PROBATION OF OFFENDERS ACT 1958

PROBATION OF OFFENDERS ACT 1958

THE PROBATION OF OFFENDERS ACT, 1958

ACT NO. 20 OF 1958AAN ACT TO PROVIDE FOR THE RELEASE OF OFFENDERS ON PROBATION

[16th May, 1958.]

Short title extent and commencement.1. Short title extent and commencement. (1) This Act may be called the Probation of Offenders Act, 1958.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different parts of the State.

Definitions. 2. Definitions. In this Act, unless the context otherwise requires,- (a) "Code" means the Code of Criminal Procedure, 1898 (5 of 1898); (b) "probation officer" means an officer appointed to be a probation officer or recognised as such under section 13; (c) "prescribed" means prescribed by rules made under this Act ; (d) words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1898 5 of 1898). shall have the meanings respectively assigned to them in that Code.

Power of court to release certain offenders after admonition. 3. Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860.) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then. notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. ---------------------------------------------------------------------- 1 Madras (1.12.62) Vide Home Dept. No. G.O. MS No.3698, dt. 2.11.62. Amended in Maharashtra by Mah. Act 31 of 1969. Extended to and brought into force in Dadra and Nagar Haveli (w.e.f. 1.7.65) by Reg. 6 of 1963, s. 2 and Sch.I. Extended to the Union territory of Pondicherry by Act 26 of 1968, S. 3 and Schedule. Extended to Goa, Daman and Diu by Reg. 11 of 1973, s.3 & Sch. ----------------------------------------------------------------------- 734 Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Power of court to release certain officers on probation of good conduct. 4.Power of court to release certain officers on probation of good

conduct. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 735

Power of court to require released offenders to pay compensation andcosts. 5. Power of court to require released offenders to pay

compensation and costs.(1) The Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay- (a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence ; and (b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account

any amount paid or recovered as compensation under sub-section (1) in awarding damages.

Restrictions on imprisonment of offenders under twenty-one years ofage. 6. Restrictions on imprisonment of offenders under twenty-one

years of age. (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprison- ment (but not with imprisonment for life), 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 the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender

referred to in sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

Report of probation officer to be confidential. 7. Report of probation officer to be confidential. The report

of a probation officer referred to in sub-section (2) of section 4 or

sub-section (2) of section 6 shall be treated as 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.

Variation of conditions of probation.

8. Variation of conditions of probation. (1) If, on the application of a probation officer, any court which passes an order under section 4 in respect of an offender is of opinion that in the interests of the offender and the public it 736 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.

Procedure in case of offender failing to observe conditions of bond. 9. Procedure in case of offender failing to observe conditions of

bond. (1) If the court which passes an order under section 4 in res- pect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.

(2) The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.

(3) If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith- (a) sentence him for the original offence; or (b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offence. 737

Provision as to sureties. 10. Provision as to sureties. The provisions of sections 122, 126, 126A, 406A, 514, 514A, 514B and 515 of the Code shall, so far as may be, apply in the case of bonds and sureties given under this Act.

Courts competent to make order under the Act, appeal and revision andpowers of courts in appeal and revision. 11. Courts competent to make order under the Act, appeal and

revision and powers of courts in appeal and revision. (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.

Removal of disqualification attaching to conviction. 12. Removal of disqualification attaching to conviction. Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence.

Probation officers.

13. Probation officers. (1) A probation officer under this Act shall be- (a) a person appointed to be a probation officer by the State Government or recognised as such by the State. Govern- ment ; or 738 (b) a person provided for this purpose by a society recognised in this behalf by the State Government; or (c) 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.

(2) A court which passes an order under section 4 or the district magistrate of the district in which the offender for the time being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order. Explanation.-For the purposes of this section, a presidency town shall be deemed to be a district and chief presidency magistrate shall be deemed to be the district magistrate of that district.

(3)A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the district magistrate of the district in which the offender for the time being resides.

Duties of probation officers. 14. Duties of probation officers. A probation officer shall, subject to such conditions and restrictions, as may be prescribed,- (a) inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court ; (b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment ; (c) advise and assist offenders in the payment of compensa- tion or costs ordered by the court ; (d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under sec- tion 4; and (e) perform such other duties as may be prescribed.

Probation officers to be public servants. 15. Probation officers to be public servants. Every probation officer and every other officer appointed in pursuance of this Act shall, be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Protection of action taken in good faith. 16. Protection of action taken in good faith. No suit or other legal proceeding shall lie against the State Government or any probation officer or any other officer appointed under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder. 739

Power to make rules.

17. Power to make rules. (1) The State Government may, with the approval of the Central Government, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: - (a) appointment of probation officers, the terms and conditions of their service and the area within which they are to exercise jurisdiction; (b) duties of probation officers under this Act and the submission of reports by them ; (c) the conditions on which societies may be recognised for

the purposes of clause (b) of sub-section (1) of section 13 ; (d) the payment of remuneration and expenses to probation officers or of a subsidy to any society which provides probation officers ; and (e) any other matter which is to be, or may be, prescribed.

(3) All rules made under this section shall be subject to the condition of previous publication and shall, as soon as may be after they are made, be laid before the State Legislature.

Saving of operation of certain enactments. 18. Saving of operation of certain enactments. Nothing in this Act shall affect the provisions of section 31 of the Reformatory

Schools Act, 1897 (8 of 1897), or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), 1* * *, or of any law in force in any State relating to juvenile offenders or borstal schools.

Section 562 of the Code not to apply in certain areas. 19. Section 562 of the Code not to apply in certain areas. Subject to the provisions of section 18, section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought into force. ----------------------------------------------------------------------- 1 Omitted by Act 46 of 1978, s. 2O (w.e.f. 2.10.1979). -----------------------------------------------------------------------

SCOPE OF APPLICATION OF SECTION 360 OF THE Cr.P.C.

Chhanni v State of Uttar Pradesh, 2006 Cri.L.J.4068(SC)

(A)   Criminal P.C. (2 of 1974) S.360 – Probation of Offenders Act (20 of 1958), S.4 – Applicability – Provisions of S.360 of Criminal P.C. – Wholly inapplicable in areas where Act is made applicable – Provisions of two statutes have significant differences – General Clauses Act 10 of 1897), Sec.8.

Enforcement of Probation Act in particular area excludes the applicability of the provisions of Ss.360, 361 of the Code in that area.  (Para 8).

    Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishment with death or imprisonment for life. The scope of S.4 of the Probation of Offender’s Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. S.360 of the Code does not provide for any role for Probation Officers in relation to supervision and other matters while Probation Act does make such a provision. While S.12 of Probation Act states that the person found guilty of an offence and dealt with under S.3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain any parallel provision. Two statutes could not be intended to  co-exist at the  same time in the same area.

         xxx              xxx              xxx    

RELEVANT PROVISIONS OF THE CRIMINAL PROCDURE COURT

357. Order to pay compensation.

(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied-

(a) In defraying the expenses properly incurred in the prosecution,

(b) In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion, of the court, recoverable by such person in a Civil Court;

(c) When, any person is convicted of any offence for having caused the death of another person or of having abetted the commission of shelf all offence, in paying in, compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) When any person is convicted of any offence which includes theft, criminal, misappropriation, criminal breach of trust or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal his elapsed, or if an, appeal be presented, before the decision of the appeal.

(3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury reason of the act for which the accused person his been so sentenced.

(4) An order under this section may also be made by all Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section.

STATE AMENDMENTS

WEST BENGAL:

(a) In sub-section (1), for the words and brackets "When a court imposes a sentence of fine or a sentence including a (sentence of death) of which fine forms a part, the court may, when passing Judgment orders the whole or any part of the fine recovered to be applied" the words and brackets "When a court imposes a sentence or fine or a sentence (including it sentence of death) of' which fine forms a part, the court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Schedule Tribes, except when both the accused person and the person against whom an offence has been committed belong either to Scheduled Castes or to Scheduled Tribes shall, when passing judgment order the whole or any part of the fine recovered to be applied-"shall he substituted.

(b) For sub-section (3) the following subsection shall be substituted, namely.

(3) When a court imposes a sentence, of' which fine does not form a part, the court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Scheduled Tribes, shall, when passing Judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

Provided that the court may not order the accused person to pay by way of compensation any amount if both the accused person and the person, against whom an offence has been committed belongs either to Scheduled Castes or to Scheduled Tribes."

(c) After subsection (5), the following Explanation shall he inserted, namely.

Explanation. for the purposes of' the section the expression "Scheduled Castes" and "Scheduled Tribes" shall have the meaning respectively assigned to them in clauses and (25) of' Article 366 of the constitution of India".

[Vide Act 33 of' 1985. sec. 3].

360. Order to release on probation of good conduct or after admonition.

(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.

361. Special reasons to be recorded in certain cases.

Where in any case the court could have dealt with-

• 1. An accused person under section 360 or under the provisions of the Probation of offenders Act, 1958 (20 of 1958), or

  2. A youthful offender under 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, but has not done so, it shall record in its judgment the special reasons for not having done so.

SOME RULINGS : B.S.M. Ganganna v. State of Karnataka and others, 1987 Cri.L.J. 561: “In the case of State of Kerala v. Chellapppan George, 1983 Cri.L.J. 1780, the Kerala High Court has, after referring to the provisions contained in S.8 of the General Clauses Act, held that there could be no ambiguity in regard to the result S.19 of the Act, and that is, if in any State or part of the State the Act has been brought into force, S.562 of the Code of 1898 shall cease to apply. With the coming into force of the Act in the State, S. 19 of the Act automatically came into operation and from that moment the provision are applicable in the State and not the provisions of S. 562 of the Code of 1898, and therefore by virtue of S.8(1) of the General Clauses Act, it myst be held that in the State where the provisions of the Act have been brought into force, the provisions of S.360 of the new code are wholly inapplicable.”

State of Himachal Pradesh v. Lal Singh and others, 1990 Cri.L.J. : Criminal P.C. (2 of 1974), Ss 360, 361 – Probation of Offenders Act, (958, Ss 19,1 – Enforcement of Probation of Offenders Act in particular area or State – S.360, Cr.P.C. becomes inapplicable – Reference to S.562 of old Cr.P.C. in S.19 of Probation Act – Has to be read as reference to S.360 of new Cr.P.C. by virtue of S.8(1) of General Clauses Act – S.361, Cr.P.C. However, applies with full force.

Section 8 of the General Clauses Act, 1897:

8. Construction of references to repealed enactments.- (1) Where this Act, or any (Central Act) or regulation made after the commencement of this Act, repeals and re-enacts, with or without notification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

(Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any (Central Act) or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted.