As early as the late nineteenth century, the criminal justice system in India incorporated the philosophy of “Probation of offenders”.
Section 562 of the Code of Criminal Procedure, 1898 provided that any person not under twenty-one years of age convicted of an offence not punishable with imprisonment for not more than seven years, or any person under 21 or any woman convicted of an offence not punishable with death or [imprisonment for life], and without being previously convicted, can be released on probation of good conduct.
Eventually, the Probation of Offenders Act, 1958 was enacted by the Indian Parliament. Section 19 of the Act of 1958 repealed Section 562 from the old Code.
In the nearly 62 years that have followed, it can be safely concluded that these salutary provisions have been left only to collect dust and bear silent testimony to what could have been if the concept of probation or suspended sentencing were to be followed by the Courts in India.
There is no doubt that there is a slight variation in the concepts of “probation” and “suspended sentencing” inasmuch as, it is possible as in many countries of an offender receiving a suspended sentence without any conditions attached or any person/authority supervising the released offender.
Whereas, under the scheme of probation, particularly under the Act of 1958, the release of a convict is upon him entering into a bond while remaining under the supervision of a probation officer, who is a public servant obligated to perform the duties entrusted under the ct.
In India, case law would show that more often than not, the provisions of the Probation of Offenders Act, 1958 are seldom invoked. The courts lean against the release of an offender on probation rather than interpreting the Act in a manner that subserves the purpose of its legislation.
The recent judgment of the Bombay High Court in Nishanth Harishchandra Salvi v. State Of Maharashtra noted several instances where the Act has been interpreted. In Para 9, it has observed,
"The P. O. Act is still in force, but 50 years down the line with ever increasing crime rate, the benefits of the P.O. Act, by judicial trend are not being extended to large number of cases. This is not to say that it ought not to be extended in appropriate cases. The benefits have not been encouraged in cases involving socio-economic offences, offences involving sex perversity cases involving moral turpitude or moral delinquency, cases involving misappropriation of property, gold smuggling, food adulteration offences, offences under Prevention of Corruption Act, and even in cases under Section 304A of IPC. Judicial trend has been cautious in not extending probation to persons who are educated and experienced in life and deliberately flout the law with impunity and to those who are potential dangers to the society."
The 41st report of the Law Commission, in 1969, introduced the concept of “suspension of sentence”, which later on came to be embodied in section 389 of the Code of Criminal Procedure 1973. It was to be imposed in a very limited area of operation, where convicts seeking appeal, in certain cases, could have their sentences suspended and consequently let off on bail, pending the appeal.
For many years, several countries have had a well-grounded system ingrained in their administration of criminal justice where in several cases, (where the offences are mostly petty/common and the maximum sentence is less than two or three years as the case may be) a suspended sentence is awarded.
When a Court imposes a suspended sentence, it is not that the seriousness of the crime is not recognized. Apart from plainly being merciful and allowing the convict to remain in circulation in society - with the Damocles’ Sword of being sent to prison hanging over hs head as a deterrent - there is probably less chance of the offender, reoffending.
The biggest benefit is mutual - to the offender thus let off, as well as to those who are already in prison. The prison population is minimized, thereby maximizing the sparse facilities for the existing prison population. The other by-product of such a situation is preventing a “soft criminal” from having to spend quality time with the hardened ones.
On being invited by the Haryana State Legal Services Authority, two judges of the Supreme Court, namely, Justice Adarsh Kumar Goel (now retired) and Justice Uday Umesh Lalit visited the Faridabad Jail and Observation Home on June 3, 2018. On their visit, they found countless deficiencies and noted that lack of facilities and the impediments for speedy trials are to be dealt with throughout the country.
Thereafter, the Supreme Court by its order dated September 25, 2018, observed that there is dire necessity of reforms in prison administration and prison management. The Supreme Court then proceeded to constitute a Committee on Prison Reforms headed by Justice Amitava Roy.
Thus there should be a concerted effort in alleviating the lot of the incarcerated. This effort cannot succeed unless a multidisciplinary approach is undertaken in that regard. The problems of lack of speedy trial, long under trial detentions, suffering in prison due to sub-human facilities are not isolated and can be substantially improved by judicial, political and executive will.
To sum up, in my humble opinion, it is necessary to mirror the thought process of other progressive countries and to ensure the dignity of the prison population under Article 21 of the Constitution. To this end, a National Judicial Policy should be formulated by which it would be compulsory in all cases where the Act of 1958 applies, to first exhaust the option of releasing the offender/convict on probation and thereafter proceed for sentencing and pronouncing jail time.
Parliament may also seek to amend the CrPC 1973 suitably, to incorporate suspended sentencing as a genuine/first option before other sentences like fine, imprisonment etc is awarded.
The comparatively recent introduction of plea bargaining under Chapter XXI A of the CrPC is another progressive step in getting offenders to confess to their crimes and removing the necessity of a painstaking and expensive trial.
An effective and liberal plea bargaining mechanism, in conjunction with handing out suspended sentences/probation, can be a huge step in reducing pendency of petty criminal cases in courts, as well as preventing overcrowding of jails thereby ensuring the welfare of a large section of the population.