Following Conditions Must Be Fulfilled Before Allowing the Benefit of Release on Probations To An Accused Person !
Probation is a conditional release of an offender under supervision. As a corrective measure, supervision can be used in two ways, namely, before or after the custodial sentence. If it is applied to an offender before custodial sentence, it is known as ‘probation’ but if it is applied to an offender who has just been released from a custodial sentence, then it is known as ‘parole’.
Undoubtedly, probation is an embodiment of a progressive criminal policy based on individualisation of treatment. It is rather a selective measure depending on the discretion of the court. The actual selection for release on probation depends on the careful investigation of personal case-history and social circumstances of the offender. The investigation is done by a Probation Officer who prepares a pre-sentence report to be filed before the trial court prior to the final disposal of the case.
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The system of probation involves conditional suspension of punishment. An offender may be released on probation either after the sentence is passed in his case or without passing of a sentence. In the former case, the sentence is suspended and delinquent is placed under probation while in the latter, he is put under probation straightway without any sentence being passed on him.
Thus, the suspension of sentence may refer either to the suspension of the execution of sentence in the former case or suspension of imposition of sentence in the latter case, depending upon the discretion of the court.
From the constitutional standpoint, “probation is a status of a convicted offender during the period of suspension of his sentence in which he is given liberty conditioned on good behaviour and the State helps him in such an instance of good behaviour”. This is rather a guiding policy in implementing probation.
The offender may be released on probation after the suspension of his sentence on following two considerations, namely,—
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(i) His case may be considered as really hopeful when judicial leniency is expedient;
(ii) Probation may be intended to serve a positive role as a method of guidance, assistance and supervision of the probationer so that he may rehabilitate himself for the normal law-abiding life. The suspension of probationer’s sentence is conditioned by his good behaviour during the period of probation and therefore, it acts as a sufficient deterrent for the offender and serves as a punitive reaction to crime. In other words, the system of probation serves to bridge the gap between punishment and measures of safety, that is, the moral responsibility and the social defence, and thus it seeks to combine the punitive and the treatment reaction to crime.
Without under-rating the merits of the system, it must be conceded that from the legal standpoint it is difficult to conceive of a system in which judicial powers can be fettered without taking the risk of value considerations.
According to Howard Jones, the following conditions must be fulfilled before allowing the benefit of release on probations to an accused person:—
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(1) No punishment should be imposed initially;
(2) The offender should be given a definite period to redeem himself;
(3) During this period, delinquent should be placed under supervision of a probation officer for two obvious reasons:—
(i) In order to keep the court informed about his progress; and
(ii) To help him to make the best use of the opportunity given to him.
(4) If the offender responds favourably, his initial crime should be deemed to have been scrapped, but if he fails to do so, he may be brought back to court and sentenced for the original crime as also for any other crime which he might have committed.
It is thus evident that probation is not a “let-off” as alleged by some critics because the probationer must either respond favourably to reformation or suffer imprisonment later. The original offence remains punishable throughout the period of probation and the offender is liable to be punished in case he violates the conditions of the probation order.
Again, probation is also not a compulsive measure as it rests on voluntary acceptance of conditions by the probationer. It largely depends on the willing co-operation of the probationer to refrain from violating probation law and abide by the terms of probation order.