Scope of Probation under Section 360 of Cr. P.C. and Probation of Offenders Act compared !
Unfortunately, the provision of Section 360 of the Code of Criminal Procedure, 1973, being rigid, permits no discretion whereas there is always a need to investigate in each case whether probation will suit to the requirements of the delinquent or not. There may be a case where a teenager might not be suited for probation, while on the other hand, an offender who is otherwise a recidivist, might respond well if he is admitted to the benefit of the probation law.
It is therefore, desired that an agency of well qualified social workers should be assigned the task of preliminary investigation on the basis of data and record of the offender proposed for release on probation. The Government of India have set up Welfare Boards to undertake the liaison work with the judicial authorities under its Five-Year Plans.
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It is evident from the foregoing discussion that the probation law in India permits release on probation of even the adult offenders who are not recidivists and show potentiality for re-adjustment to normal life in society. Obviously, the provisions of Section 360 of the Code of Criminal Procedure, 1973 would not apply in such cases.
Unlike Section 360 of Cr. P.C., the Probation of Offenders Act has done away with the distinction on the basis of age or sex and as such all the offenders whether below 21 or above 21 years of age are equally entitled to avail the benefit of release on probation of good conduct or after admonition. Moreover, grant of probation is not confined to first offenders as in case of Section 360 of Cr. P.C.
The Court is competent to release a previous convict on probation if it thinks it proper to do so having regard to the circumstances of the case including the character of the offender and nature of the offence. Thus, the scope of the Probation of Offenders Act is far more wider than the provisions of Section 360 of the Code of Criminal Procedure, 1973.
The Supreme Court in Chhanni v. State of Uttar Pradesh, once again reiterated that the enforcement Probation Act in particular area excludes the applicability of provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of Section 4 of the P.O. Act is much wider than Section 360 of Cr. P.C. which relates only to persons not under the age of 21 years, convicted for offences punishable with fine only or with imprisonment upto 7 years, and any woman convicted of an offence not punishable with death or imprisonment for life.
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Again, Section 360 Cr. P.C. does not provide for any role of Probation Officers in assisting the courts in relation to supervision and other matters while P.O. Act does provide for it. Further Section 12 of the P.O. Act states that a person released on probation shall not suffer any disqualification attached to conviction of an offender under any law but the Cr. P.C. does not contain any such provision. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the P.O. Act have been brought into force, the provisions of Section 360 of Cr. P.C. will not be applicable.
In the instant case, the appellant was convicted for the offence punishable under sections 304 Part II, 323/149 and 147 IPC and was sentenced to five years’ R.I. On appeal, the Allahabad High Court altered the conviction to that of simple hurt under section 323 IPC and the sentence was accordingly reduced to one year.
The appellant raised plea to be given benefit of release on probation under section 360 Cr. P.C. or Section 4 of P.O. Act. The Supreme Court held that rejection of such application by the High Court was proper as it was made subsequent to modification of the sentence. The Court, however, directed the High Court to consider the application considering the peculiar circumstances of the case.
The Supreme Court, reiterated once again in Ramesh Dass v. Raghunath & others, that release of an accused charged with commission of an offence under Section 326 r/w 149 IPC on probation under Section 360 IPC would be improper as the offence is punishable with life imprisonment. Therefore, provisions of the Probation of Offenders Act would be applicable in the case.
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The respondents in this case, were convicted under Section 326/149 and Section 325/149 IPC by the Chief Judicial Magistrate and sentenced to 5 years’ rigorous imprisonment and a fine of Rs. 5,000/- each. On appeal, the Additional District Judge, Karnal reduced the sentence to three years.
The State appealed against this order and the High Court quashed the judgment of A.D.J. and restored the judgment of the Chief Judicial Magistrate and directed release of the accused persons on probation under Section 360 Cr. P.C. and enhanced the amount of fine to Rs. 15,000/-. It was also directed that 50 per cent of fine shall be payable to injured victim.
In appeal against the judgment of the High Court, the Supreme Court held that since the Probation of Offenders Act was applicable in the State of Haryana, the provisions of Section 360 Cr. P.C. relating to release of offender on probation would not be applicable. Further, Section 360(1) of Cr. P.C. itself provides that the provisions of this section would not apply if the offence is punishable with life imprisonment. The case was therefore, remitted to the High Court.
It is significant to note that the power under the Probation of Offenders Act can be exercised by any magistrate whereas such power under Section 360 Cr. P.C. is restricted to the Judicial Magistrate First Class. However, Second Class Magistrate may also exercise the power to release an offender on probation if he is specially authorised by the High Court in that behalf.
One of the important features of the Probation Act is the provision regarding placement of the offender under the supervision of a probation officer. But there is no such provision under Section 360 of the Code of Criminal Procedure, 1973.
The power to grant probation under the Probation of Offenders Act is discretionary. However, Section 6 lays down a restriction on the Court not to impose a sentence of imprisonment on offenders below 21 years of age when found guilty of offences not punishable with imprisonment for life. The Section provides:
“When any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not with life imprisonment), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and character of the offender, it would not deal with him under Section 3 or Section 4 (release after admonition or release on probation of good conduct) and if the court passes any sentence of imprisonment on the offender, it would record its reasons for doing so.”
It has been held that the sentence of imprisonment imposed on the young offender below 21 years of age without compliance with the aforesaid provision of Section 6 would be wholly illegal.
The Supreme Court in Gulzar v. State of Madhya Pradesh, clarified that benefit of probation under Section 4 of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973 cannot co-exist at the same time in same area. The scope of Section 4 of the Probation of Offenders Act is much wider as it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life.
Again, Section 360 Cr. P.C. does not provide for any role of probation officers in assisting the courts in relation to supervision and other matters whereas Probation of Offenders Act does contain such a provision. As provided by Section 8(1) of the General Clauses Act, where the provisions of Probation of Offenders Act have been applied, the provisions of Section 360 Cr. P.C. would be wholly inapplicable.
In the instant case the victim (complainant) boarded a bus on 25th December, 1992 at about 7.30 p.m. after having made collection of moneys from his customers who were merchants of tea-leaves. While he got out of bus to meet one Kailash only for five minutes, on return he found that his attache containing about 50-60 thousand rupees cash and receipt books etc. was stolen.
He therefore, filed F.I.R. bearing No. 8/60 in the police station, Bakaner. On completion of investigation, the stolen money was recovered from the accused Gulzar and he was convicted for an offence under Section 379 IPC. The sentence of the accused for three years imprisonment for the offence of 379 IPC was upheld by the Indore Bench of High Court of Madhya Pradesh.
The accused therefore, came before the Supreme Court for release on probation under Section 4 of the Probation of Offenders Act or Section 360 Cr. P.C. The Apex Court remitted the matter to the High Court to consider whether the benefits under the Probation of Offenders Act or Section 360 Cr. P.C. could be extended to the appellant.
In Bishnu Deo v. State of West Bengal, the Supreme Court held that provisions of Section 10(6) and 10(7) of the Immoral Traffic (Prevention) Act, 1956, which were inserted by the SITA (Amendment) Act, 1978 constrain the Court from imposing sentence of imprisonment on first female offenders found guilty of having committed an offence under Section 7 and Section 8 of the Act unless it records reasons for doing so, on the basis of probation officer’s report and other materials which justifies female’s imprisonment.
After the enactment of law of the Probation of Offenders Act, 1958, most of the States introduced probation law for their offenders. Section 18 of the Act, however, provides that nothing in the Act shall affect the provisions of the under mentioned Act:—
(1) The Reformatory School Act, (Sec. 31).
(2) The existing State laws relating to juvenile delinquents and Borstal institutions.
(3) The provisions of the Immoral Traffic (Prevention) Act, 1956; and
(4) The Prevention of Corruption Act, 1988 [Sec. 5 (2)].
Section 14(a) of the Probation of Offenders Act contains a mandatory provision that whenever the court, in its opinion considers it reasonable to admit an adult offender above the age of 21 years to the benefit of release on probation, it must first secure a pre-sentence report from the Probation Officer. This report may not be necessary in case the offender is below twenty-one years of age, but if at all the report is submitted by the probation officer, it must be taken into consideration.
The pre-sentence report prepared by the probation officer usually contains the details about the antecedents of the offender, his life history, family background, marital status, educational standard, social and economic background and the circumstances which led him to commit the offence. The report is to be treated as a confidential document by the court.
After receiving a favourable report from the probation officer about the prospective probationer, the presiding Judge determines the exact period of probation for the delinquent. The period of probation may vary from offender to offender depending on his potentiality for readjustment to normal life in society.
Thus, for some probationers a period of six months or so may suffice while for others even a period of a year or two may be insufficient. It has been generally accepted that keeping the delinquent under supervision for an indeterminate period until his rehabilitation, seems to be the best policy in this regard. In India, the maximum limit for the release of an offender on probation is three years.
The probationer can be set at liberty any time during the period of probation as soon as he is considered fit for release in the opinion of the probation officer. But this provision has been criticised for two obvious reasons. Firstly, leaving the probationer entirely at the mercy of the probation officer has its own disadvantages; and secondly, it creates resentment among the probationers as they feel that they are being unduly discriminated by the probation authorities.
To obviate these possibilities, some countries have prescribed a minimum and a maximum limit during which the probationer is kept under supervision and he can be discharged any time after he has completed the minimum period.