The Probation of Offenders Act, 1958

THEORIES OF PUNISHMENT
Punishment is the penalty on someone as a result of their wrongdoing. ‘Theories of
Punishment’ is that area of study which helps us to understand the jurisprudential and logical
reasoning behind punishing a criminal.
The most important theories of punishment -
1. Retributive Theory - When an offender breaks the law, justice requires that they suffer in
return, and that the response to a crime is proportional to the offence. Proportionality requires
that the level of punishment be related to the severity of the offending behaviour. However,
this does not mean that the punishment has to be equivalent to the crime. A retributive system
must punish severe crimes more harshly than minor crimes. The crime's level of severity can
be determined in multiple ways. Severity can be determined by the amount of harm, unfair
advantage or the moral imbalance that the crime caused.

2. Deterrence Theory - Deterrence is the idea or theory that the threat of punishment will
deter people from committing crime and reduce the probability and/or level of offending
in society. Criminal deterrence theory has two possible applications: the first is that
punishments imposed on individual offenders will deter or prevent that particular offender
from committing further crimes; the second is that public knowledge that certain offences
will be punished has a generalised deterrent effect which prevents others from committing
crime.

3. Preventive Theory - Preventive theory of punishment seeks to prevent prospective crimes

by disabling the criminals. Main object of the preventive theory is transforming the criminal,
either permanently or temporarily -
- By creating the fear of punishment
- By disabling the criminal permanently or temporarily from committing any other crime
- By way of reformation and making them a sober citizen of the society

4. Compensatory Theory – Rehabilitation of the victim is equally important as punishing the

offender. Hon’ble Supreme Court in the case of In the case of Hari Singh v. Sukhbir Singh,
1988, has held, “It may be noted that this power of Courts to award compensation is not
ancillary to other sentences but it is in addition thereto. This power was intended to do
something to reassure the victim that he or she is not forgotten in the criminal justice system.
It is a measure of responding appropriately to crime as well of reconciling the victim with the
offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward
in our criminal justice system.” The Code of Criminal Procedure, 1973 under section 357
enables the court to order the offender to pay compensation to the victim.

5. Reformative Theory – JURISPRUDENTIAL ESSENCE OF THE PROBATION OF

OFFENDERS ACT, 1958 -- Reformative theory considers punishment to be curative more
than to be deterrent. According to this theory, crime is like a disease which cannot be cured
by killing rather it can be cured with the medicine with the help of process of reformation.
There has been an increasing emphasis in the reformation and rehabilitation of the offender as
a useful and self-reliant member of the society without subjecting him to deleterious effect of
the jail life. The Probation of Offenders Act, 1958 derives its jurisprudential essence from the
Reformative Theory of Punishment. In the case of Musakhan v. State of Maharashtra,
1976 SC, the Hon’ble Supreme Court propounded that the Probation of Offenders Act is a
social legislation which is meant to reform juvenile offenders so as to prevent them from
becoming hardened criminals by providing an educative and reformative treatment to them
by the Government.
The Statement of Objects and Reasons of the Act provides for the rationale for the enactment:
to give the benefit to offenders by releasing them on probation on good conduct instead of
sentencing them to imprisonment.

ISSUE – Whether Probation of Offenders Act would override section 360 of crpc?
Section 360 of Crpc also enables the court to release the offender on probation of good
conduct or after admonition.
In the states where the Probation of Offenders Act is applicable then it would exclude the
application of section 360. Probation of Offenders Act is a special piece of legislation and
hence would have an overriding effect.

ISSUE – Whether the benefit under Probation of Offenders Act can be given to the
person who has committed any offence for which the statute provides a minimum
punishment?
The Hon’ble Supreme Court in the latest case of Lakhvir Singh v. State of Punjab, 2021
SC has settled this law point. The court held that the benefit of the Act is NOT EXCLUDED
by the provision of minimum sentence for the impugned offence under the substantive law.
The court has substantiated the decision by the following reasoning -
- Section 3 and 4 of the Act uses the words – “notwithstanding anything contained in any
other law for the time being in force”. This gives an overriding effect to this beneficial
legislation over substantive laws which provides for minimum sentence for the concerned
offence.
- The Act is a beneficial piece of legislation in favour of the accused and gives discretion to
the judge under section 3 and 4 whether to apply the Act of not. This discretion exists
irrespective of the minimum sentence provided by the substantive law.
- Section 18 of the Act that provides for saving clause does not include any other offence
(except 5(2) POCA) where a mandatory minimum sentence has been prescribed. This
suggests that the Act maybe invoked in every offence except 5(2) of POCA.
However, the court observed that if the special statute was bought into force after the
Probation of Offenders Act, then the clause of minimum sentence would have the effect and
the accused can’t be released on Probation unless he serves the minimum sentence.

ISSUE – Whether the offender can claim the benefit of section 3 and 4 as a matter of
right?
The offender cannot claim the benefit of the Act as a matter of right (unless the case falls
under section 6). The court has to consider various circumstances and after proper
examination the court decides whether the case is a fit case for the purposes of section 3 or 4.
The court has to look into the circumstances of the case ‘including’ the nature of the offence
and the character of the offender. The word ‘included’ has been used and therefore the list is
not exhaustive.

ISSUE – What is the relevant date for calculating the age of the offender for the
purposes of the Act?
In the case of Ramji Missar v State of Bihar, 1963 SC, the four judge bench of the Supreme
Court has settled the law. The court has held that the relevant date to calculate the age of the
accused for the purpose of the Act is the date of conviction and not the date on which the
offence was committed.

ISSUE- What is the nature of section 6 of the Act?

Section 6 of the Act is injunctive in nature. The provision puts an injunction on the court not
to impose sentence on person who is below the age of 21 years of age and is found to have
committed an offences punishable with imprisonment but not with imprisonment with life.
As per section 6 the general rule is that if the offender is below 21 years of age and is found
to have committed an offence punishable with imprisonment other than imprisonment for
life, then his case SHALL be dealt under section 3 or section 4. However, in exceptional
circumstances if the court is of the judicial opinion that the case must be dealt otherwise, the
court may after recording its reasons for the same sentence the offender to undergo
imprisonment.
Section 6 deserves to be liberally construed so that its operation may be effective and
beneficial to the young offenders who are prone more easily to be led astray by the influence
of bad company.

ISSUE – Whether the plea of application of section 6 be raised in the Supreme Court
for the first time?
Even though the point of applicability of section 6 was not raised before the Magistrate or the
High Court, the Supreme Court is bound to take the notice of the section and give its benefit
to the applicant.

ISSUE – When is it mandatory for the judge to call for the report from the probation
officer and consider that report?
- Section 4(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.
- Section 6(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.

ISSUE – Who is the appointing authority of a probation officer for the purposes of the
Act?
Section 13(1) enables certain authorities to appoint a probation officer.
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 Government; or
(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.

ISSUE – Whether an offender who has been released after admonition (section 3) or on
probation (section 4) is barred from taking government employment being an offender?
According to section 12 of the Act, on offender who has been released on probation shall not
suffer disqualification attaching to a conviction of the offence for which he has been
convicted.
However, the proviso to section 12 provides that the offender would lose the benefit of the
main provision in case he/she was subsequently sentenced to original offence after being
released under section 4 on probation.