All about Probation of Offenders Act,1958 By: Naina Agarwal

The Author, Naina Agarwal is a 2nd Year student of Rajiv Gandhi National Law University, Punjab. She is currenty interning with LatestLaws.com.

Q1. What is probation?

Ans. Under probation, a person convicted of crime is given a chance to remain within the community instead of four walled prison. It is granted by the judge through his discretion mainly in non-violent crimes or when it is a first-time offense. The convict is required to follow certain court ordered rules and regulations under the guidance of probation officer[1]. Certain conditions may involve performance for community services and welfare, refrained from use of alcohol or drugs, not permitted to meet certain people and appear in the court when requested.

Q2. What do you mean by Federal Probation?

Ans. Federal probation is a sentence only for those convicts who have committed federal crimes. They are put under the guidance of federal probation officers to rehabilitate them in society.

Q3. Difference between probation and parole

Ans. Probation refers to the suspension of sentence and allowing them to stay within the community under guidance of probation officer, however, parole refers to the early release of convict before expiry of punishment term in order to serve community and other restrictions. Probation is imposed by court and given generally to first time offenders whereas parole is imposed by parole board to the convicts who are already under detention. Therefore, probation is alternative to prison and parole is   conditional release from prison.

Q4. What are the salient features of the Act?

Ans. The characteristics of the act are as follows:

1. The main objective behind the act is to reform the first time or amateur offenders and rehabilitate them in the society.[2] [3]
2. It secures the life of first time offenders by giving warning or admonition to have committed an offence under sections 379[4], 380[5], 381[6], 404[7] or 420[8] of Indian Penal Code with imprisonment of less than 2 year or fine or both. 
3. It aims to rehabilitate but not in case of punishment of life imprisonment or death.
4. The court may ask for payment of reasonable compensation for loss caused to victim[9].
5. The act aims to provide special protection to person under the age of 21 but subjected to punishment.
6. The offender is placed under the guidance of the probation officer, who provides assistance to court and helps the offender to join appropriate employment.

Q5. How does the concept of probation arise?

Ans. It started with English common law wherein the court had the power to suspend an execution whereas convict appealed to monarch for pardon. The concept of probation developed in US in 1841 when Boston cobbler, John Augustus convinced the judge to release convict for his care for a short time period with the goal of rehabilitation. Moreover, with the passage of time a need was felt and led to the establishment of National Probation Act of 1925.

Q6. What are the two methods of release of convict?

Ans. The two methods of release of convicts depends upon the circumstance that the convict is a first time offender or a serious one; admonition and probation. Section 3 of the act connotes the treatment of petty offenders who committed offences for first time in case of certain specified offences punishable with imprisonment of less than 2 years[10]. Whereas under section 4(1) allows probation of offender with first time petty or grievous crime on good conduct and entering into bond with or without surety on the condition that the punishment shall not be death or life imprisonment.[11]

Q7. How can probation benefit society?

Ans. There are many ways in which probation benefits the society. Some of them are as follows:

1. It helps in de-congestion of prisons.
2. Helps in providing release options for non-criminal convicts.
3. Helps in bringing reform in person, thereby affecting society directly and indirectly.
4. By providing employment opportunities, the offender can contribute to the national income of the country.
5. Prevents affecting mind of young petty offenders by hardcore criminals.
6. Prevents convict further from committing any crime.[12]

Q8. Is probation a right? Who can apply for it?

Ans. Probation is not a right[13] but mere privilege given to adult criminal convicts. However, a child in conflict with law can be granted probation, if qualified under probation law as specified in R.A. 9344 or Juvenile Justice and Welfare Act, 2006.

Any person of 18 years or above, convicted for first time can apply for probation.

Q9. When and where shall the application be filed?

Ans. The application has to be filed anytime but within 15 days from notice of judgement of conviction. It can be filed with the court that tries and sentenced the convict.

Q10. Who cannot be permitted probation?

Ans. Following group of people cannot be granted probation:

1. Those convicted for a term of more than six years.
2. Those sentenced for crime against public order or national security[14].
3. Those who were earlier convicted of offence punishable of more than one month and one-day imprisonment and/or fine of more than two hundred rupees.
4. Convicts already placed under the act before.
5. Those convicts who are already on appeal or serving sentence[15]
6. Persons convicted against insurgency law, wage rationalization at and omnibus election code.

Also, in the judgement of State of Rajasthan v. Sri Chand (2015)[16], court held that no probation can be granted to person who has committed crime against women.

Q11. How long is a person on probation?

Ans. The time period of probation depends on offences and laws of states. But basically it is granted from one to three years. Such period can be extended upto life depending upon the type of the conviction.

Q12. Can probation be automatically permitted to those convicts whose sentence is less than 6 years?

Ans. The convict can be denied probation on following grounds:

1. Possibility of better rehabilitation in case he starts serving sentence
2. There lies a doubt that the convict is likely to commit crime again
3. The alternative to prison is likely to reduce the seriousness of crime committed.

Q13. Explain the powers of the court to pass supervision orders.

Ans. Section 4(2) of the act allows court to consider the report submitted by probation officer. Also, the court under section 4(3) is allowed to make supervision order and impose additional conditions to be mentioned in the bond for the offender under section 4(1).  Other conditions to be followed by offender is mentioned in section 4(4) like restriction on drugs, residence and the like.[17]

Section 6 of the act emphasizes on the restrictions on imprisonment of convicts below age of 21.[18] This can be re-interpreted in context of JJ Act wherein it spells as ‘any person above18 years or less than 21 years’. It aims to protect the young offenders from non-serious crimes and influence of hardcore criminals.  

Q14. What happens if a convict violates probation?

Ans. Violation of probation occurs when he breaks any rule or conditions imposed by court. when such a violation is traced probation officer can either give a warning or call for violation hearing. The discretion lies on judge either to alter the conditions or order to serve imprisonment. Probationer can also be arrested of such a violation is a criminal offence.

Q15. Is court empowered to change its decision on conditions of bond?

Ans. The court under section 8 of the act can change its decision regarding duration and conditions of bond during its effective period. Such changes in decision can be made to the stretch of discharge or extension of period not exceeding 3 years and it also depends upon the behavior of convict.[19]

Q16. What happens when there is revocation of probation?

Ans. Revocation of probation does not automatically imply imprisonment. Judge upon his discretion may exercise other options like imposition of additional fine, lengthen the period of probation or order counselling programme. Moreover, judge may order to spend brief or entire period in prison depending upon the circumstances.[20]

Q17. What are the different types of probation?

Ans. There are various types of probation that can be ordered to the offender:

1. Supervised probation: There lies a condition that the offender must check in with the probation officer at regular intervals by mails, phones or like means.
2. Unsupervised Probation: The offender has freedom from probation officer but this does not mean that he is free from court specified orders. Such probation is given for less serious or non-violent crimes.
3. Community Control Probation: The offender under this probation is confined to the boundaries of home and permitted just to attend work or school. Under this he is traced by the ankle tracking system.
4. Shock Probation: The defendant under this is captured in prison for short time period in order to ‘shock’ him into probation conditions.
5. Crime- Specific Probation: Under this, judge orders specific conditions to be fulfilled in order to avoid happening of the same crime again.

Q18. Does section 4 of the Act has overriding effect on Section 360 of CrPC?

Ans. According to Section 19, the states wherein the Act has been applied, Section 360 of CrPC ceases to apply. Therefore, section 4 has overriding effect on Section 360 of CrPC. The difference lies on the fact that under Section 360 of CrPC probation is granted to just first time offenders whereas under Section 4 of the act it can be granted to petty or repeat offenders as well.[21]

Q19. Enumerate the duties of probation officer?

Ans. Section 14 of the act elucidates the duties of a probation officer:

1. In order to assist the court, the officer can be asked to enquire under its directions.
2. Guide other probationers under him and to provide relevant training to them.
3. Helps offender in payment of compensation or dues.
4. Advise and guide in the manner prescribed the convicts released under section 4.[22] 

Q20. What are the problems in the implementation of the Act?

Ans. Following are the problems in implementation of the act:

1. Limited number of probation officer are available. Moreover, no proper training is given to them.
2. The budget allocation under correctional institutions is very low.
3. The courts do not use probation officers.
4. There is different attitude of judges towards court and prosecution.[23]