the offenders Act, 1958 (20 if

1958), shall apply to a person convicted of an offence under this

Act unless that person is under eighteen years of age.”

The provisions of sub-section (1) shall have effect not withstanding

anything contained in sub-section (3) of Sec. 9.”

Section 9-E was inserted by Customs Gold (Control) and Excises

and Salt (Amendment) Act, 1973 (36 or 1973). It clearly provides that the

provisions of the probation of offenders Act, 1958 are applicable only to

minors (under eighteen years of age) on their convicting of an offence

under the central excise Act, 1944. The benefit of probation, therefore,

cannot be extended to major accused on his conviction of an offence

under the Central Excise Act.

Prevention of corruption Act, 1988.- Section 18 of the

probation of offenders Act, 1958 runs as under:

“18. Saving of operation of certain enactments. – Nothing in this

act shall affect the provisions of Sec. 31 of the Reformatory Schools Act,

1897 (8 of 1897), or sub-section (2) of Sec. 5 of the Prevention of

116 Ram Praksh v. State of Himachal Pradesh, A.I.R. 1973 S.C. 780 at pp. 781-82.

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Corruption Act, 1947 (2 or 1947) or of any law in force in any state

relating to juvenile offenders or brutal schools”.

At the time of the commencement of the probation of offender Act,

1958 the old prevention of corruption Act, 1947 was in force, so a

reference to that Act in Sec. 18 as reproduced above was natural. The

prevention of corruption Act, 1947 was replaced by the Prevention of

Corrupting Act, 1988 without any consequential amendment in Sec. 18

as stated above. Section 8 of the General Clauses Act, 1897 comes into

play in such situation after examining the provisions of Sec. 18 and 19 of

the probation of offenders Act. The Apex Court has held that reference to

sec. 562 of the old code of Criminal Procedure in Sec. 19 of the Probation

of Offenders Act, 1958 and Sec. 5 (2) of the Prevention of corruption Act,

1947 and in Sec. 18 of the Probation of Offenders Act, 1958, respectively

of corruption Act, 1947 and in Sec. 18 of the probation of offenders Act,

1958, respectively have to be inevitably read as references to their

corresponding provisions in the newly enacted code and the probation of

offenders Act, 1958. Consequently on the conviction of a person under

Sec. 13 (2) of the Probation of offenders Act, 1958 the benefits

enumerated under the Probation of Offenders Act, 1958 cannot be

extended at all in view of the mandate contained in Sec. 18 of the said

Act.117

Probation can however, be granted in a case punishable under Sec.

15 of the prevention of corruption Act, 1988.

(i) Cases under factories act :

In view of the fact that the occurrence has taken place in the year 1986

and that even now he continues to do his business in the same rice mill,

it is not necessary to impose any sentence of fine on him. Interest of

justice will be met by releasing the respondent under Sec. 3 of the

Probation of Offenders Act, 1958. The offences (under Secs. 6, 7, 8 and 9

117 N. Bhargavan Pillai (Dead) by L.Rs. v. state of Kerala, 2004 (2) S.C.C. 969 at p. 972 (S.C.)

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of the Factories Act) committed by him are punishable with

imprisonment for not more than 2 years and no previous conviction has

been placed before the Court. Considering all these facts, the petitioner is

released under Sec. 3 of the Probation of Offenders Act, 1958 on due

admonition.118

118 State by Inspector of Factories v. Murugesan, 1994-1 L.W. (Cr.) 109 at p. 112 (Mad.).