Written By- Adarsh Pharasi
‘Hate the Crime not the Criminals’. These words of Mahatma Gandhi reflect the modern approach of Penology which concentrates on reforming criminals. No one is born-criminal, it is the unfavourable circumstances in our life which makes a criminal. Therefore probation serves the reformative approach of penology and aims at rehabilitating offenders to the norms of society to become a law abiding citizen. In the words of Sutherland and Cressey:
“Probation is the status of a convicted offender during a period of suspension of the sentence in which he is given liberty conditioned on his good behaviour and in which the state by a personal supervision attempts to assist him to maintain good behaviour.”
It is a method in which, rather than imprisoning the offender, is placed under the supervision of Probation officer for a specified period as per the conditions laid down by the court, with a view for his reformation.
Laws pertaining to Probation in India:
Code of Criminal Procedure, 1898 comprised the provision for probation of offenders under Section 562. After amendment Code of Criminal Procedure, 1974 consist of the said provision under Section 360. The Sub-section 1 Section 360 forms two classes of offenders entitled for probation:
The provisions of the section are supplemented and elaborated by Probation of Offenders Act, 1958. Further Section 361 of the code makes it mandatory for the court to record reasons for not granting probation to an offender where the court could have granted probation. But Section 19 of the Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989 restricts the application of provisions of Sec. 360 of CrPC and Probation of Offenders Act, 1958 upon the offender above the age of 18 who has committed offence under Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Procedure for Probation under Probation of Offenders Act
The act empowers the power to grant probation by court by two means:
Probation after admonition may be granted upon the discretion of court if the person is convicted of offence of theft, misappropriation, cheating or any other offence punishable with two years of imprisonment or fine, or both and there is no other previous conviction of any offence.
Probation on good behaviour is granted when the court having regard to the nature of offence and offender and his good conduct thinks fit to release him on bond, with or without surety, that the offender will present himself to receive sentence in front of authority when called upon, not exceeding three years only when the offence for which the person is found guilty is not punishable with death sentence or imprisonment for life. The Court can appoint a probation officer for supervision of the offender during for a period not less than one year.
The Court may also require the offender to pay compensation as fine for his release on probation under section 5 of the Act.
Section 8: Variation of Condition of Probation
(1) If, on the application of a probation officer, any court of opinion that in the interests of the offender and the public it is expedient or necessary to vary the conditions of any bond entered into by the offender, it may, at any time during the period when the bond is effective, vary the bond by extending or diminishing the duration thereof so, however, that it shall not exceed three years from the date of the original order or by altering the conditions thereof or by inserting additional conditions therein;
Provided that no such variation shall be made without giving the offender and the surety or sureties mentioned in the bond an opportunity of being heard.
(2) If any surety refuses to consent to any variation proposed to be made under sub-section (1), the court may require the offender to enter into a fresh bond and if the offender refuses or fails to do so, the court may sentence him for the offence of which he was found guilty.
(3) Notwithstanding anything hereinbefore contained, the court which passes an order under section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him.
Bond for probation
An offender is required to enter into a bond, with or without surety to be released from incarceration on probation. In Dasappa v. State of Mysore, AIR 1965 Mys 224., The release of probationer on bond with or without sureties on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from the evil effects of 5 / 18 THE PROBATION OF OFFENDERS ACT, 1958 institutional incarceration and affords him an opportunity of reformation within the community itself. It is a discretionary remedy rather than a mandatory one. But the bond may be terminated if the offender hasn’t complied with the conditions of probation order, or under the conditions given under Section 8 of the Act. But, in Durgesh Ranjan Chakraborty v. The Administrator of Tripura, AIR 1965 Tripura 26., it has been said that for the forfeiture of bond and the failure to pay penalty on behalf of surety, the court is not empowered to order surety’s arrest.
Under Section 13 of the act a probation officer is the person appointed to be a probation officer by the State Government or recognised as such by the State Government; or a person provided for this purpose by a society recognised in this behalf by the State Government; or in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case. A probation officer works under the control of the district magistrate of the district in which the offender for the time being resides and his reports are confidential ‘provided that the court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.’(Section 7)
Special Provision for offenders under twenty one years of age
Under Section 6 of the act the offenders under 21 years of age convicted of crime punishable with imprisonment(not life imprisonment) shall be given benefit of section 3 and 4 by the court but if the court with regard to the nature of offence and offender, report of probation officer is of the opinion that such benefit shall not be granted to the offender then it can do so with reasons recorded for its decision.
The provisions of Section 360 of Cr.P.C. and Probation of Offenders Act are same except that for the special provision for offenders under 21 years of age Cr.P.C. provides that there should not be any other conviction but the condition don’t apply to probation under Sec. 6 of Probation of Offenders Act. But the scope of these two enactment shll not be confused as under Sec. 19 of The Probation of Offenders Act provides that the Sec. 16, 17 and 360 of Cr.P.C. will not apply in states where the said Act is operative. Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years.
WRITTEN BY – Vishad Srivastava
The concept of the prison visiting system is found accepted under the Prisons Act, 1894. The system was introduced to provide transparency within the prisons and bring some degree of accountability to the prison management. Prison visitors can be classified as either official or non-official. Apart from these, other external visitors to prisons can also be appointed by the courts and the Human Rights Commissions. This system is an effective tool to improve prison conditions as well as ensure observance ofprisoners’ legal rights.Prison visitors stand at a unique place within the prison system wherein they have a twofold role to discharge. On the one hand, they act as the eyes and ears of the prisoners to the outside world by providing the prisoners knowledge about their legal rights. On the other hand, they also act as the eyes of the outside world to scrutinise what goes on within the prison walls. Thus a prison visitor not only acts as an accountability mechanism but also as a custodian for prisoners and their rights.Prison visitors act as guardians to ensure that humane conditions prevail within the prison walls. They are well placed to ensure that the directions issued by the courts, the Government and the Human Rights Commissions are properly implemented within the prison. They could enquire into the complaints of the prisoners and assist them in taking remedial action. They may periodically check the register enlisting the period ofdetention of prisoners, which is maintained by the Superintendent under the Prisons Act, or they may ask for such information specifically. Where they find that there are prisoners who can be released under the provisions of CrPC, they can take steps to assist such prisoners in seeking release. The prison visitors can either inform the prisoner of his rights and ways in which he may apply for release or ask the prison authorities to take appropriate action. In future visits, the prison visitors can follow up these cases to ensure that no undertrial has been unnecessarily detained in prison. Prison visitors can also help to create awareness of legal rights and procedures among both the prisoners and prison staff.
The importance of bail provisions and their underutilisation has been reiterated on many occasions. No person should be made to suffer the deprivations of incarceration before she/he has been proven guilty in the eye of the law. By depriving them of their right to liberty through unnecessary detention, the existing system “punishes” the accused in violation of the basic principle of criminal jurisprudence that every person shall be presumed innocent till proven guilty. To ensure justice for undertrial prisoners, it is essential to effectively implement the existing provisions of CrPC. All the agencies of the criminal justice system including the police, the judiciary, the prosecution, the defence lawyers and the prison department must adopt a concerted and a well-coordinated approach to ameliorate the plight of the “forgotten souls”.
WRITTEN BY – Vishad Srivastava
Even though the provisions to avoid unnecessary detention of undertrial prisonershave been in existence for years, they are not implemented, resulting in a largenumber of undertrial population within prisons. The reasons for non-implementation are obvious. Most prisoners who are unable to use the provisions under Section 167 or 437(6) are not only unaware of their right to seek release but are also too poor to furnish surety.The law does not mandate the State Legal Services Authority, Jail Superintendent or the trial court to inform the accused about these provisions. For example, almost three years have passed since Section 436-A was introduced, but it is yet to have the impact that it sought to achieve. At the time of enactment, news reports stated that the introduction of this provision would impact as many as 50,000 undertrial prisonersacross India. However, so far there has been no substantial change in the number of undertrial prisoners.Although some High Courts have issued directions for the release of undertrialprisoners under these provisions, results are yet to be seen. A decision of the Patna High Court is worth mentioning in this regard. In that case the Court suo motu initiated a PIL for the efficient and effective implementation of Section 436-A CrPC. The Court explained that the Jail Superintendent, the Inspector General (Prisons) and the Legal Services Authorities should take interest for the implementation of this section. In its directives, the Court entrusted the Jail Superintendent with the primary duty to inform the undertrial prisoners of the benefits of Section 436-A CrPC. The Inspector General (Prisons) was assigned the role of a “Monitor” for the whole process. In a disposition regarding Section 436 CrPC, the Bombay High Court in October 2008 took up the issue of undertrial prisoners in bailable cases who could not furnish bail. During the proceedings, it was submitted that in one of the prisons within Bombay itself, 1660 out of 2296 inmates were booked in for bailable offences. The Court decided to undertake the task of monitoring the situation for a year and directed all Sessions Judges of the State to call for periodical records from the Magistrates and Jail Superintendents. With regard to the implementation of Section 436, the Court stated that the State Government and jail authorities should not ignore the law and allow such persons to stay inside jails.
Though in India it is the subordinate judiciary that is assigned the primary task ofensuring the enforcement of the provisions under CrPC, prison authorities and prison monitors also have a significant role to play to ensure justice to undertrial prisoners as has been made clear in the abovementioned judicial pronouncements.
The custody and security of prisons and prisoners within it are the fundamental duties and responsibilities of every member of the prison staff. The executive personnel in prison i.e the Superintendents, Additional Superintendents, Deputy Superintendents, Assistant Superintendents and the guards staff are entrusted with the primary responsibility to ensure that the human rights which the prisoners are entitled to are not impinged upon and restricted beyond the limit inherent in the process ofincarceration itself.
Under the Prisons Act, 1894, the Superintendent must maintain a register of all prisoners admitted and a book showing when each prisoner is to be released. The Superintendent has easy access to information relating to the period of detention ofeach undertrial prisoner under his custody, and hence it should be his duty to inform the prisoner when she/he might become eligible to apply for bail under the various provisions of CrPC. Indeed, the Patna High Court seems to agree with this contention and has directed the Superintendent to inform the prisoners of the benefits of Section 436-A.Arguably, the prison staff are the primary custodians of prisoners, and have the advantage of being in direct contact with them. They should undertake the responsibility of making prisoners aware of the benefits that might accrue to them under these provisions. They should impart legal information in all forms, written or oral among undertrial prisoners to make them aware of their right of release under the relevant provisions of CrPC. The prison authorities should also encourage and assist the dispatching of applications for free legal aid to the competent authorities in cases where the prisoner cannot afford expenses.
WRITTEN BY – Vishad Srivastava
The power of the police to arrest people is very wide and they arrest people even when they cooperate with the investigation and are not likely to evade trial. This results in unnecessary detentions. This problem has now been addressed in the CrPC (Amendment) Bill, 2006 which awaits Presidential assent. This Bill amends the existing provisions for arrest i.e Section 41 (and also inserts Section 41-A into CrPC). Section 41 limits the indiscriminate powers of arrest of police officers. A person cannot be arrested merely because there is a complaint against her/him. It must be a “credible” complaint/information and the police officer must “have reason to believe” that “such person has committed the said offence”. In cases involving an offence punishable with imprisonment up to a maximum of seven years, the police officer can arrest a person only under certain specified condition laid down in the law. The officer must record her/his reasons for arresting in writing. In cases, where the specified conditions are not met, the police officer may, instead of arresting a person, issue to her/him a notice ofappearance. This requires the accused to appear before the police officer when required and to cooperate with the police officer in the investigation of the offence.This provision, if properly implemented, will lead to a vast reduction in the number ofpersons—accused for offences punishable up to 7 years—who would have otherwise ended up being detained in prison during the period of investigation, inquiry or trial oftheir offence.
Many poor people are detained in prisons for alleged involvement in bailable offences primarily because they are unable to furnish surety. This is a serious concern because in such cases bail is a matter of right and people end up spending long periods in jail merely because they are poor. This situation led to the amendment of Section 436 in 2005. It mandates the police or court to release an indigent person on personal bond without asking for any surety. The amendment allows an indigent person to execute a bond that she shall appear before the court and stand trial. The section states that the court shall consider any person who is unable to furnish bail within 7 days from the date of her/his arrest as indigent. Therefore, now a person accused for a bailable offence can be detained in prison for a maximum period of 7 days only.
Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Proper and prompt enforcement of Section 167 CrPC can however obviate this difficulty. Section 167 CrPC lays down the maximum period within which the police investigation must be completed and a charge-sheet filed before the court. This period is 90 days for offences punishable with death, life imprisonment or imprisonment for a term of not less than ten years, and 60 days for all other offences. Where the investigation has not been completed within the stipulated time-frame, it is mandatory upon the Magistrate to release the accused on bail, provided he is ready to furnish bail. This provision shields the accused from suffering incarceration on account of the inability of the investigating agency to wind up its investigation.
It is also noticed that many prisoners are charged with a non-bailable offence which is not very serious and is triable by a Magistrate. They remain in prisons for long period because of the delay in trial. Section 437(6) was enacted to prevent this and makes it mandatory for a person to be released on bail where the trial has not concluded within 60 days from the first date fixed for taking evidence. The Magistrate may however refuse such release, but only after recording the reasons in writing.Many undertrial prisoners are detained in prisons for long periods, which in some cases extend beyond the maximum period of imprisonment prescribed for the offence with which they are charged. The system responded to this situation by enacting Section 436-A which spells out the right of an undertrial prisoner to apply for bail once she/he has served one half of the maximum term of sentence she/he would have served had she/he been convicted. On a bail application filed under this section, the court shall hear the public prosecutor and may order the:
(1) Release of such person on a personal bond with or without surety; or
(2) Release of such person on bail instead of personal bond; or
(3) Continued detention of such person.
This section further proscribes the detention of an undertrial prisoner beyond the maximum period of punishment prescribed for the offence that she/he is alleged to have committed. Therefore, in effect, this section prescribes the maximum period an undertrial can be detained in any case.