Probation and Rehabilitation of Delinquents

By  Suwarn Rajan ,Advocate & Patent  Agent ,Managing Partner, CARE INTELLECT, NEW DELHI,

Email:careintellect@gmail.com,www.careintellect.com

Emite Dherkheim describes law from two approaches (i) Repressive; and (ii) Restitutive[1]. As per as repressive approach of law there is no question of rehabilitation of the offender but punishment is the only reaction towards the offender. But as far as restitutive aspect is concerned there the society can restitute itself and try to rehabilitate the offender who in the process of commission of the offence has harmed the society and himself as well. The crude imprisonment has little sympathy for the offender. But a rehabilitative approach of dealing with the offenders considers the delinquent, a socially sick person who can be cured by social therapy either within forecorners of prison or within the open environment of society. Where the offender is of recidivist or has committed a serious offence, keeping such offender in the open society is not safe even under control and supervision of sociological and psychological experts. But where the offender is of tender age or not a recidivist or not guilty of a serious offence he can be treated in the open social environment, and there is no need to keep him behind the bar compulsorily. Probation is the alternative.

Probation is correction and rehabilitation of delinquents through out door treatment under supervision and control of Sociologist & Psychologist. The custodial measure and institutional incarceration presents two crucial problems namely; it increases the dependence of the offender and at the same time decreases his capacity to readjust to normal social life after release. Conformity with strict prison discipline is no guarantee that the prisoner shall really transform him into a law-abiding citizen[2]. Donald Taft defines probation as postponement of final judgment or sentence in a criminal case giving the offender an opportunity to improve his conduct and readjust to the community often on conditions imposed by the court. The system of Probation involves restriction on liberty of the probationers and refrain him from disapproved behaviour or conversely compels him to perform certain requisite acts which may be irksome or even painful to him[3].

Judicial incarceration, without correctional measure, is on extremely orthodox reaction of the society towards the delinquents; and admonition is the most liberal reaction of the society towards delinquents. The legal reaction towards delinquent is changing with the passes of time. Probation, Admonition and Community Sentencing are signs of development of liberal rehabilitative approach of the state towards the delinquent. Community sentencing is latest in criminal’s rehabilitation. It balances these conflicting needs of the society of punishing the offender on the one hand and need to rehabilitate the offender on the other. The object of replacing custodial with non-custodial penalty in order to reduce the prison population, inevitably promoted a drift towards more punitive Community Sentencing. Community Sentencing offers not only a reformative element but also punishment and restitution _ albeit to the community rather than to the victim(s). As an alternative to the custody Community Service like a suspended sentence, carries with it the threat of imprisonment in the event of a breach of condition, while also satisfying the perceived public thirst for punishment as offender pay back their debt of society by engaging in variety of community work placement[4].

The custodial punishment allows many impediments in correct rehabilitation of the offender despite his treatment in the prison; to restrain, but Community Sentencing provides balanced rehabilitation of the offender without harming the society need of punishment. May says we have moved from determinism of psychological explanation (offenders as victim of forces beyond their control, in need of therapy) to the concept of individual freedom (full responsibility of individual action regardless of social circumstances; therefore deserving of punishment). A concentration on the farmer in era of rehabilitation was latterly criticized for removing from individual both autonomy and responsibility for their action, while placing power in the hands of welfare professionals[5]. These changes show the trend of rehabilitation from probation to Community Sentencing in western country. But Indian legal system is still limited to probation, admonition or extra mural treatment and custodial reformation or intra mural treatment.

The Community Sentencing is still not implemented in the Indian society. Even probation as rehabilitation technique is still in the stage of gaining popularity in the Indian social system. Probation has various forms in different countries. In the Great Britain after finding of guilt probation order is made instead of sentencing the offender. In France and Belgium sentence is pronounced simultaneously with conviction but it is conditionally suspended. In Soviet Union proceeding many be dropped and offender is entrusted to the care and supervision, for one year, of his fellow workers, his collectivity or a citizens’ organisation by way of voluntary probation, or in some cases a conditional sentence may be passed as in France or Belgium. In Japan there is prosecution’s probation though the law does not provide for it specifically[6]. In India there can be no probation without guilt of the offender is established.

In India the conventional treatment of the offender is still popular, but with passes of time the concept of probation and admonition is becoming popular. It is evident from the fact that Chief Justice of India had expressed his shock about the popularity of the Probation of Offenders Act; in the year 1971 he said:

‘as a matter of fact I was shocked to see that in a number of cases, which came to the Supreme Court recently even the existence of local Probation of Offenders Act was not known, is easily ascertainable. No reference to the relevant probation Act was made in the courts below but the point was for the first time taken in the grounds for special leave to Appeal to the Supreme Court[7].

Nonetheless probation is becoming usual practice in rehabilitation of delinquents in the society. In India whether a person has to be released on probation or not is solely vested with the Judicial Authority. And Sociologist and psychologist are concerned with the problem of offenders’ reformation only.          

S. 562 of the old Code (the code of Criminal Procedure 1898) for the first time statutorily recognized the idea of probation of the offenders for the first time. Thereafter 1973 Code under Section 360 provides for the same. The code of Criminal Procedure put offenders for the purposes of Probation, into two categories:

(i)                          Offenders under age 21 years and women; they can be released on probation if the offence is punishable with punishment of less than death sentence and life imprisonment.

(ii)                        Other offenders who are the age of 21 year and who is not a woman; and the offence is punishable with punishment up to seven years. 

The Probation of Offenders Act 1958 provides elaborate provisions relating to the probation of offenders. This Act provides four different mode of dealing with offenders in lien of sentence[8].

(i)                 Release after admonition[9].

(ii)               Release on entering a bond of probation of good conduct with or without supervision or on payment by the offender compensation or cost to the victim if ordered[10].

(iii)             Persons under 21 years of age are not to be sentenced to imprisonment unless the court calls for the report from the probation officer or records reason to the contrary in writing[11].

(iv)             Person released on probation does not suffer disqualification attached to a conviction under any law[12]. 

Therefore under Indian legal system the non-punitive treatment of the offender is defendant upon:

(a)    Finding of the court that the person is not guilty of an offence punishable with death or imprisonment for life.

(b)   It is expedient to release the offender on probation of good conduct on the basis of circumstances of the case and nature of the offence and the character of the offender;

(c)    The offender entering into bond with or without sureties that he will appear to receive sentence within a period of three years.

(d)   The report of probation officer, if any.

These factors are prerequisite for invoking the court’s powers to exercise probation Jurisdiction to release the offender[13].

Judicial Trends:-

In Sunna V. State[14] the accused aged 20 years was found guilty of an offence under Section 380 IPC for committing theft of a bicycle and some clothes. The court ordered has release after admonition u/s 3 of the probation of offenders Act 1958 because there was no previous conviction of the accused and theft was committed due to sudden temptation.

In Kehar Singh V. Regional Employment Offices Chandigarh[15] the Petitioner was removed from his service for he was convicted for an offence u/s 380 of IPC despite of the fact that he was dealt with u/s 4 of the Probation of Offenders Act 1958. He was reinstated to the service on the ground that provision of S. 12 of the Act removes disqualification attached to conviction in the Probation cases.

Uttam Singh V. Delhi Administration[16] the Appellant was convicted under S. 292 of IPC for in possession of three pockets of play cards and some obscene photographs. Having age of the offender (that time he was 36 years) in regard the Supreme Court refused to allow him the benefit of release on probation as he was potential danger to the society.

Abdul Qayum V. State of Bihar[17] the offender was sixteen years of age he was found guilty of committing pick-pocketing. The trial court refused him to be released on probation because of his associates with the seasoned pickpocket. The Supreme Court directed the trial court to release him on probation.   

Sornnath Puri V. State of Rajasthan[18] the Supreme Court dismissed the appeal of the offender and maintained the sentence imposed by the High Court; held that benefit of Probation case not be invoked in case of offence of fraudulent misappropriation falling under S 409 IPC and S 5 (2) of the Prevention of Corruption Act. 1947.

Sanchu Ray V. State of Assam[19] the Supreme Court directed release of the offender who was about 19/20 years of age and who was convicted of an offence punishable with one year rigorous imprisonment. He was having no previous criminal antecedent.

Smt. Deviki V. State of Haryana[20] the Supreme Court refused to allow benefit of probation to the offender keeping in view moral turpitude and heinousness of the offence. She was found guilty of kidnapping a teenage girl and forcing her for sexual submission with commercial object. She was sentenced for three years imprisonment.

Phul Singh V. State of Haryana[21] the offender was 21 years of age he was overpowered by sex lust and committed rape upon the wife of his next door neighbour. Despite of the fact that he was young offender and he committed the offence under fit of momentary impulse and the family of the victim was ready to forgive, him he was not released on probation. The Supreme Court held that no leniency could be shown to an accused in cases of such lust loaded criminality.

Trikha Ram V. V.K. Seth[22] the Supreme Court reiterate the fact that the accused convicted of a criminal offence and released on probation can not be dismissed by the disciplinary Authority in view of S. 12 of the probation of offenders Act 1958.

Union of India V. Bakshi Ram[23] the Supreme Court observed that the release on probation does not obliterate the stigma. The Supreme Court in this case held that S. 12 of the probation of offenders Act 1958 clearly directs that the offender shall not suffer disqualification attached to the conviction but this section does not preclude department for taking action for misconduct leading to the offence or conviction thereon as per law. Therefore S 12 does not exonerate the person from Departmental punishment. In this case the Supreme Court turned dismissal into removal from service so that it helps the offender to secure employment elsewhere.

In India Judicial trend in regard of releasing offenders on probation appears to be that where the offence is not of serious nature and the charter of the offender appear to be such that he is corrigible and sentencing is likely to contaminate him or he has committed an offence due to bad company or in the spur of impulse, a chance should be given to the offender. The probation system in our society is yet to achieve the stage of Community Sentencing where benefit of rehabilitative measures could be give to a relatively large number of offender without harming the interest of the society.