Sunday, 23 December 2012

Probation in Criminal Cases in India.


Order to release on probation of good conduct or after admonition.
Sec.360. of Criminal procedure code :

(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, or with imprisonment for 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 find be of' good behaviour :
Provided that where first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceeding are submitted to the Magistrate of the 1st class as provided in sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and if thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentences him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its power of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the court by which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The court, before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the court, which convicted the offender, or a court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the court issuing the warrant, and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such court may after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
Judgment on probation.

VED PRAKASH
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT12/11/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
VENKATARAMIAH, E.S. (J)
CITATION:
1981 AIR 643 1981 SCR (1)1279
1981 SCC (1) 447
ACT:
Sentencing exercise by the Court-Code of Criminal Procedure, 1973, Section 360 read with section 4(1) of the Probation of offenders, Act 1958-Duty of the Bench and the Bar, explained.
HEADNOTE:
Maintaining the conviction, allowing the appeals as to sentence and releasing the accused on Probation the Court ^
HELD: Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting as hunch. The social background and the personal factors or the crime-doer are very relevant, although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 Criminal Procedure Code is not attached, it is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with rehabilitating slant. The Bench must fulfil the humanising mission of sentencing implicit in such enactment as the Probation of offenders Act. [1279 H. 1280 A-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION. Criminal Appeal Nos. 291292 of 1980.
( Appeals by Special leave from the Judgment and order dated the 10th of February, 1977 of the Punjab and Haryana High Court in Criminal Appeal Nos. 430, 828 and 429/73.) A. P. Mohanty and S. K. Sabharwal for the Appellant. R. N. Poddar for the Respondent. F
The order of the Court was delivered by KRISHNA IYER, J.-In this case, the question of dealing with the appellant under S. 360 Cr.P.C. remains to be considered. For this purpose we had directed that a report be called for from the Probation officer having jurisdiction. That report has been put in. F{is age, according to the Jail Doctor, was 24 years on 23-4-1973 which means that on the date of the offence, he was less than 21 years old. The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is
1280
a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of suck materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislations which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act. In the present case, the offender is a young person and his antecedents have no blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are stabilizing factors in life. A long period of litigation and the little period of imprisonment suffered? will surely serve as a deterrent. We are mindful of the fact that a fire-arm has been used by the appellant and we cannot sleep over the gravity of the offence. Nevertheless, the report of the Probation officer states that the appellant is not given to any bad habits or stresses of poverty. A land dispute led to the crime and that does not survive any longer. The Probation officer recommends that an opportunity be given to the appellant to improve himself and bring up his family by honest labour as an agriculturist so that the interests of social defence may be secured. We are inclined to agree that in this case the appellant may be given the benefit of the Probation of offenders Act. We are satisfied that the offender has a fixed place of abode and regular occupation. We are inclined also to rely on the Probation officer's report which supports the direction for release on probation. We, therefore, direct that the appellant be released under S. 4(1) of the Probation of offenders Act, 1958, and instead of sentencing him direct that he be released on his entering into a bond before the trial Court with two sureties, one of whom shall be his father, to appear and receive sentence when called upon during the period of. three years from the date of release and in the meantime to keep the peace and be of good behaviour. In addition,
1281
we pass an order that the Probation officer shall have supervision A over the offender for a period of one year and shall make reports once every three months to the Sessions Court about the conduct of the offender. We direct further, that the appellant shall be specially supervised from the point of consumption of intoxicants and the matter brought to the notice of the Court in case the appellant violates. The undertaking to be incorporated in his bond shall contain a term that he shall not consume alcohol during the period covered by the bond. We allow the appeals in the manner above indicated.
S.R. Appeal allowed

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