The term “Probation” is derived from the Latin word “probare”, which means to test or to prove.Probation system is based on reformative theory.A prison sentence no longer recognizes the jail sentence as the only course of care to ensure the safety of society. The Probation of Offenders Act, 1958 is very helpful especially in the present context of prison reform.The object of Criminal Law is more inclined towards the reformation of the offender than to punish him. Instead of keeping an accused with hardened criminals in a prison, the court can order personal freedom on promise of good behaviour and can also order a period of supervision over an offender. The alternative punishment measure, i.e. probation and the theory of reform penalty can be achieved only by the cooperation of the judiciary and the administration. The earliest provision to have dealt with probation was section 562 of the Code of Criminal Procedure, 1898. After amendment in 1973 it stands as section 360 of The Code of Criminal Procedure, 1973. The Probation of Offenders Act, 1958 has been enacted on the premise that certain offenders should be reformed by counselling and rehabilitation rather than throwing them into jail by being regular offenders. It’s objective is to have a person who is put on probation as a responsible member of society while retaining contact with his or her family and community support sources.An accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals.The Act is based on a reformative approach which has come over the years from the Doctrine of Deterrence.Probation is the most important or effective method of treatment. Once on probation, a person may be ordered to engage in an evaluation of drug abuse or domestic violence to determine if treatment is necessary. The Probation of Offender Act, 1958 saves minor offenders from becoming regular criminals.
A probation official is an officer who regularly meets people sentenced to a supervised probation period. The majority of the offenders placed on probation are first time offenders. Placing any one on probation is a way for the court to prevent offenders from incarceration. The probation officer focuses on the offender’s concern or desire. He tries to solve his concern. It aims to make the offender a productive member of the community. The probation officer plays a critical or important role. He is at the forefront of the rehabilitation of the prisoners.
The offenders selected under the supervision of probation officers are allowed to serve a criminal sentence within the community. A probation sentence can require a criminal to pay fines or restitution or seek advice on substance abuse or for problems with his or her health or family. Probation control is one of the ways for courts to punish people who are accused of criminal activity. Infractors undertake to the court to behave properly, to prevent more crimes and to comply with the terms of the warrant. Normal supervisory requirements include:
Based on the circumstances of the case, additional conditions can be imposed by the Court. Examples can contain:
The trial court is expected to provide a pre-sentence report with specific details of the prisoner requested to be released by the Court on probation, as given in Section 7 of the Probation of Offenders Act, 1958. On the basis of this report, the judge decides and orders the sentence of the defendant to be released upon probation. The trial officer’s pre-sentence report must include accurate and truthful details about the offender’s character, temperament, history in family and education, job statistics, general circumstances and historical precedents. Impartiality and objectivity are the two most important requirements of a pre-sentence statement to bear witness to the history and behaviour of the offender. Submitting a disciplinary report on the defendant as ordered by the Court is also one of the main tasks of a probation agent. It should include all the details of the offender as well as an evaluative summary of the case of the offender.
Section 13 of the Probation of Offenders Act states rules as to the appointment of Probation Officer.
A probation officer will need to meet, on a monthly or sometimes weekly basis the offender. Based on an assessment of risk/needs, the probation officer may decide the degree of supervision that a person requires (minimum, medium or maximum). It helps to determine how much assistance a person requires. Evaluations assess how a person is engaged in a group, often referred to as their community relations. The assessment also checks how likely another person will commit more crimes. Meeting with the person on probation allows the probation officer to see where additional support is required. Section 14 provides the duties of probation officers that, subject to such conditions and limitations as may be imposed, a probation officer is expected to do:
The probation officer is responsible for overseeing the probationer according to Section 14(b) and Section 18. So a probation officer has main functions, such as investigation, supervision and guidance, counselling and professional control of criminal probation. The probation officer facilitates the rehabilitation of the criminal as a law-abiding member of society. To obtain information about his mistakes or achievements, a detailed review of the life history and background history of the delinquent is needed. In case the criminal refuses to respond favourably to the reform procedures, a proper enquiry would require further limitations on the rights of the criminal. To extract as much information as possible about his antecedents, the probationer must be approached psychologically with the result that information is so obtained that it is possible to assess the chances that the offender is reformed through the probationary process. Monitoring is mainly a police function, so it would be very useful to advise and support the research officer in this police task. Continuous monitoring of the work of the probationer is not necessary or feasible. Supervision of probation can therefore only be carried out through field visits and intermittent contacts. The Probation Officer will fully understand and prescribe steps to resolve issues that can hinder the re-adjustment in a society of the offender. He must actively support the probationer in the process of his rehabilitation. The probationer does not feel continuously pressured or controlled.
When the court awards punishment to an offender, it must make sure that the offender also has rights to rehabilitate. Supervision is one of the strategies that can cure and rehabilitate the offender under the supervision of the probation officer and protect society against the offender. The trial court has a responsibility to mould the offender’s character. The trial court must accept the probationer as he is, that is, with all his faults. He has to distinguish between cases which require very little support and attention, those which respond to guidance and advice and those which require close attention, but which do not respond to his therapy.
The probation officer must comply with the requirements of the court. In the event that the probationer violates terms, the check agent must report the probation order to the court. The trial officer must maintain the balance between the offender’s recovery and the safety of society. In this sense, he has double work. If the probationer makes no improvement in his actions, he would then have to act as a guardian for society. The probation officer must establish a relationship with the offender and create faith in him in the mind of the offender during the probationary period. He must also construct and give him the confidence in the offender in deciding his own course. The probation officer must stand by him in order to provide him with appropriate guidance and suggestions and information, which will enable him in cooperating with the probation officer to carry out rehabilitation programs.
The probation officer is to act as a link between the probation and the Court, as the prime duty of the probationer under his charge is the defence of the interest. The court may require that the terms of the probation order differ or that the probationary bond be exercised. When he finds that the progress of the probationer is adequate in adapting to regular life in society.
In order that the probationary officer does not resort to violence, he shall assist with social rehabilitation. The probation officer will try to secure the probationer for this purpose:
In order to monitor progress in rehabilitating discharged probationers during such periods as may be prescribed by the Chief Probation Superintendent and to submit a follow-up report to the district probation officer and the Chief Probation Superintendent, the Probation officer will continue to keep contact with discharged probationers. The probation officer can not function as a supervisor without the cooperation of the police. It is significant for the role of the police. Two organizations of the State are the trial officer and the police and the goals are largely identical. The entire outdoor rehab scheme will fail because the priorities and aims are different, as it is obvious that police will show a desire to support probation officers. The police have also played a key role in the rehabilitation and socialization of the institutions’ young criminals. It is believed that the public does not accept him when an individual is released from a domestic institution. Society would tolerate him: otherwise, he will engage again in anti-social activities and repetitive crimes. In this respect, it is the duty of the police officer to restore such persons to society and also to ensure that other agencies such as panchayat etc. are aware of their duty to help him to socialise and carry out his ordinary social work. In this situation, the probation officers must perform the same form of tasks, support the offender to recover and adjust the offenders to other members of society.
Section 3 of the Probation of the Offenders Act,1958 deals with the power of court to release the offender after admonition. An Admonition, in literal terms, means a firm warning or reprimand. Section 3 says how the offender is benefited on the basis of admonition after satisfying the following conditions:
When any person is found guilty of committing an offence under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code,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 An offender should not previously be convicted for the same offence. The Court considers the nature of the offence and the character of the offender.
Section 4 of the act deals with the power of the court to release certain offenders on probation of good conduct.
As per Section 4, if any person is found guilty of having committed an offense 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 behavior.
Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or imprisonment for life. The Court has to consider the circumstances of the case including the nature of the offence and the character of the offender. The court may pass a supervision order to release the offender on probation of good conduct. The supervisory period is not to be shorter than one year. The probation officer must supervise the individual for such a span in such a situation. In the supervisory order, the name of the probation officer should be listed.
The Court can direct the offender to execute a bond, with or without sureties, to appear and receive sentence when called upon during such period which should not exceed a period of three years. The court may release the offender on good behaviour.
The Court may put appropriate conditions in the supervision order and the court making a supervision order explain to the offender the terms and conditions of the order. Such supervision order should forthwith be furnished to the offender.
Probation officer’s report is not compulsory to enforce this rule, but if the information is required on record, the Court shall take into account the probation officer’s information before granting a probation order for good behaviour.
While granting the benefit under the Act the court shall take into consideration the nature of the offense. If the offense is not trivial in nature, the court should not be lenient in granting such a benefit. Power to release on probation is discretionary and has to be exercised in appropriate cases.
To conclude, it can be said that the measure of alternative punishment i.e., probation and the objective of theory of reformative punishment would be achieved only if the judiciary and the administration work together. It would be of great benefit for a country like India, where the jails are often overcrowded, with frequent human rights violations which would harden the human inside a person. Probation is an affirmation of the human inside every being and it must be given importance. The reform and rehabilitation process have to be worked out in context of existing social conditions to achieve the ultimate objective to reclaim back those offenders to orderly society